Lee (Migration)

[2024] AATA 178

Lee (Migration) [2024] AATA 178 (2 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tat Wing Lee

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2307368

HOME AFFAIRS REFERENCE(S):          BCC2021/922584

MEMBER:R. Skaros

DATE:2 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 02 February 2024 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information and bogus document provided with previous visa application – English language test – forensic examination of photos provided with application and test – photo provided with test matches another identity – discretion to cancel visa – non-compliance admitted – course of action suggested by agent and applicant paid additional fee – knowing participation – no attempt to notify department – length of residence – visa, study and work history – church, social and community activities – supporting statements – consequential cancellation of partner and child’s visas – applicant and partner from different countries – no current right to reside permanently in each other’s country, and political and language difficulties – best interests of child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101(b), 103, 105, 107, 107A, 109(1), 140(2)
Migration Regulation 1994 (Cth), Schedule 2, cl 187.232

CASE
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 (Cth) (the Act).

2. The applicant is a 37-year-old citizen of Hong Kong. He is married to Ms Hsin-He Yang, who is a citizen of Taiwan, and they have a son (Ze-Hong Lee) who is almost three years old. The applicant first travelled to Australia in 2014 as the holder of a working holiday visa. He was granted a further working holiday visa onshore, after which he was granted a Regional Sponsored Migration Scheme (Subclass 187) visa. On 13 April 2021 the applicant was granted a Resident Return (Subclass 155) visa.

3. The delegate cancelled the Subclass 155 visa on the basis that the applicant had not complied with s 101 and s 103 of the Act in relation to the previously held Subclass 187 visa.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 6 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Yang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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. Extracts of the Act relevant to this case are attached to this decision.

10. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

11. In the present matter, 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?

12. 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 in the following respects:

13. On 11 March 2016 the applicant applied for the Subclass 187 visa on the basis of a nomination made by KG & SE Nettleton. The nomination identified the applicant as the nominee for a position in the occupation of Personal Assistant. The nomination was approved on 19 January 2017.

14. On the visa application form it was indicated that the applicant had undertaken an English language test within the last 36 months, details of which were provided. It indicated that the applicant sat the IELTS test on 13 June 2015 in which he achieved ‘Superior’ English. A copy of the IELTS Test Report Form (IELTS TRF), dated 25 June 2015, was provided in support of the application.

15. Based on the above information, as well as meeting other relevant criteria, the applicant was granted the Subclass 187 visa on 30 January 2017.

    Subsequent information received by the Department

16. On 6 May 2020 a departmental officer requested the Forensic Examination unit to conduct a facial image comparison on two images held by the Department for the applicant; the first being the photograph provided with the visa application and the second being the photograph on the IELTS TRF.

17. The examination was undertaken by a Forensic Facial Image Examiner and in a report, dated 3 June 2020, the Examiner concluded that the facial images have been compared and there are indications that they are not the same person.

18. Information before the Department also indicated that the facial image on the IELTS TRF matched another identity on the Department’s system. It was concluded that the facial image on the IELTS TRF did not match the applicant’s identity.

19. In relying on the outcome of the facial image examination, the delegate formed the view that the person who undertook the IELTS test was not the applicant. The delegate considered that the applicant had provided incorrect information in the application for a Subclass 187 visa when he provided details of his claimed English language ability and details of an IELTS test examination purportedly undertaken in the preceding 36 months. The delegate also considered that the applicant had provided a bogus document, being the IELTS TRF, dated 25 June 2015.  

    Response to the s 107 notice

20. In his response to the Department, the applicant readily admitted that he had not undertaken the IELTS test that had been relied upon in his Subclass 187 visa application. In seeking to explain the circumstances, the applicant said that his employer (KG & SE Nettleton), for whom he had been working since the beginning of 2015, offered to sponsor him for a permanent visa. Wanting to take up the offer, the applicant began to prepare the relevant documents for the visa application. While he was able to communicate in English, he had difficulty studying for the English language exam as he was working long hours. He was only able to study when he was not working and, despite his best efforts, he was making limited progress and began to worry that he may not be able to achieve the required English level. The applicant claimed that his then migration agent, whose details are on the visa application form, gave him two options: either to sit the IELTS test himself or they could arrange for someone to take the test on his behalf. The applicant claimed that he lacked the legal knowledge and felt that the latter proposal was feasible and had a higher possibility of success, so he made the wrong decision, which he deeply regrets.

