Jia (Migration)

[2022] AATA 2723

Jia (Migration) [2022] AATA 2723 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Liangna Jia

CASE NUMBER:  2115361

HOME AFFAIRS REFERENCE(S):          BCC2021/1784552

MEMBER:Kira Raif

DATE:9 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 09 February 2022 at 10:39am

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – bogus documents – member of the family unit – genuine and ongoing relationship – new relationship with an Australian citizen – financial hardship – contribution to the community – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 98, 101-105, 107, 109, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in March 1986. She was granted the Skilled visa in September 2017 and a Resident Return visa (RRV) in September 2021. In October 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that she did not comply with ss. 101 and 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision

3. The applicant appeared before the Tribunal on 18 January 2022 and 8 February 2022 to give evidence and present arguments. The applicant initially requested that her husband Mr Tan would give oral evidence but the Tribunal has indicated its acceptance of his written evidence, as well as the evidence about her relationship with Mr Tan and the hardship that the cancellation of the visa would cause and the applicant agreed there was no need to take oral evidence from Mr Tan. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the Notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss. 101 and 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made an application for a Skilled visa in March 2017 on the basis of meeting the secondary criteria. The applicant claimed to be a de facto partner of the primary visa applicant Mr Zhen Qiao He. The applicant stated that her de facto relationship with Mr He commenced in August 2015. The applicant completed a declaration on the form that the information on the form and any attachment was complete and correct.

10. In support of the claimed relationship the applicant provided a number of documents, including

    -correspondence from Flybuys addressed to the applicant at a Kareela address

    -Commonwealth bank statements in the applicant’s name at the Kareela address for the period between May 2015 and April 2016 and at a Rhodes address from May 2016 to March 2017,

    -gas bills in joint names of the applicant and Mr He for the period from August 2016 to January 2017,

    -the applicant’s own bank statements from Commonwealth bank issued at the Kareela address,

    -bank statements in joint names of the applicant and Ms Jia, issued to the Rhodes address, for the period from May 2016 to March 2017,

    -a statement entitled ‘Love Story’ in which Mr He claimed that he and the applicant had lived together from August 2015 when their de facto relationship began.

11. The applicant and Mr He were granted the Skilled visas in September 2017. The primary decision record indicates that following the visa grant, the Department conducted a forensic examination of the presented documents which determined that the letter from Flybuys to the applicant, the applicant’s Commonwealth bank records and the joint bank records, as well as the gas bills had residential addresses that did not match the residential addresses officially linked and registered to these documents. The delegate concluded that these were bogus documents.

12. The primary decision record also indicates that the applicant and Mr He provided different addresses in their Incoming Passenger Cards when arriving in Australia after August 2015 and that they never travelled overseas together.

13. In her response to the NOICC the applicant describes her previous abusive relationship and feeling sad and depressed. The applicant states that this relationship lasted from May 2012 to July 2016 when she moved out from the family home. The applicant states that she wanted to prove that she was not a failure and tried to obtain Australian residence on her own. The applicant states that she approached an agent, who told her she could apply for a visa. She then met Mr He who eventually suggested having a relationship but she refused. The applicant states she lived in fear of being harassed by Mr He.

14. In her oral evidence to the Tribunal the applicant states that she trusted the agent who told her there was no risk and that only genuine documents would be provided. The applicant claims that she did not know what documents the agent had submitted – as she has only provided genuine document to the agent – and did not understand the basis on which her application was made. The applicant later admitted that she was aware that she was applying for a Skilled visa on the basis of having a romantic relationship with Mr He but the agent told her that a romantic relationship was sufficient for the visa.

