Li (Migration)

[2018] AATA 5265

Li (Migration) [2018] AATA 5265 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haochen Li

CASE NUMBER:  1804012

DIBP REFERENCE(S):  BCC2017/431655

MEMBER:Kira Raif

DATE:15 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 15 October 2018 at 12:30pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) visa – Subclass 189 – applicant deliberately provided incorrect information concerning the IELTS test results – bogus document – English proficiency requirement not met– applicant committed other serious breaches of the law – best interests of the Australian child – Decision under review affirmed

LEGISLATION
Family Violence Protection Act 2008
Migration Act 1958, ss 101, 102, 103, 104, 105, 107, 109,
Migration Regulations 1994, Schedule 8, cls 189.213, 189.214,

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
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 Immigration to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in December 1988. He was granted a Class SI Skilled visa in July 2014. In January 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 and s.103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in February 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s neighbour. The applicant invited the Tribunal to take evidence from his GP but she was not available at the time of the hearing. 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 his 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 and also that the delegate had reached the necessary state of mind to engage s.107. 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?

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 s.101 and s.103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

   a.The applicant made the application for the Skilled Independent visa on 27 May 2014. He was required to show English language proficiency for the purpose of the English language qualification requirement and for the purpose of the points test.

   b.The applicant provided with his application the IELTS test report form with the following details:

   Centre Number   SG017
   Date   15/02/14
   Candidate number                    003086

   Candidate details
   Family name  Li
   First Name  Haochen
   Candidate ID  G56507816
   Date of Birth  2/12/88
   Sex   M
   Scheme Code   Private Candidate
   Country of Nationality                China
   First language   Chinese

   Test Results
   Listening   8.5
   Reading   9
   Writing   7
   Speaking  8
   Overall Band score                   8
   Writing examiner number         995027
   Speaking examiner number      998459
   Date  27/2/14
   Test Report Form Number       13SG003086LIH017G

   c.The applicant provided the following information on the application form:

   i.In response to the question whether he had undertaken an English test in the last 36 months the applicant stated ‘yes’.

   ii.The applicant gave the details of the language test by referring to the IELTS test undertaken on 15 February 2014. The applicant gave the test reference number as 13SG003086LIH017G.

   iii.The applicant stated that his English ability was ‘proficient’.

   iv.The applicant stated ‘yes’ on the declaration confirming that he had read and understood the information provided to him in the application. The applicant stated ‘yes’ in the declaration confirming that he provided complete and correct information in every detail on the form and any attachments.

   d.The applicant was granted the Skilled visa on 22 July 2014.

   e.On 2 December 2016 the Department was informed by IDP Education Ltd that the applicant’s IELTS test had been cancelled as the visa holder had not sat the IELTS test but an imposter sat the test for him.

10. In his written response to the NOICC the applicant concedes that he provided incorrect answers on the form concerning the IELTS test results and also that he provided a bogus IELTS test report form. The applicant states that he did not have proficient English at the time and would not have been granted the visa. In his written submission to the Tribunal of 1 October 2018 the applicant also concedes to breaching the Act. He admitted the same information in his oral evidence to the Tribunal.

11. Having regard to the applicant’s evidence and the information from the IELTS provider IDP Education Ltd, as set out in the primary decision record, the Tribunal finds that the applicant did not sit the IELTS test on 15 February 2014. The Tribunal finds that the answers the applicant gave on his application form concerning having proficient English and also the language test he claimed to have undertaken on 15 February 2014 were incorrect. The Tribunal further finds that an answer the applicant gave in the declaration by stating that he provided complete and correct information was incorrect. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s.101 of the Act.

12. The Tribunal further finds that the IELTS test report form which the applicant included with his application was a bogus document because it purports to have been, but was not, issued in respect of the applicant. The Tribunal finds that the applicant has given, to an officer or the Minister, a bogus document or caused such a document to be given. The Tribunal finds that the applicant did not comply with s.103 of the Act.

13. 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?

14. 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).