21. At the hearing, the applicant provided further details about the circumstances of the non-compliance, which the Tribunal has had regard to further below.

22. For the purposes of determining whether there has been non-compliance as described in the s 107 notice, the Tribunal has had regard to the forensic facial image examination which found that the person who lodged the visa application (the applicant) and the person who sat the IELTS test on 13 June 2015 were not the same person. The Tribunal has also had regard to the admissions made by the applicant that he did not sit the IELTS test for which the report, dated 25 June 2015, was issued. On the evidence before it, the Tribunal finds that incorrect information about the applicant having undertaken an English language test within the preceding 36 months and having achieved ‘Superior’ English was provided in the visa application form. Accordingly, the applicant has not complied with s 101(b) of the Act.  

23. The Tribunal further finds that the IELTS TRF provided with the visa application is a bogus document, as defined in s 5(1) of the Act, because it reasonably suspects, based on the evidence before it, that it is a document that purports to have been, but was not, issued in respect of the applicant. Accordingly, the applicant has not complied with s 103 of the Act.  

24. For the above reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

25. 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).

26. 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 reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations), which the Tribunal has considered as follows.

    The correct information

27. The correct information is that the applicant did not sit the IELTS test on 13 June 2015 and that he did not achieve a ‘Superior’ level of English as claimed in the Subclass 187 visa application form. The Tribunal considers that if the correct information was known to the Department, the applicant would not have been granted the visa. Accordingly, this consideration weighs in favour of cancellation.

    The content of the genuine document (if any)

28. The relevant document in this case is the IELTS TRF, which contains the results of an English test undertaken on 13 June 2015. The results achieved in that test were not those of the applicant, as he had not undertaken the English language test. The IELTS test results were achieved by an imposter, whose photograph appears on the IELTS TRF.

29. The Tribunal considers that if the Department had known that the scores on the IELTS TRF were achieved by someone other than the applicant, the applicant would not have been granted the Subclass 187 visa. Accordingly, this consideration weighs in favour of cancellation.

    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

30. Subject to specified exemptions, the applicant would have had to demonstrate that he achieved the required level of English language proficiency to be granted the Subclass 187 visa. The applicant did not claim any exemptions and relied on the results of the IELTS test undertaken on 13 June 2015 to demonstrate that he satisfied the requirement in cl 187.232 of Schedule 2 to the Regulations.

31. The Tribunal considers that the decision to grant the applicant the Subclass 187 visa was based, in part, on the incorrect information provided in the application form about him having sat an IELTS test in the preceding 36 months and having achieved a ‘Superior’ level of English, and the corresponding bogus document (IELTS TRF), which purported to demonstrate that it was the applicant who had achieved the required English language proficiency.

32. The Tribunal finds that the decision to grant the applicant the visa was based, partly, on the incorrect information and the bogus document. Accordingly, this consideration weighs in favour of cancellation.

    The circumstances in which the non-compliance occurred

33. The non-compliance occurred when the incorrect information and the bogus document about the applicant’s English language proficiency were provided with the Subclass 187 visa application, which was lodged on 11 March 2016.

34. The applicant admitted to not having sat the IELTS test on 13 June 2015. He gave evidence that the agency that lodged his regional Subclass 187 visa application told him it was taking too long for him to prepare for the IELTS test and that (for an additional fee) they could arrange another person to sit the test on his behalf. And, because he did not want to lose the opportunity to be sponsored by his employer, he agreed to the agency’s proposal. When asked why he did not undertake the test to see if he could achieve the required score before agreeing to another person sitting the test on his behalf, the applicant said that, at the time, he thought it was the best solution. He had been in Australia for two years on working holiday visas, he loved the country, the freedom and really wanted to stay. He was offered a sponsorship by his employer and did not want to miss out on that opportunity.

