Li (Migration)

Li (Migration) [2023] AATA 1167 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Xue Li
REPRESENTATIVE:  Mr Romano Piva
CASE NUMBER:  2112715
HOME AFFAIRS REFERENCE(S):          BCC2021/892822
MEMBER:R. Skaros
DATE:4 May 2023
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 04 May 2023 at 11:51am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – bogus documents – genuine and ongoing de facto relationship – altered bank and utility accounts – allegations against a migration agent – frequent residential movements – impact on the applicant’s businesses – best interest of the Australian citizen daughter – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 56, 97-105, 107-109, 140, 359
Migration Regulations 1994, r 2.41
CASES
Gill v MIBP [2016] FCAFC 142
Maharjan v MIBP [2017] FCAFC 213
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The delegate cancelled the applicant’s visa on the basis that there was non-compliance with s 103 of the Act in relation to a previously held Skilled Independent (Subclass 189) visa. The applicant was included in the Subclass 189 visa as a member of the family unit (de facto partner) of the primary visa applicant, Mr Jiaming Guo.
The applicant provided a copy of the delegate’s decision record to the Tribunal with the application for review. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Mr Kevin Yin. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The applicant’s representative attended the hearing. The applicant was also assisted by Mr Andrew Munro of counsel.
The Tribunal has been provided with a copy of the Department’s file, which includes a non-disclosure certificate issued under s 375A of the Act. The certificate provides that disclosure of the specified document would be contrary to public interest because it would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods. A copy of the non-disclosure certificate was provided to the applicant prior to the scheduled hearing.
The Tribunal has considered the nature of the document covered by the certificate. The document details methods used by the Department’s Forensic Documents Examiner to detect irregularities and/or alteration of documents that were provided with the visa application. The document also contains the outcome of those investigations. While some of the information contained in the subject document has been disclosed to the applicant by the Department, there was other information which was relevant to issues in the review which had not been disclosed. Accordingly, prior to the hearing, on 11 November 2022, the Tribunal wrote to the applicant pursuant to s 359A of the Act and invited her to comment on particulars of the information which the Tribunal considered, subject to her comments or response, would be the reason or part of the reason for affirming the decision under review. The written response was due on 25 November 2022, which was after the scheduled hearing. The information was also the subject of discussion at the hearing.
In considering the validity of the s 375A certificate, which was signed by a delegate of the Minister and issued on 7 November 2022, the Tribunal is satisfied that it provides a valid public interest reason for non-disclosure. Counsel for the applicant sought release of the document on the basis that the Tribunal had already disclosed the information contained in the document. The Tribunal acknowledged that information pertaining to irregularities/alterations of some of the examined documents had been disclosed to the applicant but noted the method by which the Forensic Documents Examiner had identified those irregularities had not been so disclosed. The Tribunal is satisfied that the certificate is valid and, as such, considers itself under obligation not to release the subject document. The competing obligation that arises in this case is that in ss 359A/359AA to disclose information to the applicant that may be the reason or part of the reason for affirming the decision under review. In complying with this obligation, information was disclosed to the applicant, in as far as it was relevant to the issues in the review, of particulars of the adverse information which may be relied upon, subject to the applicant’s comments or response, to affirm the decision under review. The Tribunal is satisfied that the relevant information contained in the subject document has been accordingly disclosed to the applicant and that the applicant has had an opportunity to respond to the information.
During the hearing, the applicant also made claims regarding her relationship with Mr Guo, including claims of harm, family violence and mental health issues. The Tribunal noted the limited evidence before it to substantiate those claims, which were raised for the first time at the hearing, but nevertheless gave the applicant until 25 November 2022, to provide any further evidence she wished to rely upon to support her claims. After the hearing, the Tribunal received a request for the grant of an extension of time to provide submissions and supporting documents. The extension of time was granted until 6 December 2022. On 5 December 2022, the representative informed the Tribunal that they had not received any further supporting material from the applicant on which they could present further submissions.
During the review, the Tribunal obtained a copy of the Subclass 189 visa application which relevantly included the documents identified by the Department as being bogus, as well as other documents provided as evidence of Mr Guo and the applicant’s claimed de facto relationship, including relationship statements (titled ‘love story’), joint travel and accommodation bookings, tenancy agreement, landlord statement and personal particulars (form 80) containing the applicant’s residential history. At the hearing, the Tribunal discussed with the applicant the documents from the Subclass 189 visa file which it considered relevant to the review, including her claim to have been in a de facto relationship with Mr Guo. Copies of those documents were also sent to the applicant after the hearing. The Tribunal also obtained a copy, by summons, of the Department’s file relating to the cancellation of Mr Guo’s Subclass 189 visa.
The Tribunal considered parts of the applicant’s oral evidence to be inconsistent with evidence on the Subclass 189 visa application file and Mr Guo’s visa cancellation file. The particulars, the relevance of the information and consequences of relying on the information were put to the applicant for comment using the procedure in s 359AA. Upon her request, the applicant was granted additional time to consider her responses, and the Tribunal has had regard to those responses in its considerations.
The Tribunal has carefully considered all the evidence before it and, for the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 107A of the Act provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.
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.
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?
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 103 of the Act. The Tribunal notes that the s 107 notice was set out in full in the delegate’s Decision Record and states the following.
On 24 March 2016, Mr Guo lodged an application for a Skilled – Independent (Subclass 189) visa and included the applicant as his de facto partner.
On 2 April 2016, Mr Guo was requested by the Department to provide additional information, which included evidence of his claimed de facto relationship with the applicant.
On 23 May 2016, Mr Guo provided, in part, the following documents:
·Commonwealth Bank Statement, for the period 1 October 2014 to 31 March 2015 for a bank account in the applicant’s name and account number ending #5441. The address on this document is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.
·Sixteen (16) Vodafone mobile phone bills for a mobile phone account in the applicant’s name, and account number ending #2242, for the period from November 2014 to March 2016. The address on these documents is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.
·Eleven (11) ANZ Bank Statements, for the period 30 June 2014 to 29 April 2016 for a bank account in the applicant’s name and account number ending #5381. The address on these documents is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.