15. 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 as follows.

    The correct information

16. The correct information is that the applicant did not complete the IELTS test and did not achieve the scores on which he relied in his visa application. The correct information is that there was no evidence that the applicant had the requisite English proficiency to meet the visa requirements. The applicant told the Tribunal that he had completed an IELTS test for the Student visa but never for the Skilled visa. The applicant told the Tribunal that he had practised the IELTS test a lot but could not guarantee that he would get a good result. The applicant said he had tried to do the IELTS test since but he has been banned from doing the test.

    The content of the genuine document (if any)

17. The content of the genuine document is that the applicant did not undertake the IELTS test to which the test report form number relates.

    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

18. It is a requirement for the grant of the Subclass 189 visa contained in cl.189.213 that an applicant has competent English and English proficiency is demonstrated through undertaking a language test. The primary decision record indicates that the applicant also relied on having proficient English to claim points for the points test in cl.189.214. It appears that if the applicant was unable to demonstrate competent English or proficient English, the applicant may not have met the requirements of these provisions.

19. The applicant’s evidence to the Tribunal is that he has only done a language test for the purpose of a Student visa and not for the purpose of the Skilled visa.

20. In his submission to the Tribunal of 1 October 2018 the applicant states that although he acquired 10 points for his English proficiency, there were other criteria which were not dependent on his English, which he met. The applicant repeated these claims in his oral evidence to the Tribunal, stating that despite not having English, he still has the Australian qualifications and can still make a contribution to Australia.

21. The Tribunal accepts that the applicant met other criteria for visa grant but that does not detract from the fact that he was also required to show English proficiency to meet the visa grant requirements. To be granted the visa, the applicant was required to meet all visa requirements and not only some of the requirements. The applicant relied on his English results to obtain the visa and the information about the English results was incorrect. The applicant’s evidence is that he has not done the IELTS test since he was granted the Student visa and could not demonstrate the required English proficiency.

22. The Tribunal finds that the decision to grant the visa was based, at least partly, on incorrect information and a bogus document.

    The circumstances in which the non-compliance occurred

23. The applicant states in his written submissions that he did not have the required proficiency in English and for that reason, relied on the incorrect information and a bogus document.

24. In oral evidence to the Tribunal the applicant said that he graduated from RMIT in 2014. He met a girl in 2015 and they discussed his future, including obtaining the IELTS results. This girl told him that she could arrange for someone who looked similar to him to sit the test for him. He has not been able to contact that girl since. The agency used to find people who looked similar and sent people overseas to sit the test. The applicant said that he was young and immature and this was the most stupid thing he has done. The applicant claims that he has felt regretful ever since. The Tribunal is mindful that despite the claimed regret, the applicant has done nothing about his actions before he was issued with the NOICC. For example, the applicant has not made any contact with the Department to inform of the breach. He explained to the Tribunal that he was afraid his visa would be cancelled and he wanted to keep it secret. That is, the applicant was content to rely on the incorrect answers and a bogus document as long as his visa was preserved and his expression of regret appears to be dependent on his ability to keep the visa.

25. The applicant told the Tribunal that once he graduated, his family expected him to become independent and stopped supporting him. He had to support himself financially and he was running out of money and out of time and he lost confidence. However, the applicant told the Tribunal that he paid RMB60,000 (around AUD10,000) to arrange for someone to sit the test for him. Sitting the test would have cost the applicant around AUD300 by comparison. The Tribunal acknowledges that the applicant may have been required to pay additional tuition fees for test preparation but it appears that he had the funds available to him. The Tribunal is also mindful that the applicant had not done the language test since arriving in Australia. He may well have passed the test without any further study or tuition, given the length of his residence in Australia. The Tribunal does not accept the applicant’s claim that he arranged for someone else to sit the IELTS test because he was running of money. The Tribunal is of the view that the applicant made these arrangements for the sole reason of obtaining better results and guaranteeing the visa grant.