35. The applicant said he fully trusted the agent, thought it was a legitimate option and so followed their advice. He claimed to not have a full understanding of the law and regulations and said he did not realise the consequences. The Tribunal remarked that he must have surely understood that by paying for someone else to sit the test on his behalf and claiming that he (the applicant) had achieved those results, he was participating in fraudulent and dishonest conduct. The applicant said he now realises that he made the biggest mistake of his life. He said he is very sorry for what he has done, and that at the time he did not comprehend the full gravity of his actions. He said it was the mistake of a lifetime and when he told his wife, which was after he received the cancellation letter, she was in shock and called him a liar and a cheater, and while he wanted to defend his character, he realised it was his mistake and regretted his actions.

36. The Tribunal accepts the applicant’s evidence that his former agent proposed to him the option of arranging another person to sit the English test on his behalf. The applicant provided sufficient detail about his discussions with the agent, including the payment of an additional fee for the ‘service’. However, the Tribunal does not accept that the applicant was so naïve as to believe that paying for someone else to sit the test on his behalf was a ‘legitimate’ (alternative) option for satisfying the English language requirement. The Tribunal formed the view that the applicant was desperate to stay in Australia that he was prepared to do anything to achieve a migration outcome. While this desperation may have clouded the applicant’s judgement, the Tribunal does not accept that the applicant did not comprehend (or could not comprehend) that the arrangement was fraudulent. The Tribunal considers that what the applicant may not have fully comprehended is that the deceptive and fraudulent conduct, in which he knowingly and intentionally participated, may one day be detected and that it could lead to his permanent visa being cancelled. The applicant seems to have only come to grips with this reality after receiving the visa cancellation notice from the Department. 

37. Having regard to the circumstances of the non-compliance, the Tribunal considers that the applicant, with the assistance of his former agent, knowingly participated in fraudulent conduct by accepting the agency’s offer to arrange another person to sit the English language test on his behalf. The fact that the applicant was working long hours and had limited time to study and did not want to lose the opportunity to be sponsored by his employer does not justify (nor excuse) his conduct. The applicant’s conduct seriously undermined the integrity of the employer sponsored migration program which, in the case of the applicant, required him to demonstrate that he had the required level of English language proficiency. The Tribunal considers that the circumstances in which the non-compliance occurred weigh heavily in favour of cancelling the applicant’s visa.

    The present circumstances of the visa holder

38. The applicant first travelled to Australia in December 2014 as the holder of a Working Holiday visa and was granted a further Working Holiday visa onshore. He was subsequently nominated by his employer under the Regional Sponsored Migration program and was granted the Subclass 187 visa in January 2017. He was subsequently granted a Resident Return (Subclass 155) visa, which was cancelled by the Department in May 2023 and is the subject of this review.

39. The applicant completed a Diploma of Leadership and Management from the Australian Institute of Management in November 2015. He also completed a chemical handling course in April 2017, a first aid course in June 2017 and has had a licence to operate a forklift since September 2019.

40. In relation to his employment history, the applicant said he has been working in Australia for 10 years. He initially worked as a cleaner at various factories. The owner of the cleaning company offered to sponsor him as an Assistant, and he worked for them for a few years after the grant of the Subclass 187 visa. He is currently working at a factory in the packaging section, though sometimes assists in the warehouse as directed by his supervisor. The Tribunal has had regard to the letters of support from the applicant’s current and former supervisors in which they describe him as a committed, hardworking employee who has a good relationship with other workers.

41. The applicant is married to Ms Yang. They first met in late 2017 when Ms Yang was in Australia on a Working Holiday visa. The applicant and Ms Yang gave consistent evidence about when they first met and the development of their relationship; they were house mates in Perth for about six months before Ms Yang returned to Taiwan in 2018. The applicant subsequently travelled to Taiwan to visit Ms Yang and a relationship between them developed. They maintained contact with each other by video calls. The applicant returned to Taiwan in 2019 to visit Ms Yang and meet her family. They also spent time together travelling. Ms Yang travelled to Australia in March 2020 to be with the applicant. They married in April 2020 and Ms Yang fell pregnant a few months later. Ms Yang travelled to Taiwan in November 2020, which was during the COVID-19 pandemic. The applicant remained in Australia. Ms Yang gave birth to their son in Taiwan in March 2021. The applicant could not be present at the birth due to the COVID-19 travel restrictions. In 2022, the applicant travelled to Taiwan to bring Ms Yang and their son back to Australia. The applicant sponsored Ms Yang and their son for a Partner (Subclass 820/801) visa. The visas were granted on 19 September 2022; however, they have since been consequentially cancelled under s 140(2) of the Act following cancellation of the applicant’s visa.