15. The Tribunal questioned the applicant about her relationship with Mr He. The applicant told the Tribunal that she had some conversations with Mr He and found him to be a caring and helpful person. She thought they had a ‘romance’ and spoke about private affairs and she considered their relationship as boyfriend and girlfriend. In her response to the NOICC the applicant stated that around 2018 Mr He suggested a relationship but she refused. Her oral evidence to the Tribunal was somewhat different as the applicant claimed that she believed Mr He to be nice and wanted a romantic relationship with him. The applicant clamed and they were boyfriend and girlfriend. When asked to describe the nature of their interactions, the applicant told the Tribunal that they had telephone contact and met a few times and liked each other and she considered that to be a relationship. The applicant told the Tribunal that Mr He came to Sydney three times and they met in person about five times altogether. She states that when she travelled to China for several months, they did not have contact. In the Tribunal’s view, that kind of interactions (limited to a few meetings and some phone contact) does not amount to a de facto relationship and is unlikely to be considered as any kind of relationship at all, including boyfriend and girlfriend relationship. At best, the applicant and Mr He had some telephone contact and a few outings. The Tribunal does not consider a few meetings and telephone contact and a handful of shared meals to constitute a relationship and, importantly, the Tribunal does not accept that the applicant herself considered this to be a relationship. There is no evidence that the applicant and Mr He shared finances or had joint assets and liabilities (the applicant initially told the Tribunal she ‘could not remember’ if they provided each other with financial support and later said that they did not), there is no evidence that they had planned and undertaken social activities as a couple and the applicant refers to the three or five occasions when Mr He travelled to Sydney when they had meals together. There is no evidence that they represented themselves to others as being in a de facto relationship and the applicant confirmed in her oral evidence to the Tribunal that she did not introduce Mr He to anyone else as her boyfriend or as her de facto partner. There is no evidence that they shared a household (the applicant claims they never lived together) or that they had a mutual commitment to an exclusive relationship and viewed it as a long term one. Indeed, in her declaration in response to the NOICC the applicant stated that in 2018 Mr He suggested for them to have a permanent relationship but she refused. (The applicant explained to the Tribunal that she meant a sexual relationship but there is no reference to that in her written statement in response to the NOICC.) The applicant ultimately told the Tribunal that they had a romantic relationship but never a de facto relationship with Mr He but given the limited interactions between them, and the applicant’s evidence that she did not introduce Mr He to anyone as her boyfriend, the Tribunal is not satisfied they had a romantic relationship. The Tribunal does not accept the applicant’s evidence that she believed she had a romantic relationship with Mr He.

16. For the purpose of establishing the breach, the Tribunal has regard to the applicant’s evidence that she did not have a de facto relationship with Mr He from 2015 as she was in a relationship with another person until 2016. The applicant’s evidence also indicates that she never lived with Mr He. The applicant’s evidence is that she was in a relationship with another person until July 2016 and later refused Mr He’s offer of a relationship. Whatever the applicant believed about her relationship with Mr He, it lacked all the indicia of a de facto relationship. Having regard to the applicant’s evidence, the Tribunal finds that the applicant gave incorrect answers on the application form when she claimed to be in a de facto relationship with Mr He from August 2015 and to have been living with him. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided and that she did not comply with s. 101 of the Act. The Tribunal acknowledges the applicant’s evidence that it was the agent who prepared the papers but under s. 98 of the Act, the applicant is taken to have filled in the forms even if it was done by another person.

17. The Tribunal further finds that the joint bank statements and various documents showing the applicant and Mr He residing at the same address are bogus documents because they had been altered by a person with no authority. The applicant’s evidence confirms that she had never lived with Mr He an6d did not have a joint bank account. The Tribunal finds that the applicant gave, presented or provided to an officer, or the Minister, bogus documents or caused such documents to be so given, presented or provided. The Tribunal finds the applicant did not comply with s.103 of the Act.

18. The Tribunal finds that there was non-compliance with ss. 101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

19. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

20. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

21. The correct information is that the applicant was not in a de facto relationship with the primary visa applicant, Mr He at the time she made the application for the visa and did not live with him. That is, the applicant was not his spouse or de facto partner and not a member of Mr He’s family unit.