·Fourteen (14) Vodafone mobile phone bills for a mobile phone account in the applicant’s name, and account number ending #4301, for the period from December 2014 to April 2016. The address on these documents is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.
Based on the above information, and meeting other relevant secondary criteria, the applicant was granted the Subclass 189 visa on 14 July 2016 as the de facto partner of Mr Guo.
Subsequent information received by the Department
On 26 July 2018 the Department undertook a forensic examination of the statements issued by the Commonwealth Bank and ANZ Bank and the tax invoices issued by Vodafone which were provided with the visa application and found that the residential addresses shown on the documents did not match the residential addresses officially linked and registered to those documents.
Based on the subsequent information received, the delegate considered the documents to be ‘bogus documents’ as they were counterfeit or had been altered by a person without the authority to do so, as defined by s 5(1)(b) of the Act.
Response to the s 107 notice
On 4 August 2021, in response to the s 107 notice, the Department received submissions from the applicant’s representative, together with the following supporting documents:
·     Unsigned statutory declaration by the applicant.
·     Statutory declaration by Mr Yin, the applicant’s friend, in which he says he was present at a meeting between the agent (Chen Geng) and the applicant, during which the agent said to her ‘leave everything to me’.
·     Copy of a council rate notice in the applicant’s name as evidence of ownership of a residential property in Merrylands.
·     Copy of a contract for sale and purchase of a property in Merrylands by the applicant in September 2018.
·     Copy of the applicant’s NSW contractor licence as a Painter.
·     Copy of the applicant’s marriage certificate indicating her marriage to Mr Cheng Wang on 11 October 2020.
·     Copy of an Australian citizenship certificate issued to the applicant’s daughter, Grace Wang, born on 9 August 2020.
·     Copy of the Subclass 189 visa grant notice to the applicant.
In her statutory declaration, which the representative explained was not witnessed due to COVID-19 restrictions in place at the time, the applicant said she had never seen the altered documents which are alleged to have been provided by her ex-boyfriend, Mr Guo, showing the Granville address. She said the Granville address was her ex-boyfriend’s address and she lived there with him at the time she was included on the visa application as his de facto partner. She said they were in a de facto relationship at that time. The applicant said they applied for the visa using the services of an agent who called himself Chen Geng, and that they were provided with a copy of the agent’s passport which contained his photographs and other details. She said they were introduced to Mr Chen by word of mouth and, because they were not familiar with which visa to apply for, they used Chen as their migration agent. The applicant said she attended Chen’s office in Liverpool St, Sydney, with her friend Mr Yin. She said her ex-boyfriend (Mr Guo) was unable to attend as he had work. She said the agent told her he would look after the case and prepare everything for them and told her the fees would be $30,000. She paid a deposit of $500 for which she received a receipt. A few days later (on 11 November 2015) she returned to his office and paid $29,500 in cash. She recalls he asked for her bank account number to keep for his records. He also asked for her birth certificate and police clearance. The applicant said she asked the agent whether she or her ex-boyfriend needed to do anything else, and the agent told her they didn’t and to go home and wait for the good news. Four months later the agent called to inform her that she had been granted the visa.
The applicant said she was never told about the request for information under s 56 which was apparently sent to her ex-boyfriend. She was never informed by her ex-boyfriend or Chen that the Department had requested further information. She never authorised Chen to make up the bogus documents that were provided in response to the s 56 request. She has not seen the documents provided in support of the visa application; she assumes the birth certificate and police clearance were provided but does not know exactly what was submitted on her behalf. She trusted the agent and did not need to second guess what he was doing, and because she was granted the visa, she did not have any reason to request a copy of what was submitted for her and Mr Guo. She said in April 2017 her relationship with Mr Guo deteriorated to the point where they separated.
Prior to the hearing, the applicant provided a copy of invoices/receipts for payments of $500 and $29,500 respectively. The receipts appear to be issued by Global Sky Co & Media in relation to a Subclass 186 visa application. The Tribunal also received copies of the original ANZ Bank statements in the applicant’s business name for the account ending #5381 indicating the address as a PO Box in Auburn, NSW.
Counsel for the applicant submitted that there had been a fraud on the applicant and on the delegate, and that submissions would be made for the Tribunal to follow the authorities in Gill[1] and Maharjan.[2] The Tribunal noted that Gill and Maharjan and similar authorities related to visa applications which were refused for failure to satisfy public interest criterion (PIC) 4020, which requires that there is no evidence that a bogus document or information that is false or misleading has been given in relation to a visa application, and provides authority on the assessment of whether such visa applications are invalidated because of third party fraud. In responding to the Tribunal’s query about the relevance of these cases, counsel submitted that if the visa application was affected by fraud, it would be invalid, and the applicant would have the option of applying for a new visa.
[1] Gill v MIBP [2016] FCAFC 142.
[2] Maharjan v MIBP [2017] FCAFC 213.
The Tribunal considered counsel’s submission but does not consider these authorities to be applicable in the context of visas cancelled under s 109 of the Act, at least not for the purpose of assessing the validity of the original visa application. In this case, the applicant had already been granted the Subclass 189 visa and was subsequently granted the Subclass 155 visa, the cancellation of which is the subject of this review. Unlike review of visa refusal matters, when conducting a review of a decision to cancel a visa, there is no provision in the legislation for the Tribunal to substitute the cancellation decision with a decision that the original visa application was invalid.
The Tribunal has, however, had regard to the claim of agent fraud when considering the various circumstances prescribed by reg 2.41, as discussed further below, and when determining whether there has been non-compliance with s 103 of the Act as described in the s 107 notice.
Hearing evidence
The applicant gave evidence that she applied for the Subclass 189 visa with the assistance of an agent. Initially she indicated that the Subclass 189 visa was an employer sponsored visa. She then said she was not sure what type of visa it was. She said the agent told her he can lodge an employer sponsored visa for her and her ex-boyfriend. She said her ex-boyfriend had engineering qualifications, but she did not know the employer who sponsored him for the visa. She gave evidence that her ex-boyfriend (Mr Guo) attended the agent’s office but could not recall how many times. When asked if she and Mr Guo ever attended the agent’s office together, she said they had.