42. The applicant, Ms Yang and their son have been living together in Australia as a family since September 2022. The Tribunal has had regard to the various letters of support from friends, neighbours, colleagues and local church leaders. The applicant’s close friends indicate that they are aware of the applicant’s non-compliance and state that he deeply regrets his actions, is remorseful, feels ashamed and that he wants the opportunity to correct his mistake and contribute to society. The applicant’s friends and work colleagues speak highly of the applicant, describing him as a hardworking, trustworthy person who has contributed to the Australian community through his employment and volunteer work. The letters of support indicate that the applicant and Ms Yang are involved with their local Landcare group, where they assist with planting of trees, and with their local church, where they assist with providing morning tea on Sundays. The Tribunal has also had regard to the photographs of the applicant, Ms Yang and their son together in various social settings with friends in Australia. It has also had regard to photographs of the applicant’s son at day care and the letter from his early childhood educator indicating that he has settled in well.

1. The applicant said he has worked hard to establish himself in Australia. He has two properties in Western Australia: a house he purchased in 2017, which is his current place of residence, and an investment property he purchased in 2022. The applicant has a mortgage on both those properties and said if he is unable to remain in Australia, he would likely have to sell the properties.

2. In relation to his and Ms Yang’s extended family, the applicant said that he is an only child; his father passed away when he was at university, and his mother currently resides in mainland China. Ms Yang is also an only child, and her parents reside in Taiwan. The applicant said if his visa is cancelled and they are unable to stay in Australia, Ms Yang would return to Taiwan with their son, and he would have to return to Hong Kong. When asked whether he and Ms Yang had discussed what they would do if they could not remain in Australia, the applicant said it would be too difficult for him to live in Taiwan due to political tensions and that Ms Yang, who is not fluent in Cantonese, would also have difficulty residing in Hong Kong. The Tribunal has discussed this aspect of the applicant’s evidence further below. The applicant said that he, Ms Yang and their son can happily live together in Australia as they have established a strong emotional attachment to the community and have close friends.

3. In her evidence to the Tribunal, Ms Yang said she had no knowledge about the English test and was not involved with the applicant at the time he applied for the visa. She only came to know that there was a problem with their visas recently when the applicant told her. She said she was shocked and devastated; she called him a liar and a cheater because she was so angry and upset. She said he confessed everything to her, told her he made the biggest mistake of his life and asked her for another chance. Ms Yang said she could see that the applicant was remorseful and wanted the opportunity to contribute positively to the Australian community. She said as a family they have been involved in volunteer work and they wanted to be able to continue this contribution and give back to the community.

4. Ms Yang gave evidence that she completed qualifications in social work in Taiwan and worked as a foster care social worker, caring for children who had been abandoned. She said she is committed to social service, currently undertakes some volunteer work with the church and hopes to work as a social worker in Australia and serve the vulnerable.

5. When asked why the family could not live in Taiwan or Hong Kong together, Ms Yang said that it would be very difficult. She said as a family they are accustomed to the Australian lifestyle. She said her son feels a huge difference between the lifestyle in Taiwan and Australia. In Australia, he attends day care, they visit parks, they participate in outdoor activities, including volunteering to plant trees and meeting with members of their local community, which she said has been quite valuable in developing her son’s character. She said in Australia the atmosphere was warm and friendly and they have a good quality of life, whereas in Taiwan it is very fast paced. Ms Yang gave evidence that if they had to leave Australia, the applicant would return to Hong Kong and that she would return to Taiwan with their son. Ms Yang explained the reasons for why they would live in separate countries, which the Tribunal has considered further below.