26. The Tribunal finds that the applicant had deliberately falsified the information about his English proficiency in order to obtain the visa. He did so in the full knowledge of the falsity of his claim.

27. The applicant also concedes that he signed the form in which he stated that all the information on it was correct. The applicant told the Tribunal that he only signed the papers which were prepared by the agent. That may have been the case but as the visa applicant, it was his responsibility to ensure the content of the application was correct and accurate.

    The present circumstances of the visa holder

28. The applicant provided information about his present circumstances in response to the NOICC and additional evidence is before the Tribunal.

29. The applicant refers to completing his education in Australia and he presented evidence of various course completions in Australia. The Tribunal accepts that the applicant completed several courses in Australia. In his submission to the Tribunal the applicant refers to working and paying taxes and contributing to Australian society. The applicant has not presented his taxation records but the Tribunal is prepared to accept his evidence.

30. The applicant told the Tribunal that his entire family is affected by the decision he has made and he feels remorseful. He refers to the breakdown of his marriage and states that he cannot face his family and the possibility of having to leave the country. The Tribunal accepts that the cancellation of the visa has affected the applicant and will also affect those around him.

31. The applicant refers to having purchased a property in Australia and evidence of the property purchase and mortgage repayments is before the Tribunal. In his submission to the Tribunal the applicant states that this house was sold and they now rent a place close to their child’s kindergarten. The applicant refers to being a person of good character, as attested to by his employer, neighbour, GP and others. The Tribunal acknowledges that evidence.

32. The applicant states that without the permanent visa, he cannot keep a job. He worked in a large company but he lost his job because his visa was cancelled. His evidence to the Tribunal is that he is now an Uber driver. He also lost his car. The Tribunal accepts that if the visa is cancelled, the applicant is unable to maintain a job in Australia and remain in Australia.

33. In written evidence the applicant refers to his marriage and his two year old son, who is an Australian citizen. The applicant refers to his parental responsibilities in relation to the child. The applicant told the Tribunal that his relationship ended but he claims that despite the separation, he maintains a good relationship with his partner and they contact each other frequently and he has a close relationship with his son. The Tribunal accepts that the applicant is well settled in Australia.

34. The applicant told the Tribunal that he sees the psychologist weekly. Although it appears that the arrangement is due to the court order, to the extent that the applicant needs medical help, there is no evidence to indicate that the applicant would be unable to access relevant health services in China.

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

35. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

36. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

37. The application for the visa was made in May 2014. Close to four and a half years passed since the non-compliance. In his written submission to the Tribunal the applicant refers to the length of his residence in Australia, stating that it would be ‘cruel’ to assess his time in Australia based on the shorter period given that he has adapted to life in Australia. The applicant requested the Tribunal to take a flexible approach in assessing his stay in Australia. The Tribunal is mindful, however, that this particular consideration refers to the time that has elapsed since the non-compliance and not the time of the applicant’s residence in Australia. The non-compliance in this case occurred when the applicant made his application for the Skilled visa.

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

38. The applicant told the Tribunal that he had a verbal argument with his wife in late 2017 and he was charged with an offence for which he had attended a court hearing. The applicant told the Tribunal that he pleaded guilty and he was given a Diversion plan. He was fined and required to see a psychologist. The applicant ultimately stated that he was charged with assault and pleaded guilty. He said a Diversion plan is only available for first time offenders and only in relation to offences that are at the lower scale. The applicant states that his offence was not significant and it was simply a verbal argument. His wife did not intend for the police to intervene. Following the hearing the applicant provided to the Tribunal copies of relevant court documents, confirming that the applicant has been given a Diversion plan and an Intervention order under the Magistrates’ Court Family Violence Protection Act 2008, which remains in place until December 2018.

39. The applicant has provided a number of character references with his response to the NOICC and to the Tribunal and the Tribunal took oral evidence from the applicant’s neighbour who refers to him being a good person and to have a good relationship with his son. The Tribunal accepts that those who provided references believe the applicant to be of good character.