    The content of the genuine document (if any)

22. The genuine documents would not show the applicant and Mr He residing at the same address. The genuine documents would not show that they had a joint bank account.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

23. The applicant sought the visa on the basis of meeting the secondary criteria. There is nothing before the Tribunal, and the applicant does not suggest, that she met the primary criteria for the visa grant. The applicant sought to meet the secondary criteria as a de facto partner of Mr He and she does not claim to have met any of the alternative definitions of being a member of his family unit. That is, the applicant’s de facto relationship with Mr He was central to her eligibility for the visa and if it was determined that the applicant was not Mr He’s de facto partner, nor a member of his family unit, it is unlikely that she would have been granted the visa.

24. The Tribunal finds that the decision to grant the visa was based, in part but to a significant degree, on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

25. The applicant claims in her response to the NOICC, essentially, that she was in an abusive relationship and wanted to prove herself and to show that she was capable of achieving something (like the Australian residence) on her own. The applicant provided some medical reports and other evidence in support of her claims and the Tribunal is prepared to accept that the applicant was in a relationship prior to the visa grant which she was unhappy about. However, the evidence does not establish, and the Tribunal does not accept, that these matters affected the applicant’s decisions made in relation to the Skilled visa, nor her capacity to understand matters associated with that  application.

26. In her written submission to the delegate the applicant states that she approached an agent who misled her and did not act truthfully. The applicant states that the agent informed her that she could be added to the application of another person and that there would be no adverse impact on her future applications if she is not successful. She claims she provided only genuine documents to the agent. In her statement in response to the NOICC the applicant states that she regrets not checking and confirming the immigration information submitted by the agent.

27. In oral evidence, the applicant told the Tribunal that she did not understand the law and the agent misled her and told her she could be included in the application on the basis of merely a romantic relationship. The Tribunal does not accept that evidence.

28. The applicant’s evidence concerning her relationship with Mr He is outlined above. By March 2017 when the Skilled visa application was made, they had some telephone contact and very limited personal contact. It could hardly be said, in the Tribunal’s view, that they had a ‘romantic relationship’, even if the Tribunal were to accept the applicant’s evidence that she did want to have a relationship with Mr He at the time.

29. The applicant states that she met Mr He on not more than on three occasions and had some phone contact with him. The applicant was aware that she did not have a de facto relationship with Mr He and, in the Tribunal’s view, in March 2017 she did not genuinely believe she was in any relationship with him, given the very limited contact they had. It is hard to describe their interactions as a relationship at that time. The Tribunal has formed the view that the applicant had exaggerated the nature of her relationship with Mr He by claiming there was a romantic relationship when no such relationship existed.

30. The applicant’s evidence is that the agent did inform her of the basis on which she was seeking the visa. That is, the agent did tell the applicant that she would be included in the application as Mr He’s partner. The Tribunal does not accept that the applicant genuinely believed she was in a relationship (however described) with Mr He and that she genuinely believed she was able to seek a permanent visa on the basis of that  relationship. That is, the Tribunal is of the view that, whatever the agent may have advised the applicant and even if she did not understand the meaning of ‘de facto’, she was well aware that she was seeking the visa on the basis of circumstances which did not exist.

31. The applicant claims she trusted the agent, was misled by the agent and made the mistake of not checking the application. The Tribunal accepts that the agent may have misled the applicant about the consequences of her actions (by stating that a visa refusal would be inconsequential) but the Tribunal has formed the view that the applicant was well aware of, and willingly engaged in, the fraud because she was aware she was seeking a visa on the basis of her relationship with Mr He and because she knew such a relationship (either de facto or even ‘romantic’) did not exist. As for the applicant’s evidence that it was the agent who fabricated the bogus documents, the Tribunal is prepared to accept that this may have occurred but in the Tribunal’s view, this does not in any way diminish the degree of the applicant’s culpability in the fraud, as the applicant had willingly sought the visa on the basis of grounds she knew to be false and appears to have been indifferent as to how this would be achieved. Thus, even if the applicant was not actively or directly involved in the preparation of the bogus documents and the provision of answers on the application form, in the Tribunal’s view the applicant would have been aware that the visa was being sought on a false basis and it would have been clear to her that false claims were made on her behalf.