The applicant gave evidence that she met Mr Guo when she first arrived in Australia. She said Mr Guo was living in Hurstville at the time. When asked if she and Mr Guo ever lived together, she said ‘yes’. When asked to provide details, she said she cannot recall the exact date, but they moved in together in April 2014. She said they were living in Hurstville but could not recall the address. When asked how long she had lived with Mr Guo at the Hurstville address, she said six months. The applicant then said they moved twice in Hurstville. When seeking clarification of her evidence, the applicant said that, within six months, they lived at two different addresses in Hurstville after which they moved to Granville. She could not recall the address in Granville, but said they lived there for about three to six months and then moved to another address in the same suburb. When asked if she could recall any of the addresses, she said William Street, Granville. She said they moved into another address on the same street.
The applicant indicated that she did not sign a lease agreement for the property in Granville. The Tribunal showed the applicant a photocopy of a bio-page of a passport for Mr Yong Liu and asked her if she knows Mr Liu. The applicant said she recognised him as her ex-boyfriend’s friend. She did not know if Mr Liu had ever lived at the Granville address.

The Tribunal informed the applicant that Mr Guo had applied for the Skilled Independent visa, in which she was included, and not for an employer sponsored visa as she had understood. The Tribunal noted that Mr Guo had included her in his visa application as his de facto partner and discussed with her the information contained in the s 107 notice, and the pre-hearing s 359A letter, that documents had been provided to the Department as evidence of her and Mr Guo’s de facto relationship, including bank statements and mobile phone bills, in her and Mr Guo’s name, dated from June 2014 to April 2016, indicating that they had resided together at the William St Granville address during that period. The Tribunal noted that forensic examination of the documents found that the genuine addresses linked to those documents were at Auburn and Campsie (in relation to documents in her name) and Hurstville (in relation to documents in Mr Guo’s name). The Tribunal further observed that one of the documents she provided to the Tribunal (the contract of purchase of property) showed the same residential address at Campsie, which suggests that she had been residing at the address in Campsie and not Granville as claimed in the application. The Tribunal further explained that the information, including the Tribunal’s observations and concerns, were relevant to whether bogus documents had been provided with the visa application and to her claim to have been in a genuine de facto relationship with Mr Guo.
In responding to the Tribunal’s concerns, the applicant said she never received any notification from the Department that she needed to provide supporting documents and her agent did not inform her that she needed to provide any documents. She said they moved frequently, so the address on her driver’s licence was the address when she first came to Australia. She said it was her younger brother’s address and she used to live there with him. She said the addresses on the documents did not represent her actual residential address. She said they rented different places and moved frequently because of work. The Tribunal is prepared to accept that the applicant used the Campsie address for receipt of her mail and may not have in fact resided there. However, her evidence regarding her actual residential addresses and when she moved, as considered in detail further below, did not support her claim to have been in a de facto relationship (and to have resided) with Mr Guo.
In relation to the type of visa applied for, the applicant said her ex-boyfriend told her he wanted to get a sponsorship and because she does not speak English, she let him deal with the application. The Tribunal observed that the agent, whom she had engaged to act on her behalf, spoke Chinese, and indicated that it was difficult to accept that this was the reason she did not know what type of visa had been lodged. She said the first time she spoke with the agent the plan was to apply for a sponsored visa, but that later changed, and she was not involved much in the communication between her ex-boyfriend and the agent and so did not really know.
In relation to the alteration of addresses on the documents, the applicant said she moved frequently and did not update the address. Her brother lived in Campsie and was receiving her mail and letters. She said in 2014 she got a PO Box in Auburn, where her mail was delivered. After further explanation of the concerns, the applicant said she did not authorise anyone to alter any information in the documents. The Tribunal noted that she had engaged the agent to act on her behalf in relation to a visa application and had paid $30,000 for their services, and that in the circumstances it considered any information or documents provided by the agent to be information or documents that were given or caused to be given by her.
In determining whether the applicant had given, or caused to be given, a bogus document to the Department, the Tribunal has first considered whether the documents identified in the s 107 notice are bogus. The original ANZ Bank statements, which the applicant gave the Tribunal, indicate PO Box addresses in Auburn NSW, whereas the ANZ Bank statements for the same account that were provided with the Subclass 189 visa application showed the address in Granville. Forensic examination of the ANZ Bank statements also concluded that the addresses on those statements had been altered. Other documents provided, including those listed in the s 107 notice, were also found to have been altered to show the Granville address. The Tribunal gives significant weight to the conclusions of the forensic examination and finds, on the basis of that evidence, that documents provided with the Subclass 189 visa application had been altered. Further, given the nature of the documents and the purpose for which they were provided, the Tribunal also suspects that the alterations were made by a person who did not have the authority to do so. A bogus document, as defined in s 5(1) of the Act, includes a document that the Minister reasonably suspects is a document that is counterfeit or has been altered by a person who does not have authority to do so. Accordingly, the Tribunal finds that bogus documents have been provided to the Department.
The Tribunal has considered the applicant’s claims that she had no knowledge of documents being requested by the Department or what was provided in response to that request. It also considered her claims that did not alter the documents or authorise anyone to alter the documents. The Tribunal accepts that the applicant did not personally alter the documents and is also prepared to accept that she did not expressly instruct anyone to alter documents. However, it is not necessary to establish that the applicant was responsible for the alteration of the documents, or that she had any knowledge of it, when considering whether there had been non-compliance with s 103.