    Any contribution made by the holder to the community

1. The applicant states that he has lived in Australia since the age of 17 and has adapted to the Australian community and calls Australia home. The applicant refers to his employment and the payment of taxes. The Tribunal accepts that evidence.  The applicant states that caring for his Australian citizen child is a contribution to the community.

2. The applicant told the Tribunal that he tried to be involved in the community and helps neighbours and his son’s classmates and parents. The applicant states that he is always helping people, has a good driving record, does not drink or smoke. The applicant provided a number of character references. The Tribunal acknowledges that evidence.

3. 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 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 are mandatory legal consequences

4. If the applicant resides in Australia and if the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. His partner may also become an unlawful non-citizen if her visa remains cancelled. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may lose certain entitlements he had as an Australian citizen. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

   Whether there would be consequential cancellations under s.140

5. The applicant’s spouse held a Partner visa in Subclass 801. That visa has been cancelled under s.140 and is the subject of a separate review. The primary decision record indicates that the applicant’s spouse has been living in Australia since June 2014 and was granted permanent residence in November 2017. The couple’s child is an Australian citizen.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

6. The applicant states that if his visa is cancelled, he and his wife would have to return to China. The Tribunal is mindful that the cancellation of the wife’s visa is a separate matter before the Tribunal which will be considered in due course. The outcome of the present application need not necessarily lead to the same outcome for the partner.

7. The applicant states that since he moved to Australia a long time ago, his personnel file was lost ‘years ago’ and without it, it would be difficult to find employment and access social benefits. No probative evidence is presented to support that contention. There is nothing before the Tribunal to satisfy the Tribunal that the applicant requires a personnel file to access employment and various services, that his personnel file has been lost or cannot be restored if the applicant were to re-apply for it. The applicant concedes in oral evidence that it may be possible to restore his personnel file but he claims it may be difficult to do that as he would need to gather evidence. That may be the case but the Tribunal does not accept it would cause undue hardship to the applicant to gather whatever evidence may be required. On the limited evidence before it, the Tribunal does not accept the applicant’s claims and does not accept that the applicant will not have the personnel file and that he will be denied employment or other services in China. The Tribunal does not accept that these matters give rise to protection obligations.

8. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents any claims of harm being canvassed in a protection visa application.

9. The Tribunal finds that in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.

10. The applicant has a child born in Australia who is an Australian citizen. The applicant provided to the delegate evidence of his child’s Australian citizenship and the child’s birth certificate and evidence of the child’s attendance at kindergarten. The applicant states that the child is too young to live on his own and would move to China with his parents. As a foreigner, he would not have the same rights as Chinese citizens. The applicant claims that this child will not have a national ID and will not be entitled to social benefits, health care, etc. No evidence is presented as to what rights the child might have as a ‘foreigner’ and what rights he would be denied and the Tribunal is not required to accept the applicant’s claims.

11. The applicant states that the child has never been to China and was raised in Australia, and speaks English and because there is no international school in his parents’ hometown, he would have to stay at home and not interact with his world. The Tribunal does not accept that evidence. Firstly, the Tribunal is not satisfied that the child cannot communicate in the language of his parents or that he only communicates in English with his parents and other extended family. Secondly, and importantly, the Tribunal is of the view that at the age of 2, the child will have no difficulty acquiring a second language in a very short period of time. The Tribunal does not accept the applicant’s claim that the child will be forced to stay at home and not interact with anyone because of his language skills. The Tribunal does not accept that the child will be denied education in China because of his language skills or for any other reason.

12. The applicant also refers to poisonous milk and fake vaccinations and air quality in China. In the Tribunal’s view, these issues can be effectively addressed by the child’s parents, as they are addressed by millions of parents in China daily. The Tribunal does not accept that the child will face a risk to his health if he were to live in China.  

13. The Tribunal accepts that if the child lives in China, he may lose his English skills and cultural understanding of Australia, however, given the child’s age, the Tribunal does not consider this to be adverse to the child. The child is an Australian citizen and may choose to return to Australia at any time. He may do so as an adult.

14. The applicant provided to the Tribunal evidence of his involvement with the child’s upbringing, including a statement from his former spouse confirming that they share responsibility for the child’s upbringing and the applicant maintains an active role as the father and has a close relationship with the child. The Tribunal accepts that evidence.

15. The Tribunal is of the view that given the child’s age and close involvement with both parents, his best interests require him to remain with his parents. The Tribunal does not accept that such interests necessarily require residence in Australia. In particular, the Tribunal does not accept the applicant’s claim that the child’s health will be adversely affected by residence in China, nor that the child will be denied access to basic rights, health care, education, etc. The Tribunal finds that the child’s best interests will be met through the child’s residence with his parents, irrespective of the country of residence. This includes China. The Tribunal finds that the best interests of the child do not require his residence in Australia, if his parents were to return to China.

16. In oral evidence to the Tribunal the applicant states that his wife and child intend to remain in Australia and not travel to China. As the wife’s visa has been cancelled, at present, she does not have a visa to remain in Australia and it is unclear on what basis the applicant believes she can remain in Australia. It is possible that the cancellation of the wife’s visa may be set aside and that the child will have the opportunity to live in Australia with his mother and be separated from his father but at present, that is nothing more than a hypothetical. At the time of this decision, the child’s mother does not have a visa to remain in Australia permanently.  

17. The applicant told the Tribunal that his relationship with his ex-wife was good and was not affected by their argument and the assault charge because he never tried to hurt her. The applicant said they sorted these things out and had a good holiday during Christmas. The applicant said that his wife left him because she was upset about him lying to the Department of Immigration about his visa and not for any other reason. The Tribunal finds these claims unconvincing. There is no evidence that the applicant’s wife continues to support the applicant or that she believes the relationship to be good. The applicant’s former spouse was not available to give evidence to the Tribunal. (The applicant stated that the child was unwell and his wife had to take care of the child but no request for adjournment was made to enable the applicant’s partner to give evidence and no indication that she was unable to give evidence by phone.)

18. The applicant’s former spouse provided a statement to the Tribunal following a hearing, stating that the separation occurred as a result of family violence. This contradicts the applicant’s evidence that the family violence played no part in the break-down of the relationship, which occurred due to him being untruthful in the visa application. Nevertheless, the Tribunal accepts that despite the separation, the applicant continues to play a role in the child’s upbringing.

19. The applicant presented to the Tribunal some photographs with the child and his evidence, as well as the evidence of the former neighbour and other statements, is that he has regular contact with the child and also provides financial support to the child. The Tribunal accepts that there is a relationship between the applicant and his son. The Tribunal accept that if the applicant was to leave the country and if the child was to remain in Australia with his mother, the child would be separated from his father and his best interests may be to be with both parents.

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

20. The applicant refers to the length of his residence in Australia and his settlement in Australia. The Tribunal acknowledges that the applicant has lived in Australia for over ten years, although the Tribunal is mindful that he was not a holder of a permanent visa until he was granted the Skilled visa in 2014. Nevertheless, the Tribunal accepts that the applicant is settled in Australia.

21. The applicant told the Tribunal that he has not been in China for many years and China has become ‘foreign’ to him. His friends no longer know him and it would be difficult for him to re-settle. It would be hard for him to find a job in China, particularly as his education was completed in Australia. The Tribunal accepts that the applicant has been living in Australia for many years, however, the Tribunal does not accept that the applicant would not be able to re-settle in China. Neither does the Tribunal accept that the applicant would be unable, or would find it difficult to find a job, as the applicant told the Tribunal he has not made any job applications and has not been refused any jobs. The Tribunal accepts that there would be many job-seekers competing for jobs but there is no probative evidence that someone with the applicant’s skills, experience and language skills would be denied a job.