6. The evidence before the Tribunal indicates that applicant has resided in Australia for 10 years, which the Tribunal accepts is a long time. During that period the applicant completed several courses, which have enabled him to undertake employment in various industries. The Tribunal accepts that the applicant has established strong employment ties to Australia. The applicant has also established strong economic ties through his purchase of (and investment in) property in Western Australia. The Tribunal also accepts that the applicant, Ms Yang and their son have established social and community ties in Australia. They have a close network of friends with whom they regularly socialise, they attend their local Catholic church and participate in local volunteering activities through Landcare and their church.

7. Given the above, the Tribunal considers the present circumstances of the applicant and his family weigh against cancellation of the visa.

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

8. The delegate found that the applicant had not made any effort to notify the Department of the incorrect information or bogus document. Given the above findings regarding the circumstances of the non-compliance, the Tribunal considers that the applicant would have been aware that incorrect information about the English language test and his English language proficiency were provided with the visa application. In the circumstances, the Tribunal considers that the applicant was under an obligation, as required by s 105 of the Act, to notify the Department of the incorrect information. The applicant’s failure to comply with s 105 of the Act weighs in favour of cancellation.

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

9. There is no evidence before the Tribunal which suggests that there are any other instances of non-compliance.

   The time that has elapsed since the non-compliance

10. The non-compliance occurred when the Subclass 187 visa application was lodged, in March 2016, which is almost eight years ago. The Tribunal considers this to be a long time and gives some weight to this consideration against cancellation of the visa.

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

11. There is no information before the Tribunal which indicates that there have been any breaches of the law since the non-compliance.

    Any contribution made by the holder to the community.

12. The Tribunal has before it documentary evidence indicating that the applicant has made modest monetary donations to various charities and organisations. The applicant and his family have also participated in volunteer tree planting with Landcare and undertake volunteer work through their local church.

13. The Tribunal accepts that the applicant and his family have contributed to the Australian community through their donations and volunteer work and gives this consideration some weight against cancellation of the visa.

    Policy considerations

14. While the above 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 Procedures 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

15. Cancellation of the applicant’s visa would result (and has resulted) in the consequential cancellation of Ms Yang and the child’s Subclass 801 visas under s 140(2) of the Act. This consideration weighs against cancellation of the applicant’s visa.

    The best interests of the applicant’s son

16. Departmental policy provides that 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. It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].

17. The child whose interests would be affected by the cancellation is the applicant and Ms Yang’s son, who is almost three years old. If the applicant’s visa is cancelled, then Ms Yang and the child’s Subclass 801 visas will remain cancelled. The applicant and Ms Yang contend that it would be in the best interest of their son that the visa not be cancelled as this would allow them to live together in Australia as a family.

18. The applicant and Ms Yang gave evidence that their son’s quality of life in Australia would be much better than in Taiwan, which is where he would relocate with Ms Yang if he cannot remain in Australia. The applicant and Ms Yang’s evidence is that if they had to leave Australia, Ms Yang would return to live in Taiwan with their son and the applicant would return to Hong Kong.

19. When asked why she could not go and live in Hong Kong with the applicant so that the family unit can remain intact, Ms Yang said that as a Taiwanese citizen she would experience significant difficulties. She said the political environment was not welcoming, there is no freedom of speech, they had vastly different ideologies and there were restrictions on personal freedoms. In his evidence to the Tribunal, the applicant said that he would not be welcomed in Taiwan due to political tensions and the potential war with China. The applicant acknowledged, as remarked by the Tribunal, that he could apply for residency to live and work in Taiwan, but said the social atmosphere was hostile and that his accent is discernible and that it would be difficult for him to integrate.

20. The Tribunal has also had regard to the representative’s submissions, which set out the potential adverse psychological, emotional and social impact of cancellation on the child that may result from having to leave Australia and being separated from his father for extended periods of time. It was submitted that the separation would affect the secure attachment the child has with his father, that it would place significant strain on Ms Yang and that children whose biological parents have been separated, on average, have worse outcomes in terms of social, emotional and cognitive development. The Tribunal has also had regard to the articles referred to by the representative regarding effects of separation on young children.