Section 103 requires that a non-citizen must not give, present, produce or provide to an officer, an authorised system or the Minister or a tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be so given, presented, produced or provided. On her own evidence, the applicant engaged the services of an agent to lodge a permanent residence visa application on her behalf. She was aware that she was being included in the visa application of Mr Guo, whom she referred to as her ex-boyfriend, but was under the impression that the application was for an employer sponsored visa. The evidence before the Tribunal indicates that the applicant relied entirely on the agent, without question or concern, to prepare and lodge the visa application on her behalf. Her evidence was that the agent told her he would look after the case and prepare everything for a fee of $30,000. She paid the agreed amount in two instalments, provided him with documents, did not check what was submitted in the application and did not ‘second guess’ what he was doing. The evidence indicates that the applicant trusted her agent implicitly to take care of the application and secure her a permanent residence visa.
On the evidence before it, the Tribunal is satisfied that the applicant had authorised the agent to act on her behalf, had paid a fee for the agent’s services and had relied entirely on the agent to take care of the application without checking or verifying what was being lodged on her behalf. In the circumstances, the Tribunal considers that the applicant has provided, or caused to be provided, to an officer, authorised system or the Minister a bogus document. For these reasons, the Tribunal finds that there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 Regulations and have been considered by the Tribunal as follows:
The correct information
The non-compliance in this case relates to the provision of bogus documents. The s 107 notice did not particularise information that was said to be incorrect. Accordingly, the Tribunal gives neutral weight to this factor in its considerations.
The content of the genuine document (if any)
The documents in issue (as listed above) are bank statements and Vodafone bills for the applicant, which were purportedly addressed to her at the William St, Granville address. Forensic examination of these documents found that the addresses officially linked to those documents were different. The genuine addresses associated with the documents, as disclosed to the applicant in the s 359A letter, were PO Boxes in Auburn and Evaline St Campsie.
The Tribunal has found that the documents in issue, which were provided with the Subclass 189 visa application, were intentionally altered by a person without authority to do so. The Tribunal considers that the addresses on the documents were altered for the purpose of demonstrating that the applicant and Mr Guo, who was the primary applicant for the Subclass 189 visa, had been living together in Granville since 2014.
The Tribunal considers intentional unauthorised alterations made to the content of genuine documents to be significant and gives weight to this consideration in favour of cancelling the applicant’s visa.
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
The Tribunal put to the applicant that the delegate, when considering whether to grant her the Skilled (Independent) Subclass 189 visa as a member of Mr Guo’s family unit (de facto partner), would have considered, among other documents, the bank statements and mobile phone bills, the addresses of which had been altered, to show that she and Mr Guo had been residing together. In response, the applicant said they lived together, she did not tell the agent to prepare the bogus documents and believes this was done without her consent.
The Tribunal accepts that the applicant did not alter, or instruct the agent to alter, the addresses on the documents, which the Tribunal has found to be bogus. However, for reasons discussed above, the Tribunal considers that by engaging the agent to act on her behalf, the applicant had caused the bogus documents to be given.
In this case, the applicant was included in Mr Guo’s Skilled (Independent) Subclass 189 visa application as his de facto partner. To satisfy the definition of de facto partner, as provided for s 5CB of the Act, the applicant would have had to demonstrate among other things that, she and Mr Guo lived together or did not live separately and apart on a permanent basis: s 5CB(2)(c). In support of the claim that the applicant and Mr Guo were in a de facto relationship, documents were provided to the Department as evidence of their cohabitation. Those documents, as set out in the s 107 notice, included bank statements and phone bills dated from 2014 to 2016, which purported to show that the applicant had been living at William St, Granville with Mr Guo.
The Tribunal is satisfied that the decision to grant the applicant the Subclass 189 visa (as a member of Mr Guo’s family unit) was based, in part, on the bogus documents which indicated that the applicant and Mr Guo had been residing together at the same address at William St, Granville.
The Tribunal considers it significant that the decision to grant the applicant a permanent residence visa was based, in part, on bogus documents and gives weight to this consideration in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the bogus documents were provided in support of the Subclass 189 visa application. The Tribunal has considered the applicant’s claim that she was not aware and had not consented to the documents being altered, and to her claim that she and Mr Guo were living together. As noted above, the Tribunal accepts that the applicant was not aware that the documents had been altered, however, she had authorised an agent to act on her behalf and, in the circumstances, as discussed above, had caused the bogus documents to be given.
In relation to the applicant’s claim that she and Mr Guo had been living together, the Tribunal is not satisfied that they were. The Tribunal notes that other documents provided with the Subclass 189 visa application, which were in Mr Guo’s name and showed the address at William St Granville, were also found to have been altered. Forensic examination of those documents found that the genuine addresses were Rosebank Cr, Hurstville and Carrington Ave, Hurstville. When considering the genuine addresses associated with the documents provided in support of the relationship, they appear to suggest that the applicant and Mr Guo were not residing together at the William St, Granville address as claimed.
When the above was discussed with the applicant at the hearing, she said the Campsie address was where she received her mail, but she and Mr Guo lived in Hurstville (at two different addresses) after which they moved to Granville. The Tribunal put to the applicant that her evidence appears inconsistent with information in her statutory declaration, which was provided to the Department in response to the s 107 notice, in which she said that the Granville address was her ex-boyfriend’s address and that she lived there with him at the time she was included in his visa application as his de facto partner. The Tribunal noted that this was further inconsistent with information provided with the Subclass 189 visa application that it was she who had been living at the Granville address since April 2014 and that it was Mr Guo who had later moved in with her at that address sometime in September 2014. The Tribunal expressed to the applicant its concern that documents provided with the visa application may have been altered for the purpose of securing her a permanent visa, and that the Tribunal has doubts about whether she had ever lived with Mr Guo. The applicant said she has as a witness, a friend, who saw them at William Street. The Tribunal notes that the applicant was given additional time after the hearing to provide further evidence regarding her claims, however, nothing further was received relating to the applicant’s claimed residence with Mr Guo at William Street, Granville.