22. The applicant provided to the Tribunal copies of a joint account showing family payments. The Tribunal is prepared to accept that the applicant provides some financial support to his former partner or his child. However, as the Tribunal has formed the view that the applicant would be able to find gainful employment in his home country, the Tribunal does not accept that such support could not be provided if the applicant’s visa is cancelled and if the applicant was required to leave Australia.

23. The applicant states that it would be difficult for him to face his relatives and friends who thought he had settled in Australia. The Tribunal accepts that this may be the case, although the Tribunal is not satisfied the applicant’s interactions with friends and relatives would cause him undue hardship. The Tribunal also notes that the applicant held a permanent visa for a little over four years, even though he has lived in Australia for more than ten years. Before the grant of the permanent visa, there could be no expectation either by the applicant or any of his friends or relatives, that the applicant could be permitted to remain in Australia permanently.

24. The applicant described the difficulties that his child would face if he was to relocate to China. These are addressed above. The applicant said he wants to have a second chance. The Tribunal acknowledges that evidence.

25. The applicant provided to the Tribunal a number of character references and evidence of his participation in the behaviour change program. The Tribunal acknowledges that evidence.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect answers in relation to his English proficiency and gave a bogus document with his application for the visa. The Tribunal has found that there are grounds for cancelling his visa.

27. The Tribunal accepts that the applicant has been living in Australia for 12 years and is settled in Australia and considers Australia his home. There are no other known instances of non-compliance. The applicant has been employed and previously owned a house and contributed to the community through the payment of taxes and caring for his Australian citizen son. He has formed friendships and participated in community activities. The Tribunal accepts that hardship may be caused to the applicant and his family if the visa is cancelled and if the applicant was to relocate to China. The Tribunal accepts that the applicant would have to re-establish himself in his home country, that there may be considerable administrative processes that the applicant would need to pursue to renew the various papers needed for employment and access to services. The Tribunal accepts that the applicant may feel embarrassed in front of family and friends and that he would have to renew his social connections. The Tribunal accepts that the applicant does not have local qualifications and experience and it may affect his employment and income, although the Tribunal does not accept that the applicant would be unable to find a job in China. The Tribunal accepts there would be considerable difficulties associated with the applicant returning to China.

28. The Tribunal has found that Australia’s protection obligations would not be engaged as a result of the cancellation. In relation to the best interests of the child, the Tribunal has determined that such interests are for the child to be with his parents, irrespective of the country of residence, and if both parents were to move to China, these interests would be met by the child relocating with the parents. However, if the mother is to remain in Australia while the applicant returns to China, the Tribunal acknowledges that separation from his father may not be in the best interests of the child.

29. The Tribunal accepts that there are other significant consequences to the applicant’s visa being cancelled, including the cancellation of his partner’s visa and also for his future migration applications. The Tribunal accepts that there are strong reasons why the visa should not be cancelled.

30. Against these considerations, the Tribunal considers the circumstances in which the non-compliance occurred to be significant. The applicant had taken considerable steps to obtain a bogus document and had done so with the deliberate intention of misleading the Department and obtaining the visa. He knew that he did not have proficiency in English because he has not sat the language test and he had taken positive steps to mislead the Department in order to obtain the visa for which he knew he was not entitled. Although the applicant claims he has been living in Australia for many years and was used to the Australian culture, that did not prevent the applicant from taking steps to falsify his migration application.

31. The Tribunal also places weight on the other breach of the law, as the applicant told the Tribunal he had been charged with assault and he has been issued an Intervention Order in relation to family violence. Both the Diversion Plan and the Intervention Order continue at present. Despite the applicant’s evidence that there was nothing serious and no harm to his partner, the Tribunal considers family violence to be a serious offence.

32. While there are reasons to exercise the discretion in favour of the applicant, the Tribunal has formed the view that the nature of the breach, the circumstances in which the breach occurred which involved the applicant taking active steps to falsify information and the fact that the applicant would not have been entitled to the Skilled visa if he was unable to demonstrate the English proficiency, outweigh other considerations.

33. 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

34. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

    Kira Raif
    Senior Member