1. The applicant told the Tribunal that she trusted the agent and did not check the content of the form and the documents other than limited personal information. She claims the agent used another email address and she had no access to the documents and did not know what was submitted until she received the letter from Immigration. The applicant states that she made a mistake in trusting the agent and not checking the forms. The Tribunal considers it was the applicant’s responsibility to ensure the application contained correct answers and genuine documents. The Tribunal is also mindful that even if another person completes the application form, it is taken to be completed by the applicant.

2. The Tribunal does not accept the applicant’s suggestion that her health and mental state affected her decision-making capacity at the time. The applicant refers to her abusive previous relationship and states she was affected mentally. While the applicant presented medical evidence about her health and circumstances at the time, the evidence does not indicate that these issues had affected the applicant’s decision-making ability. The Tribunal is mindful that the applicant appears to have had sufficient skills and the presence of mind to engage an agent, instruct the agent, meet Mr He and take social and ‘intimate’ photographs with him and otherwise provide evidence in support of her visa application. The applicant’s actions suggest that she was capable of engaging in rational behaviour and did so. Indeed, the applicant had made a rational and what she believed sensible decision to pay a large fee to the agent in return for obtaining the visa in the most efficient manner. The Tribunal is not satisfied on the evidence before it that the applicant’s decision-making capacity had been adversely affected by her health or any other factor.

3. In her oral evidence to the Tribunal the applicant states that she did not understand different visa categories and was not too sure about specific visa classes. The Tribunal does not accept that evidence. The Tribunal does not accept that, having completed tertiary study in Australia and having made a decision to migrate to Australia, the applicant did not seek information about visa options and was completely ignorant of such matters. The Tribunal does not accept the applicant’s evidence that she was ‘not good’ at these things. The applicant agreed in her oral evidence that she knew that the primary applicant would make an application for a visa and include her as a “romantic partner”. That is consistent with the applicant’s evidence in response to the NOICC.

4. The applicant told the Tribunal that she considered a boyfriend – girlfriend relationship would be sufficient, as this was the advice of the agent, and she did not realise she needed a de facto relationship. Again, the Tribunal does not accept that evidence because the Tribunal does not accept the applicant so completely lacked knowledge and understanding of the visa requirements as to believe she could be included in another person’s application on the basis of very limited contact with the primary visa applicant. the Tribunal has also formed the view that the boyfriend – girlfriend relationship did not exist between the applicant and Mr He at the time the application was made, given their very limited contact and absence of many of the indicia of a relationship. The Tribunal does not accept that the applicant genuinely believed whatever existed between her and Mr He was sufficient for her to be included in the visa application.

5. The Tribunal has formed the view that the applicant was aware of the basis on which her application was made and would have been aware that her relationship with Mr He (if it can be considered as a relationship) was insufficient. The Tribunal has formed the view that  the applicant was aware that her application was made on the basis of a claim (about her relationship with Mr He) that was untrue. Her evidence to the Tribunal is that she only saw personal information on the application form but not the full application which she did not ask to check because she trusted the agent. The Tribunal has formed the view that the applicant was indifferent about the content of her application and had a wilful disregard for the fact that the application contained untruthful information.

   The present circumstances of the visa holder

6. The applicant refers to her relationship with an Australian citizen, Mr Tan, claiming that they married in October 2019. The applicant states that they plan to live together as a family and  her husband has sponsored his parents for the Australian visa. The Tribunal accepts, for the purpose of this review, that the applicant may be in a genuine spousal relationship (she provided to the delegate a copy of her marriage certificate) and accepts that if the cancellation of the visa is to result in the applicant having to depart Australia, that may cause hardship to the applicant and Mr Tan.

7. The Tribunal is mindful that the existence of the relationship may enable the applicant to seek a Partner visa in the future and such an application may be made either onshore or offshore. The Tribunal acknowledges that there are certain difficulties that may be involved in such an application, for example, the application of PIC 4020 and, if the applicant were to apply onshore, Item 3001. There are also considerable costs and delay associated with such an application, which on their own may cause stress to the applicant and her partner and the Tribunal accepts that the uncertainty associated with any visa process may also cause hardship. The Tribunal accepts, generally, that if the applicant’s visa is cancelled and if she was to seek another Australian visa, that would cause considerable hardship to her and her partner, even if the visa is eventually granted.

8. The applicant states that she and her husband own a property. They have plans to build another property. They run a landscaping business together. The Tribunal accepts that evidence.

9. The applicant told the Tribunal that she is a Tibetan Buddhist and every year she attends Buddhist training and rituals and does chanting daily. She is also involved in voluntary activities for the Buddhist community. The applicant refers to her employment and the support she provides to her husband. The applicant provided evidence relating to her partner’s expenses, including mortgage and claims that she contributes to these. The Tribunal accepts, as noted elsewhere, that if the cancellation of the applicant’s visa was to lead to her loss of employment in Australia or her departure from Australia, this may cause hardship to the applicant and her partner and others, including, possibly, financial hardship.

10. In her submission to the Tribunal the applicant referred to her pregnancy and concern for the baby’s welfare. She later provided to the Tribunal evidence of a miscarriage. The applicant states that if she is required to leave Australia, this would delay the possibility of having children. the Tribunal accepts that is so if the couple cannot live together.

11. The applicant states that she visits and provides support to the elderly and disabled children and she wants to continue with such involvement. She wants to study geriatric care in the future. The Tribunal accepts that evidence. The applicant states that if she makes an application onshore, she would be unable to travel to China to see her grandmother, who is in her nineties. The Tribunal acknowledges that this is so.

12. The applicant provided to the Tribunal evidence of some social activities she engaged in with her partner and of her involvement in religious activities, as well as general information about religion in China. The Tribunal generally accepts that  the applicant is well settled in Australia, is participating in various activities, is gainfully employed and has significant family, social, financial and employment links in Australia. The Tribunal accepts that if the cancellation of the visa is to result in the applicant being required to leave Australia, hardship would be caused to the applicant and others.

13. The applicant states that her parents in law have applied for the Contributory Parent visas and her parents intend to apply for the same visas after Covid.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

14. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

15. There are no known instances of non-compliance.

    The time that has elapsed since the non-compliance

16. The application was made in March 2017 and close to five years passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

17. There are no known breaches of the law.

    Any contribution made by the holder to the community.

18. The applicant provided a number of documents concerning her contribution o the community, including involvement in voluntary activities, participation in fund-raising, donations and other activities. She referred to the voluntary activities in her religious community. The applicant refers to her involvement with disabled children and the contribution through providing employment opportunities to others through the landscaping business. The applicant refers to the building of the Pagoda in Orange and her contribution through voluntary work and monetary donation. The Tribunal accepts that the applicant has made a contribution to the community.

19. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s.140.

20. There are no persons whose visas would be cancelled under s. 140 of the Act.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

21. In her response to the NOICC the applicant refers to her pregnancy and subsequent miscarriages. The applicant told the Tribunal that her friend has given birth and she would cook for that friend. The Tribunal accepts that evidence but is not satisfied on the evidence before it that the interests of that newborn child would be affected by the cancellation of the applicant’s visa. The Tribunal does not consider that the best interests of any child would be adversely affected b the cancellation of the visa.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

22. The applicant states in her response to the NOICC that the Chinese government does not permit religious gatherings in large numbers and she would face the loss of opportunity of free belief. The applicant provided to the Tribunal a number of reports concerning the crack-down on religious freedoms in China. The Tribunal considers these somewhat unhelpful as they relate to the general situation in China and not the applicant’s specific circumstances, which is what the Tribunal must consider. In oral evidence the applicant described her religious beliefs and activities and states that she cannot engage in the study of Tibetan Buddhism in China. The applicant states that in China religious activities are forbidden and she would not be able to study or communicate online with her teacher.

23. The Tribunal is prepared to accept, for the purpose of this review only, that the applicant has attended religious activities in Australia and that she may wish to do the same if she is to return to China (which is not necessarily a consequence to the cancellation of her visa). The Tribunal is mindful, however, that the applicant is able to make a valid application for a Partner visa onshore and she is also eligible to seek a protection visa in Australia where her claims would be assessed. If it is determined that the applicant is owed protection, she would not be removed from Australia. Thus, the cancellation of the applicant’s Skilled visa is unlikely to result in the applicant being removed or deported from Australia and need not result in the applicant having to depart Australia. In such circumstances, the Tribunal is satisfied that the cancellation of the visa would not be in breach of Australia’s non-refoulement obligations.

24. The applicant’s partner is in Australia. Her parents are overseas. The applicant is eligible to seek a Partner visa in the future. The Tribunal does not consider that the family unity obligations would be breached.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

25. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will become an unlawful non-citizen and may be liable to be detained and removed from Australia. There is no suggestion that the applicant would be detained indefinitely. The applicant will be able to make visa applications onshore without Minister’s intervention but there are limited types of visas for which she can validly apply onshore. If the applicant is to make a visa application offshore, she may be subject to an exclusion period. If the applicant’s visa is cancelled, she would lose the entitlements she may have acquired as a permanent resident of Australia. The Tribunal acknowledges that if the visa is cancelled, the applicant cannot sponsor her parents for the Contributory Parent visas.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

26. The applicant provided in response to the NOICC psychological evidence which refers to the applicant’s background, general circumstances and the circumstances of her abortion. The report indicates that the applicant and her then partner decided not to keep the baby because she was hoping to continue her education and further her career and because she and her boyfriend were not in a stable relationship and did not have a good financial position. As a result, they decided to have an abortion. The Tribunal is mindful that the information in that report contradicts the applicant’s own evidence in response to the NOICC when she claimed she wanted to have the baby but was forced to have an abortion by the boyfriend who believed she was using him or the baby for the visa. The Tribunal is prepared to accept that  the applicant had experienced a traumatic relationship in the past but as noted above, the Tribunal is not satisfied that the circumstances of that  relationship affected the applicant’s actions or decisions in relation to her Skilled visa application.

27. The applicant provided a number of character reference and the Tribunal accepts that those who provided the references believe the applicant to be a good person.

28. The applicant states that she cannot face her parents and elderly grandmother if she was to return to China. The applicant refers to their health and states that they would be affected if her visa is cancelled. The Tribunal accepts that the applicant’s family in China worry about her and prefer for her to remain in Australia. The Tribunal is mindful that the applicant does have the option of seeking a Partner visa on the basis of her present relationship, whether that application is made onshore of offshore. The Tribunal acknowledges that there can be no guarantee of visa grant and that in any case, there are significant costs and delays and uncertainty associated with a new visa application and these in their own may cause hardship to the applicant and her family but the Tribunal considers it beneficial that the applicant’s eligibility for a visa should be assessed on the basis of genuine and truthful information. 

29. The applicant provide to the Tribunal evidence relating to her partner’s mortgage and mortgage repayments. The Tribunal is prepared to accept that the applicant and her partner share their finances and that the applicant may contribute to the payment of mortgage, as well as other expenses. While it is possible (or likely) that the applicant would be able to find employment either in Australia, if she is to seek another visa in Australia, or offshore if she is to return to China, and therefore she may have the funds to help her partner, the Tribunal acknowledges that there is a real likelihood that the applicant’s financial position will be adversely affected as a result of the cancellation of her visa and that the degree of her financial help for her partner may also diminish. The Tribunal is also prepared to accept that the family’s landscaping business may be affected by the cancellation – if it was to result in the applicant departing Australia – as she would not be able to contribute to the running of the business and perform the various functions she performs. The Tribunal also accepts that the cancellation of the visa may affect the family’s capacity to purchase another property.

30. The Tribunal accepts that the cancellation of the visa may cause financial hardship to the applicant and her partner, particularly if the applicant was to leave Australia. The Tribunal accepts that if the applicant is to leave Australia, it may affect her husband’s business. The Tribunal also accepts that if the applicant was to leave Australia, it is likely to delay them having a baby and the Tribunal acknowledges the applicant’s age and her desire to have a child. The Tribunal accepts these matters will contribute to the hardship the applicant and her partner would experience, if the cancelation of the visa was to lead to her departure from Australia. The applicant refers to the daily support she provides to her husband, stating that he is too busy to care for himself and the Tribunal is prepared to accept that the husband’s daily routine may be affected if the applicant was to leave Australia.

31. The applicant refers to the length of time she has spent in Australia and the friendships and relationships she ahs formed. She states that she does not want her husband and her family to be affected. The Tribunal accepts that evidence.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has not complied with ss. 101 and 103 of the Act and that there are grounds for cancelling her visa.

33. The Tribunal considers there are reasons why the visa should not be cancelled. In particular, the Tribunal accepts that considerable hardship would be caused to the applicant and her partner and others by the cancellation of the visa. This is because there is a possibility that the applicant may have to (or may decide to) leave Australia if her visa is cancelled and that may sever or affect some of the significant ties she has formed in Australia, cause her to be separated from her partner, may result in loss of employment and financial hardship and loss of other opportunities. It would also delay the opportunity to have children and, if the applicant is to apply onshore, affect her ability to travel and see family in China. The Tribunal is of the view that some of the hardship would be ameliorated if the applicant is to make an application for another Australian visa, such as a Partner visa, either onshore or offshore, but the Tribunal acknowledges that there are difficulties and hardships associated with that process, particularly in relation to an onshore application, and no certainty of visa grant. Overall, the Tribunal accepts, having regard to the applicant’s circumstances, that considerable hardship would be caused to the applicant and others by the cancellation of the visa for a variety of factors identified by the applicant.

1. The Tribunal acknowledges that the applicant has made a contribution to the community and also her significant involvement in various community and religious activities in Australia. The Tribunal accepts the applicant has been living in Australia for a number of years and has formed strong ties which might be affected by the cancellation. The Tribunal also acknowledges the applicant’s evidence that she wants to be able to travel to China, and visit her elderly grandmother, and accepts that she may be unable to do so if she was to make an application for another visa in Australia and would not get a visa enabling her to travel. This would add to the hardship the applicant and her family would experience as a result of the cancellation. These are all factors that weigh against the cancellation.

2. The Tribunal has decided that the cancellation of the visa would not be in breach of Australia’s international obligations and would not affect the best interests of any children.

3. In the circumstances of this case, the Tribunal has decided to place greater weight on other factors. Primarily, the Tribunal places greatest weight on the fact that the decision to grant the visa was based, in part and to a significant extent, on incorrect information. The Tribunal considers it highly significant that the applicant’s eligibility for the visa was dependent on her being a de facto partner of the primary applicant and that relationship did not exist. That is, the applicant was not eligible for the visa and if the correct information was known, it is unlikely she would have been granted the visa. In the Tribunal’s view, that factor alone outweighs other considerations. The Tribunal also places some weight on the circumstances in which the non-compliance occurred. The Tribunal has formed the view that the applicant was aware of the fraud (that she was included in Mr He’s visa on the basis of a non-existent relationship) and was indifferent to the agent’s actions in perpetrating the fraud. Even if she did not prepare the bogus documents herself and allowed the agent to complete the application form, the Tribunal has formed the view that the applicant was cognisant of the fraud and indifferent to it.

4. The Tribunal acknowledges the hardship that the decision to cancel her visa would cause but considers it relevant that the applicant has an option of seeking another visa that may enable her to return to Australia in the future, even if that process is uncertain, expensive and lengthy. The Tribunal is of the view that there is benefit it the applicant being assessed against the visa criteria on the basis of truthful information and genuine documents.

5. In the circumstances of this case, the Tribunal has decided that the factors that weigh in favour of the cancellation outweigh those that are against the cancellation.

6. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

7. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

   Kira Raif
   Senior Member