When asked if she and Mr Guo had ever travelled together, she said they went out to the beach and the pool. When asked if they ever travelled interstate together, including by plane, she said yes. When asked where they travelled, she said it was a long time ago and she cannot recall. The Tribunal expressed its concern that she cannot provide details of her claimed travel with Mr Guo. The applicant said after the breakup she deleted all the photos and messages about him, and she had to go to a psychologist. The Tribunal expressed its doubt about the applicant’s claim to have travelled interstate with Mr Guo given her inability to recall where they had travelled. The applicant maintained they had travelled together. When asked where, she said many places, including places where they travelled by plane. When asked if she could at least recall the name of the airline or the location they travelled to, the applicant did not respond. The Tribunal again expressed its concern about the applicant’s claim to have travelled, to which the applicant said it was a long time ago, he hurt her, and she was not willing to remember those details.
Using the procedure in s 359AA, the Tribunal put to the applicant the following information. It informed the applicant that in a copy of Mr Guo’s Subclass 189 visa application, in which she was included, and noted that in addition to the documents for which the addresses had been altered, other documents were also provided in support of their claimed relationship. It noted that statements purporting to be from her and Mr Guo, titled ‘love story’, were provided stating that in June 2014 she moved into the Granville address and that in September 2014 Mr Guo moved in with her at that address. The Tribunal noted that this was inconsistent with the evidence she provided in response to the s 107 notice that the Granville address was her ex-boyfriend’s and that she had moved to live there with him. It was also inconsistent with her evidence to the Tribunal that she and Mr Guo had lived together at two different addresses in Hurstville and two different addresses in Granville. The Tribunal noted that a tenancy agreement for the William St, Granville address, was also provided with the Subclass 189 visa application, which indicated that she and Mr Guo had entered into a tenancy agreement in April 2015 with Mr Yong Liu (as landlord), whose passport bio-page it had shown her earlier, whom she said was a friend of Mr Guo. It noted that this was also inconsistent with information on her form 80 indicating she resided at the Granville address since June 2014. The Tribunal explained that the inconsistencies in the evidence regarding the residential addresses cast doubt over her claims to have resided with Mr Guo.
In addition to the above, the Tribunal further explained that information was provided with the Subclass 189 visa application suggesting that she and Mr Guo had travelled together to various interstate locations, including to Adelaide in 2014, the Gold Coast in 2015, and to Cairns in 2016. The Tribunal noted that when asked about any interstate travel that she and Mr Guo had undertaken she was unable to provide any details, which may lead the Tribunal to conclude that she and Mr Guo had never travelled together as claimed. The Tribunal explained to the applicant that the information it had discussed with her was relevant to the Tribunal’s considerations in reg 2.41, as the Tribunal may find that information (documents) provided with the visa application in support of her claimed relationship with Mr Guo had been contrived for the purpose of securing her a migration outcome. The Tribunal further noted that it may conclude that she had engaged an agent, to whom she paid a significant fee, to secure her a permanent residence visa without much concern about genuineness or otherwise of what was included in that visa application. The Tribunal explained that, subject to her comments or response, if it concluded that relationship evidence had been contrived for the purpose of securing her a visa, it may give weight to these circumstances in favour of cancelling the visa. The applicant confirmed she understood the concerns put to her by the Tribunal and sought additional time to provide a response. The Tribunal agreed to give the applicant a break, of up to 30 minutes, to consider the information.
The hearing resumed after a short break. In her response to the above concerns, the applicant said her ex-boyfriend caused her mental harm which lasted until she gave birth to her child. She had to see a psychologist three times. She said Mr Guo was passive aggressive towards her; he played with a knife and threatened her that if they break up, he will do something. She said she still has those types of dreams and recollections of him holding a knife in his hands. She suffers from constant headaches. She said the ‘love story’ about their relationship was prepared by the agent, it was not by either of them, so the timing in that document was not accurate. She said she can confirm that when she saw the agent she was living in Granville. The applicant said she now recalls she travelled with Mr Guo to those places, but she recalls they drove there instead of flying.

The Tribunal explained to the applicant that her evidence again appears inconsistent, because the evidence provided in support of their joint interstate travel includes travel airline tickets and accommodation bookings. She said she has never taken any flights with her ex-boyfriend. The Tribunal reiterated its concern that the travel documents appear to have been contrived.
The applicant said they moved frequently and regularly and that is why they did not change the addresses. She said she kept the address on her documents the same as her driver’s licence address and she did not alter any address. She said she never signed any tenancy agreement. The Tribunal expressed to the applicant its concern about her credibility generally. It noted there were internal inconsistencies in her evidence, as well as inconsistencies with documents provided in support of the visa application. It expressed its concern that the applicant may not have provided truthful evidence about her claim to have been in a de facto relationship with Mr Guo. In response, the applicant said she affirms that the relationship is true and genuine and that she has told the truth. The Tribunal acknowledges that the applicant has consistently stated that her documents had the same address (at Campsie) as her driver’s licence and has accepted that this may not have been the address at which she in fact resided. It also accepts that the applicant did not alter or authorise the alteration of the documents or sign a tenancy agreement, however, the Tribunal considers that the applicant’s evidence about where she resided was inconsistent.
The Tribunal raised the concern with the applicant that she may have heard about an agent who could have secured a permanent residence visa for her; she attended the agent’s office with her friend Mr Yin, agreed to pay the agent a large sum of $30,000, and provided some documents to the agent. It raised the concern that she appears to have had little concern about the type of application, or what was included in the application, and was prepared to let the agent do whatever necessary to secure her a migration outcome. The Tribunal also raised the concern that Mr Guo may have derived some financial benefit from including her in his skilled visa application.
In responding to the Tribunal’s concerns, the applicant said the relationship was true and at the time her ex-boyfriend wanted her to stay in Australia. She said he promised her a future and that was why they applied for the visa. She said her original plan was to return to China after finishing her studies. She and her ex-boyfriend did not know how to lodge the application themselves; they were also too busy at work and that was why they went to the agent who helped them apply for the visa. When asked who found out about the agent, she said they both went together (the first time) to see the agent. When asked why she had paid the $30,000 fee for the application if it was Mr Guo that wanted her to get a visa and stay in Australia, she said on the day of the payment Mr Guo was too busy because he had a meeting. The Tribunal sought to clarify the applicant’s evidence regarding attendance at the agent’s office and the payments made. The applicant said the first time she went to the agent’s office she went with her ex-boyfriend to make enquiries. She did not pay any money on that occasion. She said the second time they paid $500. On the second occasion, she went with Mr Yin because her ex-boyfriend was busy at a meeting.