21. Having regard to the evidence overall, the Tribunal considers that cancellation of the applicant’s visa would not be in the best interest of the child. The Tribunal accepts that the family is well settled in Australia, have a good social network, and participate in outdoor community and volunteer activities, which have been beneficial for the child’s development. For the reasons they have explained, the applicant and Ms Yang have decided that, if the visa is cancelled, they would return to their respective countries of citizenship and that their son would live with Ms Yang in Taiwan. The Tribunal considers that cancellation of the applicant’s visa would, at least for the foreseeable future, result in the separation of the child from his father. The Tribunal accepts that separation of a child from their parent can have adverse emotional, psychological and developmental impacts on their wellbeing. Having regard to the circumstances of this case, the Tribunal considers that the child’s interests would be best served if the applicant’s visa is not cancelled. Accordingly, this consideration weighs against cancellation of the visa.

    Australia’s international obligations

22. Departmental policy requires consideration of whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

23. The evidence before the Tribunal does not suggest (and the applicant has not claimed) that cancellation of the visa would result in removal of the applicant from Australia in breach of its international non-refoulement obligations.

24. As for family unity, the Tribunal notes that if the applicant’s visa is cancelled and he decides to live in Hong Kong and Ms Yang decides to return to Taiwan, then the family will be separated. The Tribunal considers, however, that this is a decision for them and that they could decide, if they so wished, notwithstanding the difficulties they may each experience, to live together as a family either in Hong Kong or Taiwan. While the Tribunal accepts that neither the applicant nor Ms Yang currently have the right to reside permanently in each other’s country of citizenship, the evidence before the Tribunal, which was discussed with the applicant, indicates that they can each apply for residency based on their spousal relationship. The applicant and Ms Yang acknowledged they could do this, but had their reasons, as detailed above, for why they did not wish to do so at this time. In the circumstances, the Tribunal does not consider that cancellation of the applicant’s visa would result in the forced separation of the family unit in breach of Australia’s family unity obligations. Accordingly, the Tribunal gives this consideration limited weight against cancellation.

    The mandatory legal consequences of cancellation  

25. Departmental policy requires consideration of 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.

26. The Tribunal considers that the applicant will only become an unlawful non-citizen and liable for detention and removal if he does not depart Australia within the validity of any bridging visa he currently holds or if he is not granted another visa to remain in Australia. If the visa is cancelled, the applicant will be affected by s 48 of the Act, which limits the types of visas he can apply for onshore. The applicant may also be subject to an exclusion period. The Tribunal considers the mandatory legal consequences of cancellation are those intended by the legislation and gives this consideration limited weight against cancellation.

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

27. In considering the degree of hardship that may be caused to the applicant and his family, the Tribunal accepts that cancellation of the applicant’s visa is likely to cause financial, emotional and psychological hardship to the applicant, Ms Yang and their child. Accordingly, this consideration weights against cancellation.

    Overall consideration

28. The Tribunal has carefully considered all the evidence before it and weighed up the relevant factors. The Tribunal considers significant that the applicant was granted a visa that was partly based on incorrect information and a bogus document. This seriously undermined the integrity of Australia’s migration program and resulted in the applicant being granted a permanent residence visa to which he would not have been entitled. The applicant’s complicity in the fraudulent conduct weighs strongly in favour of cancelling the visa. Balanced against this, however, is the primary consideration of the best interests of the applicant’s son, which the Tribunal has found would be best served by the visa not being cancelled. The circumstances of this case are such that cancellation would lead to the child being separated, at least for the foreseeable future, from his father. This is a significant and adverse consequence for the child. Also of note are the present circumstances of the applicant, including the length of time he has resided in Australia, his employment and economic ties, and his marriage to Ms Yang. The Tribunal also considers significant that cancellation of the applicant’s visas would result in the consequential cancellation of the visas held by Ms Yang and their son, who were not involved in (nor had knowledge of) the applicant’s wrongful conduct. In the circumstances, the consequences of cancellation on Ms Yang and the child would, in the Tribunal’s view, be exceptionally harsh.

29. The Tribunal does not condone the applicant’s conduct and considers the non-compliance to be very serious. Nevertheless, having regard to all the relevant circumstances, and particularly the primary consideration of the best interests of the child, the Tribunal considers that the preferable decision in this matter is not to cancel the visa.

    Conclusion

30. 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 not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    R. Skaros
    Senior Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.