When queried further about the first meeting, which she claimed to have attended with Mr Guo, she said they discussed with the agent how to apply for permanent residence because her ex-boyfriend wanted her to stay, and they asked if they were eligible and what they needed to do to get permanent residence. When asked if the agent informed her and Mr Guo about the cost of the application, she said the agent told her and her ex-boyfriend that it would be $30,000. She said the second time she went with Mr Yin. She said the agent showed her and Mr Yin the cases for which he had successfully secured permanent residence and so she trusted the agent and paid the deposit. She said they did not trust him in the beginning and wanted to know more about other successful cases. She confirmed that she returned to the agent’s office and paid a further $29,500. When asked who the money belonged to, the applicant said it was her and Mr Guo’s money.
The Tribunal put to the applicant that it had information before it, from Mr Guo’s cancellation file, which appears inconsistent with evidence she had given to the Tribunal regarding the circumstances of the visa application. Using the procedure in s 359AA, the Tribunal particularised the following information to the applicant. It noted that in response to the cancellation notice issued to Mr Guo regarding the Subclass 189 visa application, the Department was informed that Mr Guo, in March 2015, had authorised his former migration agent (Alice) whom he met at the Sydney Institute of Interpreting. Alice, who claimed to be a migration agent, advised Mr Guo how he could prepare certain documents to show evidence of the de facto relationship. Mr Guo provided the documents to Alice, who advised him they were sufficient to show they were in a de facto relationship. He said Alice may have modified some of the documents given to her.
The Tribunal explained to the applicant that the above information was relevant because it appears to be different to the account that she had provided in her oral evidence about the circumstances of the visa application. It noted that in her oral evidence she indicated that she and Mr Guo had engaged the services of an agent named Chen Geng, whose office they attended together, and that she had later attended the agent’s office (with her friend Mr Yin) to pay the fees for lodgement of the visa application on her and her ex-boyfriend’s behalf. The Tribunal explained that the different accounts suggest that she and Mr Guo had used different agents to assist them with their visa applications and casts doubt over her claim to have been in a relationship with Mr Guo and raised the concern that the visa application, in which she was included as a de facto partner, may have been arranged by several agents for the purpose of securing her a permanent visa, and possibly Mr Guo may have received some financial benefit for including her in his visa application. The Tribunal explained that the information was relevant to the consideration of the circumstances in reg 2.41, including the circumstances in which the non-compliance occurred, as the Tribunal may conclude that she was not in a relationship with Mr Guo and that she may have been included in his visa application for the purpose of securing a migration outcome. The Tribunal explained that, subject to her comments or response, if it so concluded it may give weight to this factor in favour of cancelling her visa. The applicant indicated that she understood the information discussed with her and requested additional time to consider her response.
Following a short break, the applicant gave evidence that she does not know who Alice is and has never met her. She said she now recalls that when she visited the agent, on all three occasions, she went with Mr Yin instead of her ex-boyfriend because she recalls her ex-boyfriend was busy all the time. She said she misses her child and is nervous and that was why she cannot recall certain facts.
The Tribunal took evidence from the applicant’s friend, Mr Yin. He confirmed that he was present when the applicant met the agent and recalls the agent said, ‘leave everything to me’. He said the meeting only lasted about 10 to 20 minutes. He was unsure about what type of visa they applied for, but recalls it had something to do with a spouse visa which the agent was going to apply for on their behalf. He said the agent told her about the successful cases and how many clients he had helped get a visa. When asked why the applicant would take him instead of her ex-boyfriend to meet the agent, he said because the ex-boyfriend was working. Mr Yin gave evidence that he attended the agent’s office with the applicant about two or three times but cannot recall details of the conversation. Mr Yin said he may have met Mr Guo on one occasion. When asked for details, he said he met him randomly around Auburn train station. He said he was driving and saw the applicant walking with her ex-boyfriend. He did not stop to talk to them. He said he and the applicant have frequent phone conversations but did not catch up in person on weekends.
When asked if she wanted to comment on Mr Yin’s evidence, the applicant said she and her ex-boyfriend were busy at work, as was Mr Yin. They had to work on Sundays, so they did not have an opportunity to catch up together.
The Tribunal has carefully considered the evidence relevant to the circumstances in which the non-compliance occurred and finds that the applicant has not provided credible evidence regarding those circumstances. When concerns were raised about inconsistencies in the evidence, the applicant sought to explain them by saying that Mr Guo had caused her mental harm, that he played with a knife and threatened her, that he was passive aggressive and that she had to go and see a psychologist. The Tribunal notes that there is limited independent reliable evidence before it to substantiate the claim that the applicant and Mr Guo were living together or had a de facto relationship, or that she was the subject of any family or domestic violence at the hands of Mr Guo. The applicant has not provided any supporting evidence of having seen a psychologist and the Tribunal is not satisfied that even if the applicant had seen a psychologist that it was because of Mr Guo’s conduct.
The applicant’s claimed travel with Mr Guo was inconsistent and lacking in detail. She also changed her evidence about having visited the agent with Mr Guo on the first occasion after the Tribunal put to her other evidence which suggested Mr Guo was dealing with a different agent in relation to the visa application. In responding to the Tribunal’s concerns, the applicant provided several explanations, including that she suffers from headaches, that she misses her child and that she was nervous. The Tribunal is not satisfied that any of these reasons adequately explain the significant concerns the Tribunal has with the applicant’s evidence.
Mr Yin’s evidence was also of limited assistance. While he reiterated what was in his statement, namely that the agent had told the applicant to leave everything up to him, he provided very limited substantive evidence about Mr Guo and the applicant’s relationship. In seeking to explain why her good friend Mr Yin had not personally met Mr Guo, the applicant claimed that everyone was too busy working. The Tribunal acknowledges Mr Yin’s willingness to give oral evidence that he saw (from a distance) the applicant with Mr Guo, whom he believed to be her ex-boyfriend, at Auburn train station. While Mr Yin’s evidence suggests that the applicant and Mr Guo may have known each other, and had met in person, the Tribunal is not satisfied that Mr Yin’s evidence, when considered with all the other evidence before the Tribunal, supports the applicant’s claim that she and Mr Guo were in a de facto relationship.
The inconsistencies in the evidence regarding the applicant and Mr Guo’s claimed living arrangements, joint travel and dealings with the agent indicate that the applicant and Mr Guo were not in a de facto relationship with each other. The Tribunal is not satisfied that they had lived or travelled together, and they appear to have had dealings with different agents at the time of the visa application. The Tribunal does not accept, as claimed by the applicant, that Mr Guo included her in his visa application because he wanted her to stay in Australia and have a future. The Tribunal considers that documents were intentionally altered, and relationship evidence had been contrived, for the purpose of securing a migration outcome for the applicant.
Having carefully considered all the evidence before it, as discussed above, the Tribunal is not satisfied that the applicant and Mr Guo were in a de facto relationship as claimed in the visa application. The Tribunal gives significant weight to the circumstances in which the non-compliance occurred in favour of cancelling the visa.
The present circumstances of the visa holder
The applicant gave evidence that she travelled to Australia in April 2013 as the holder of a student visa. She studied language course for six months after which she enrolled in a human resources course at a college in Burwood. She only completed the language course. She had a brother in Australia, but he has since returned to China.
The applicant is married to Mr Wang. Mr Wang has applied for a spouse visa, which has since been refused because the applicant’s permanent residence visa (the subject of this review) was cancelled by the Department. The applicant and Mr Wang have a daughter together.
When asked about Mr Wang’s immigration history, the applicant said he travelled to Australia as the holder of a student visa. At the time he applied for the spouse visa he was not the holder of any visa. She was unsure of how long Mr Wang had been unlawful (without a visa) in Australia but said that he had been living here for about 10 years.
The applicant’s and Mr Wang’s daughter was born whilst the applicant was the holder of the Subclass 189 visa and is an Australian citizen on that basis.
In relation to her employment, the applicant gave evidence that she is the owner/manager of a construction business. The business was registered in 2014 and they have two or three other companies that have stable contracts. She gave evidence that the businesses have always been profitable, and they have paid tax every year. She said the company has three employees, all of whom are paying taxes.
The applicant said her ex-boyfriend caused her harm, so her memory is not good, and she worries about her daughter. The Tribunal noted that as the applicant and Mr Wang are citizens of China, her daughter would be eligible to acquire Chinese citizenship. The applicant said her daughter was born in Australia and is being educated in Australia. The Tribunal noted that her daughter was quite young (two years of age) so would be able to commence schooling in China if she returned there. The applicant said she wants her daughter to stay in Australia and be raised the Australian way.
The Tribunal put to the applicant that she had raised, for the very first time, unsubstantiated claims of domestic/family violence at the hands of Mr Guo. The Tribunal raised the concern that given the late claim, and other concerns raised with her regarding the claimed relationship, and concerns regarding her credibility, that the Tribunal may not accept that she was in a relationship with Mr Guo or had experienced the harm claimed. The applicant said she has a witness to show that she was in a de facto relationship with Mr Guo and that they lived together. The Tribunal informed the applicant that she could provide any evidence to support her claims and it would consider that evidence, together with all the other evidence before it. As noted above, the Tribunal did not receive any further information to substantiate the applicant’s claims of domestic or family violence or any other evidence relevant to the applicant’s claimed mental health issues or ability to recall information. As the Tribunal has not accepted that the applicant was in a relationship with Mr Guo, it does not accept that she has experienced harm at the hands of Mr Guo or that she suffers from mental health issues because of Mr Guo.
The Tribunal does, however, accept that the applicant’s present circumstances indicate that she has strong personal, social, financial, and economic ties to Australia. The Tribunal accepts that the applicant and Mr Wang, given the length of time they have lived in Australia, have established themselves in Australia, where they operate a profitable business. The Tribunal also acknowledges that the applicant has purchased a property in Australia. The Tribunal accepts that the applicant would like her daughter, who is an Australian citizen, to be raised in Australia. The Tribunal gives weight to the present circumstances of the applicant against cancelling 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
The delegate considered that the applicant had not made any effort to notify the Department of the incorrect information provided in the visa application. The Tribunal notes, however, that the s 107 notice relates to the provision of bogus documents (s 103) and does not provide particulars in respect of any non-compliance with s 101 (provision of incorrect information). The Tribunal gives neutral weight to this circumstance.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate noted that there was no information before them to indicate any other instances of non-compliance by the applicant. As the delegate has not identified any other instances of non-compliance, the Tribunal gives neutral weight to this circumstance.
The time that has elapsed since the non-compliance
The non-compliance occurred when the bogus documents were provided to the Department in support of the Subclass 189 visa application. According to information in the s 107 notice, the bogus documents were provided in May 2016. Therefore, almost seven years have passed since the non-compliance. The Tribunal considers this to be a long period of time and gives some weight to this circumstance against cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal which suggests that the applicant has breached any laws since the non-compliance. The Tribunal gives this factor neutral weight.
Any contribution made by the holder to the community
The applicant gave evidence that she contributes to the community through operating her construction company. She said she also helps people from her hometown in China, including assisting them find a place to live, with daily life in Australia, opening a bank account, getting an ID, and doing grocery shopping.
The Tribunal accepts that the applicant has contributed to the community through her company, which she had earlier indicated operates a profitable business and employs three people who pay taxes. The Tribunal also accepts that the applicant is a helpful person who assists others, including new arrivals to Australia. The Tribunal gives some weight to this consideration against cancelling the visa.
Other considerations
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 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
The applicant was granted the visa on the basis of satisfying the secondary criteria as a member of the family unit of Mr Guo. The cancellation of the applicant’s visa, as a secondary applicant, would not by operation of law (under s 140 of the Act) result in the cancellation of the visa of any other person. The Tribunal accordingly gives neutral weight to this consideration.
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 parents were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28]

If the applicant’s visa is cancelled, she may not be able to remain in Australia. She would also not be able to sponsor her spouse, Mr Wang, for a partner visa. The applicant and Mr Wang have a child together who is an Australian citizen. If the applicant’s visa is cancelled and she has to return to China, it is likely that her daughter, who is an Australian citizen, will have to return to China with her. When this was discussed with the applicant at the hearing, she said she wants her daughter to remain in Australia and study the Australian culture.
The Tribunal accepts that the child’s interests would be affected by the cancellation in that she may not be able to remain in Australia and learn the Australian culture. The Tribunal accepts, based on the applicant’s evidence, that it would be in the best interest of the child that the visa is not cancelled and gives weight to this consideration against cancelling the visa.
Whether the cancellation would lead to the person’s removal in breach of Australia's non-refoulement or family unity obligations
There is no evidence before the Tribunal, and the applicant has not claimed, that Australia’s non-refoulment obligations would be breached if the applicant’s visa is cancelled.
In relation to family unity, the Tribunal does not consider that cancellation would lead to the applicant’s removal in breach of family unity obligations as all members of the applicant’s family unit, including her spouse and their child, would be able to return to China, meaning the family unit will remain intact. For these reasons the Tribunal gives limited weight to this consideration against cancelling the visa.
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
The applicant will only become an unlawful non-citizen and liable for detention and removal if she does not depart Australia voluntarily within the validity period of any bridging visa she currently holds or if she is not granted another visa to remain in Australia. The Tribunal acknowledges that if the visa is cancelled the applicant will be subject to s 48 of the Act, which (without the Minister’s intervention) limits the types of visas she can apply for onshore. The applicant would also not be able to provide the required sponsorship to support Mr Wang’s application for the partner visa. She may also be subject to an exclusion period in relation to any future visa applications.
The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation and gives this consideration limited weight against cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
When asked about the hardship that may be experienced if her visa is cancelled, the applicant said she has been living in Australia for 10 years, during which she got married, gave birth to her child, and purchased a property. The applicant said she does not have a place to stay in China and it will be hard for her to readjust to life there.
When asked about her family in China, the applicant said her father passed away and her mother remarried. Her husband’s parents are in China but are getting old. Her brother got married and has children.
The Tribunal observed that the applicant has some family in China who can support her. The applicant said her brother moved to his wife’s area which is far away from her (the applicant’s) hometown. She said when her father passed away, she did not return to China, and this caused resentment among her family members. In relation to her husband’s family, she said they were not on great terms so she cannot go back to his side of family in China.

100. The Tribunal accepts that the applicant and her family members have established themselves in Australia, where they set up a business and purchased a property. The Tribunal accepts that the applicant and her family members are likely to experience emotional and financial hardship if her visa is cancelled and she has to return to China. It accepts that returning to China will present some difficulties for the applicant and she may have limited support from family and friends. The Tribunal acknowledges these difficulties, but also notes that China is the applicant’s (and her spouse’s) home country. She speaks the language, is familiar with the culture and China is where she was educated and spent most of her life. While returning to China will be a difficult adjustment, the Tribunal considers that the applicant, who has been able to establish a profitable business and purchase property in Australia, will be able to apply the same level of determination and hard work to re-establish herself in China.
101. The Tribunal has also considered the applicant’s concern regarding her Australian citizen daughter, who would not be able to stay and study in Australia. The Tribunal accepts that the child, who is still very young, would have to return to China with her parents. However, the Tribunal is satisfied that the applicant and Mr Wang would continue to care and provide for their child in China. Given the child is still very young, if the family returns to China before she is school age, she will be able to commence her schooling in China.
102. The Tribunal considers that the family, that is the applicant, Mr Wang and the child, can all return to China and re-establish themselves there.
103. While the hardship, in the Tribunal’s view, is not insurmountable, the Tribunal nevertheless accepts that the impact of the emotional, psychological and economic hardship that may be experienced by the applicant (and her family members) is likely to be significant. The Tribunal gives this circumstance weight against cancelling the visa.
Conclusion
104. The Tribunal has carefully considered all the evidence before it and weighed up the relevant circumstances. The Tribunal considers that the applicant’s present circumstances, including the fact that she has an Australian citizen child, and the hardship that she and her family may experience, her contribution to the community and the time that has elapsed since the non-compliance weigh against cancelling the visa. The Tribunal has also considered, as a primary consideration, the best interest of the child, which weighs against cancellation.
105. Against the above factors, however, are the circumstances in which the non-compliance occurred and the content of the bogus documents. While the Tribunal has accepted that the applicant did not alter the bogus documents herself or give direct instructions for them to be altered, the Tribunal considered that the applicant had little concern or interest in what information or documents were being provided on her behalf so long as it achieved the desired outcome of a permanent residence visa. The Tribunal considers that the applicant knew she was being included as a de facto partner on Mr Guo’s visa application even though she was not in such a relationship with him. She was granted a permanent visa for which she was plainly not entitled. The Tribunal considers the applicant’s conduct, and her continued denial of wrongdoing, demonstrate a disregard for Australia’s laws and undermines the integrity of the migration programme.
106. The Tribunal further considers that cancellation will not necessarily result in the separation of the family unit, because all members of the applicant’s family would be able to return to China and re-establish themselves there. While the Tribunal acknowledges that the best interest of the child weighs against cancellation, the Tribunal considers that the hardship that may be experienced by the child is mitigated by the fact that the family unit will remain intact, that the child will continue to be cared for by both parents and that the child, who is only two and a half years old, would be able commence her primary education in China.
107. Having carefully considered all the circumstances for and against cancellation, the Tribunal considers that the cumulative strength of the circumstances in favour of cancellation outweigh the circumstances against cancellation, including the primary consideration of the best interest of the child. For these reasons, the Tribunal considers that the preferable decision is to cancel the visa.
108. 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
109. The Tribunal affirms the decision 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.

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.

[2023] AATA 1167

4 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction