Li (Migration)

[2022] AATA 822

Li (Migration) [2022] AATA 822 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ping Li

REPRESENTATIVE:  Mr Chang Liu (MARN: 1281423)

CASE NUMBER:  2107973

HOME AFFAIRS REFERENCE(S):          BCC2019/3674863

MEMBER:Kira Raif

DATE:5 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2022 at 11:16am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Federal Circuit Court remittal – incorrect information given in previous visa application – other name known by, date of birth, travel, visa refusal and unsuccessful reviews, and period as unlawful non-citizen not declared – facial image comparison – discretion to cancel visa – information in department’s notice admitted – change of name on advice of fortune teller – application for new visa under new identity made shortly after return to home country – belief that exclusion period did not apply – claim of reliance on agent – applicant’s responsibility for completion of application – lengthy residence – work while unlawful non-citizen – separation from husband – current living arrangements with adult son and financial circumstances – hardship if visa cancelled – mandatory legal consequences – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 98, 101, 107, 109(1), 359A
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of China and claims to have been born in June 1974. The applicant was granted a Contributory Parent visa in July 2014 and a Resident Return visa (RRV) in 2019. In November 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s 101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in February 2020. The applicant seeks review of the delegate’s decision.

3. In January 2021 the Tribunal, differently constituted, affirmed the decision under review. The applicant sought judicial review and in June 2021 the matter was remitted to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 30 March 2022 to give evidence and present arguments. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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?

7. 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.

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

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

9. 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 of the Act.

10. The applicant provided to the first Tribunal a copy of the primary decision record. It indicates that she made an application for a Contributory Parent visa in December 2012 as a spouse and a member of the family unit of Mr Tian. The applicant completed an application form 47PA in which she gave the following answers:

    -In response to Question 41 whether she had been known by any other name the applicant stated ‘no’

    -In response to Question 57 whether she had been removed from any country including Australia or excluded from or asked to leave any country, the applicant stated ‘no’.

11. The applicant also completed Form 80 in which she gave the following answers:

    -In response to Question 7 whether she had been known by other names, the applicant stated ‘no’

    -In response to Question 8 whether she had an alternative date of birth, the applicant stated ‘no’

    -In response to Question 43 whether she had travelled to Australia before, the applicant stated ‘no’

    -In response to Question 57 whether she had been removed or deported from any country, excluded from any country or refused an Australian or other visa, the applicant stated ‘no’.

12. The applicant was granted the Contributory Parent visa in August 2014 and entered Australia in September 2014. On 12 July 2019 the applicant made an application for a RRV. The applicant completed a Record of Responses in which she gave the following answers:

    -When asked if she has been known by any other names, the applicant stated ‘no’

    -When asked if she has ever been removed or deported from any country, the applicant stated ‘no’

    -When asked if she had ever overstayed a visa in any country including Australia, the applicant stated ‘no’.

13. The applicant was granted the RRV on 20 July 2019.

14. The primary decision record indicates that in August 2019 the Department undertook a facial image comparison between the facial image of Ms Ping Li which she provided as part of her health assessment for the Contributory Parent visa in May 2014 and the facial image of Ms Yanhua Li obtained in March 2012 in relation to her detention as an unlawful non-citizen. In September 2019 the examiner concluded that the facial images represented the same person.

15. The primary decision record refers to Departmental records in relation to Ms Yanhua Li. These show that she entered Australia as a holder of a Tourist visa in July 2006, made an application for a substantive visa, which was refused by the delegate and affirmed by the Tribunal. Ms Li’s requests for Ministerial intervention and judicial review were unsuccessful and she became an unlawful non-citizen in May 2008. She was located and detained in March 2012 and departed Australia voluntarily on 20 April 2012.

16. In her response to the NOICC (the applicant claims it was prepared by her agent without her input) the applicant admits that the information in the NOICC was correct. The applicant provided a number of reasons for the incorrect information, including her lack of education, lack of knowledge of the migration laws and illiteracy. These are addressed in more detail below.

17. In oral evidence to the Tribunal the applicant confirmed that she had travelled to Australia previously using a different name. She said that she was afraid of losing her husband as it would have been hard for her to find a partner in Australia.

18. Having regard to the facial image comparison report, as described in the primary decision, as well as the applicant’s own evidence, the Tribunal finds that the applicant had previously been known as Yanhua Li. The Tribunal finds that she had previously travelled to Australia using that name and made applications for Australian visas and had been refused visas. The Tribunal thus finds that the applicant completed the application forms in a way that incorrect answers were given or provided when she claimed in her Contributory Parent visa application and the RRV application that she had not been known by any other name and when she claimed in her Contributory Parent visa application that she had not previously been refused a visa in Australia.

19. The Tribunal finds that the applicant completed the application forms in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s 101(b) of the Act. The Tribunal finds that there was non-compliance by the applicant in the way described in the NOICC.

    Should the visa be cancelled?

20. 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).

21. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). They are:

    The correct information

22. The correct information is that the applicant had been known by another name, had a different date of birth, had previously travelled to Australia, had been asked to leave Australia and had previously overstayed an Australian visa.

    The content of the genuine document (if any)

23. This is not relevant in the present case.

    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

24. The applicant appears to suggest that the exclusion period would not have applied to her Contributory Parent visa to which she would have been entitled whether or not the correct information was known. The applicant claims that on advice of her friends, she was willing to disclose the information about her immigration history because the exclusion period would not apply to her, so she has not benefitted from withholding that information. Whether or not the exclusion period applied in relation to the Contributory Parent visa, the issue in this case is not only the exclusion period as there are other provisions that would have been relevant. These include whether the applicant had a debt to the Commonwealth (arising as a result of her previously unsuccessful review with the Tribunal and judicial review) and whether she was of good character (to which the applicant’s immigration history, unlawful stay in Australia and the use of a different identity and identity documents are relevant). The Tribunal also considers the issue of identity overall is relevant to any visa assessment. The decision-makers had been denied the opportunity to fully consider these matters due to the applicant’s failure to disclose her first visit to Australia and her immigration history.

25. The representative submits that the applicant’s past conduct would not have precluded the grant of the visa on character grounds. It is not for this Tribunal to determine whether the applicant would have been granted the Contributory Parent visa or the RRV if the correct information was known. It is sufficient that the decision to grant the visas was based, because of the matters set out above, on incorrect information.

    The circumstances in which the non-compliance occurred

26. In her submission to the first Tribunal the applicant confirms that she was known by another name. The applicant submits that she was unlucky using the first name and on advice of a fortune-teller, she decided to change her name and date of birth. The applicant states that she has two hukous and two national ID cards (she provided to the first Tribunal evidence that one of her hukous had been cancelled in China) and states she had never hidden her two identities. The Tribunal has considerable concerns about the veracity of these explanations, given the timing of the applicant’s change of identity. It appears, from the information in the primary decision record, that after returning from Australia, having lived here as an unlawful non-citizen for a number of years (and being subject to an exclusion period in relation to at least some visa applications) the applicant changed her name, married her then husband and made an application for another Australian visa without disclosing her previous identity and previous visit to Australia. It is of significant concern to the Tribunal that the applicant made the decision to make such changes in the relatively short period after her return to China from Australia and before making a new visa application. In the Tribunal’s view, the timing of these changes is indicative of the applicant’s desire to withhold information about her true identity and her immigration history and thus deceive the Australian immigration authorities, rather than her desire to avoid the bad luck associated with the old identity.

27. Nevertheless, whatever the reasons for the change of identity, the issue here is not why the applicant decided to change her name and date of birth, but her failure to disclose that information, as well as her previous visa history, in her visa applications.

28. The applicant states in response to the NOICC, essentially, that due to her lack of formal education and lack of knowledge or understanding of the Australian laws, she misunderstood what was required of her. The applicant states that another person completed the forms on her behalf. The Tribunal finds the applicant’s explanation unpersuasive and does not accept it. This is because the issue in question does not relate to any complex legal construct or concept that the applicant may have misunderstood. Rather, the questions were very simple ones and related to whether the applicant was known by another name and had previously had a visa refused. The applicant would have been well aware of these matters irrespective of her level of education or level of knowledge of the Australian laws. In the Tribunal’s view, the applicant was well aware what the questions meant and what answers were required. The Tribunal is mindful that by the time the applicant made the application for the Contributory Parent visa and later the RRV, she had already spent some years in Australia, sought the initial Tourist visa and other visas in Australia, including a substantive visa and bridging visas, had made applications for merits review and judicial review and generally, had a significant number of interactions with the immigration authorities. Even if the applicant had assistance in these interactions, the Tribunal does not accept that she completely lacked knowledge or understanding of the visa issues and identity issues. In the Tribunal’s view, a much more likely explanation is that the applicant had decided to deliberately withhold the truthful answers so as not to jeopardise the possibility of visa grant.

29. The applicant also submits in her evidence to the Tribunal that she gave the full information to her previous agent and that it was her former migration agent who provided the incorrect information while she is an ‘innocent person’ who had relied on the advice of a professional migration agent. The applicant submits that the agent told her she could use either identity and that she would not be excluded from applying by her immigration history. The Tribunal does not accept that evidence. Firstly, the Tribunal is of the view that the application form, much of which relates to the applicant’s personal information, required input from the applicant and could not have been completed by her agent alone. Thus, the Tribunal is of the view that the applicant would have at least some involvement in the preparation of her visa application even if the forms were completed by her agent. If she did not, the Tribunal is of the view that the applicant should have had such involvement and could have asked the agent to read the answers on the forms back to her to ensure their correctness. The Tribunal is mindful that the issue here is not only the applicant’s Contributory Parent visa application made some years ago but also the more recent RRV application. Secondly, the agent’s advice, according to the applicant, is that she could use either identity and would not be excluded from visa grant. That advice may have been correct. However, the issue here is not which identity the applicant had used in her applications but her failure to disclose her previous identity and visa refusals. Thirdly, and importantly, s 98 makes it clear that the applicant is responsible for the completion of the application even if it is completed by another person.

30. The Tribunal does not accept that the applicant is an ‘innocent person’ and that the incorrect answers were provided without her knowledge. The Tribunal has formed the view that the applicant was most likely aware of the information that was submitted with her applications, and gave consent to the withholding of the information about the use of another identity and previous immigration history. Even if the Tribunal were to accept the applicant’s explanation (which it does not), the Tribunal is of the view that the applicant should have been aware of what information was being submitted in her applications, if she had taken even basic steps to check the information in these applications.

31. To the present Tribunal the applicant stated that she did not know she had to use the earlier name and she could have used either name to purchase a property so she thought she could use either name. The Tribunal acknowledges that the applicant could have used any name but that is not the issue here. The issue is not the use of a different name but the applicant’s failure to disclose the previous identity, as well as her previous visa refusal.

32. The applicant also claims that she did not believe the exclusion period – and information about her immigration history – were relevant to her Contributory Parent visa application. Whether or not that was the case, it was not up to the applicant to determine what was relevant to her application and what information she could provide or withhold.

33. The applicant told the Tribunal that her previous marriage failed and she was afraid of losing her husband. That seems more truthful than the applicant’s other evidence. That is, the applicant had deliberately withheld information about her other identity and previous travel to Australia in order to ensure the grant of the visa.

    The present circumstances of the visa holder

34. The applicant’s evidence to the Tribunal is that she and her husband Mr Tian separated in March 2020.

35. The applicant told the Tribunal that the case has affected her for a long time, she cannot sleep and has been suffering from depression. The applicant told the Tribunal that she saw a psychologist previously but not in the past two years because she had been prescribed anti-depressant medication by her GP. (The applicant was unable to name the medication.) Following the hearing, the applicant provided to the Tribunal a medical certificate dated 1 April 2022 stating the applicant had been prescribed medication for anxiety-related insomnia. There is no reference to the applicant suffering from depression and the applicant has not presented any other independent evidence (such as a medical report) of her suffering from depression. The applicant’s evidence to the Tribunal is that there is no other treatment in addition to the medication and she has not seen a psychologist for two years. The applicant’s claimed depression (or anxiety to which the report refers) appear to be under control with ongoing medication. There is no evidence before the Tribunal that the applicant would be unable to obtain adequate treatment if she was to leave Australia.

1. The applicant told the Tribunal that she has separated from Mr Tian but he still provides her with financial support. She lives with her son who has his own business, is about to get married and to purchase a property. The applicant told the Tribunal that she had borrowed about AUD100,000 in China to help her son with the property purchase. The applicant was extremely vague in her answers when trying to explain how she was able to borrow a large sum when she claims to be unemployed and have no income. Her evidence is that she was able to borrow money simply because she lives in Australia and nothing more was required and the Tribunal finds that explanation utterly implausible. The Tribunal does not accept that the applicant would have been able to borrow a large sum in China on the mere basis of living in Australia (she claims she has not worked for two years). The Tribunal has formed the view that the applicant was deliberately withholding information about her income in Australia, which would have enabled her to borrow a large sum in China. The Tribunal has formed the view that the applicant’s evidence about her financial circumstances was not truthful.

2. The applicant states that she has nothing in China and no place to live and may not have any income so she cannot support herself. She claims that it is difficult to find a job for anyone at her age. The applicant presented no evidence of having sought employment and of having been denied employment. The applicant presented no evidence about her employment situation in China. The Tribunal does not accept on the basis of the applicant’s own statement and no other probative evidence that the applicant would be unable to find gainful employment in China. The Tribunal is also mindful of the applicant’s evidence that she receives financial support from Mr Tian and her son and there is no obvious reason why that support cannot continue if the applicant was to live in China. The applicant told the Tribunal that her son has his own life and cannot support her (even though she claims he has been doing that in Australia). The applicant also suggested that she helps her son with the business and he supports her but would not support her if she was in China, particularly if he is married and has a child. The Tribunal finds that evidence unpersuasive.

3. The Tribunal found the applicant’s evidence about her financial circumstances has been untruthful. The Tribunal does not accept the applicant’s evidence that both her son and Mr Tian will refuse to give her financial support in China when she claims they had been supporting her in Australia. There are no statements and no evidence from Mr Tian or the applicant’s son before the Tribunal to indicate what their intentions might be and the Tribunal has formed the view that the applicant has not been truthful about her financial affairs. While the Tribunal accepts that the cancellation of the visa (if it was to lead to the applicant’s departure from Australia) may lead to financial hardship because of the loss of employment in Australia, the Tribunal does not accept that the applicant would be unable to support herself in China or that she would be unable to re-establish herself in China. Given the length of the applicant’s residence in Australia, the Tribunal accepts that the applicant has formed various ties in Australia, including family and social and employment and other ties, and the Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant.

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

4. Nothing adverse is known about the applicant’s conduct concerning her obligations under the Act.

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

5. There are no other known instances of non-compliance with the provisions of Subdivision C of Division 3 of Part 2 of the Act.

   The time that has elapsed since the non-compliance

6. The application for the Contributory Parent visa was made in December 2012 and the application for the RRV was made in July 2019. Over nine years have passed since the first non-compliance and two and a half years since the second non-compliance. The Tribunal acknowledges it is a lengthy period.

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

7. There is an allegation that the applicant had paid a substantial sum of money to the primary visa applicant to be included in his Contributory Parent visa application. That allegation has been discussed with the applicant by the previous Tribunal. The Tribunal discussed it with the applicant (she denies the allegation) but the Tribunal considers it to be entirely irrelevant to the issues to be determined here and places no weight on the allegation.

8. The primary decision record indicates that the applicant remained in Australia as an unlawful non-citizen. The applicant concedes in her evidence to the first Tribunal that she had remained in Australia as an unlawful non-citizen between May 2008 and March 2012, for a period of approximately four years. The applicant’s evidence to the first Tribunal is that she had engaged in employment during that period. It is against the requirements of the Act to remain in Australia without a visa and to engage in employment without a visa authorising the visa holder to do so. The Tribunal finds that such matters are capable of constituting breaches of the law, although the Tribunal acknowledges that the applicant has not been charged, nor convicted of these offences.

9. It appears that the applicant has also been convicted of other offences in 2016, although the conviction was not recorded. In her response to the first Tribunal’s s 359A letter the applicant explains the circumstances of the conviction, stating that she did not attend the court and was required to pay a fine. The applicant states that she did not believe the conviction was a criminal offence. The Tribunal acknowledges that no conviction was recorded and that the penalty appears to be insignificant, perhaps reflective of the minor nature of the offence. While in the Tribunal’s view, the conviction itself (whether or not it was recorded) may be taken as evidence that the applicant had breached the law, in the circumstances, the Tribunal does not draw any adverse inferences from the applicant’s conduct and does not consider that this particular breach of the law weighs in favour of the cancellation.

   Any contribution made by the visa holder to the community

10. The applicant provided evidence of having paid taxes while employed. She refers to the support she has provided to new migrants. The Tribunal accepts that evidence and accepts that the applicant has made some contribution to the community.

11. 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 would be consequential cancellations under s 140

12. There are no persons whose visas would be subject to consequential cancellation.

    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

13. There are no children who would be affected by the cancellation of the visa. The applicant’s son is an adult.

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

14. The applicant told the Tribunal that she has nothing in China and nowhere to live. While the Tribunal accepts that evidence, for the reasons set out above, the applicant has not satisfied the Tribunal that she would be unable to either find gainful employment or get support from those who have been supporting her in the past. The Tribunal does not consider these matters give rise to Australia’s protection obligations.

15. The Tribunal does not consider that Australia’s protection obligations arise in this case and finds that the cancellation would not lead to the applicant’s removal in breach of non-refoulement obligations.

16. The applicant’s adult son lives in Australia. Her evidence is that she has separated from her husband. The Tribunal does not consider that family unity obligations would be breached by the cancellation.

    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

17. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, she may be 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 cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements she may have acquired as an Australian permanent resident. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are restrictions imposed by s 48 on the types of visas the applicant could apply for onshore. The Tribunal accepts that these consequences may cause hardship to the applicant.

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

18. In her submission to the first Tribunal the applicant states that she has no property in China and that it would be hard for her to resettle in her home country. The applicant repeated that evidence to the present Tribunal. The Tribunal acknowledges that the applicant has been living in Australia for a lengthy period (including a number of years holding temporary visas or no visas at all). As noted above, the Tribunal is prepared to accept that the applicant has settled in Australia and that she has formed social, employment and other ties in this country. The Tribunal also accepts, given the length of her stay in Australia, that the applicant may have limited ties to China.

19. The applicant told the Tribunal that her son may have a baby and she would be unable to look after the baby if she is not in Australia. The Tribunal accepts that is the case (subject to the applicant being granted other visas in the future that may enable her to travel to Australia). However, the applicant’s evidence is that her son is not yet married, is about to get married to his girlfriend and the girlfriend is not yet pregnant but is preparing for the pregnancy. Thus, the existence of a child is, at this stage, purely hypothetical. In such circumstances, the Tribunal does not accept that the potential inability to care for a (not yet existing) child constitutes hardship.

20. The applicant told the Tribunal that if she returns to China, she would be alone and without family support and will not be able to survive. She does not know what she would do and may ‘break down’. The representative submits that the applicant has spent the ‘majority of her life’ in Australia (as noted elsewhere, the Tribunal accepts that the applicant is used to living in Australia and has family support in Australia and would not have such support in China). The Tribunal accepts that such matters would cause her significant hardship.

21. The applicant told the Tribunal that if she cannot work in Australia, she cannot help her son to pay for the property and the Tribunal accepts that evidence but, as noted above, there are no financial records before the Tribunal, in particular concerning her son’s financial affairs, that would indicate that the son requires the applicant’s financial contribution.

22. Generally, the Tribunal accepts that the applicant’s return to China may cause her considerable hardship.

23. The representative submits that the previous breach of the law was ‘on the lower end of the scale’ and would not have been relevant. The representative submits that the past breaches of the migration law would not have resulted in her application being refused. That may or may not have been the case and, as noted above, the Tribunal considers the relevant issue here is that the decision to grant the visa was based on incorrect information, not whether the visa would have been granted if the correct information was known.

24. The Tribunal has formed the view that the applicant completed the application form in a way that incorrect answers were given or provided and that there was non-compliance with s 101 of the Act. The Tribunal finds that there are grounds for cancelling the applicant’s visa.

25. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant. Most significantly, the applicant has been living in Australia for a lengthy period, has family and social and employment connections here and has none of that in China. The Tribunal accepts that the cancellation of the visa would result in loss of employment opportunities and income in Australia and may cause financial hardship to the applicant. The Tribunal accepts her evidence that she has no place to live and would have no family support in China. The Tribunal also accepts that the applicant had made a contribution to the community through the payment of taxes and help to others. There are strong reasons for the visa not to be cancelled.

26. The Tribunal does not draw any adverse conclusions from, and gives no weight to the applicant’s previous conviction. The Tribunal has found that the cancellation would not result in the breach of Australia’s international obligations.

27. The Tribunal has given significant weight to the circumstances in which the non-compliance occurred. The applicant travelled to Australia, overstayed her visa, remained here as an unlawful non-citizen for close to four years, returned to China and changed her identity and then made another application for the visa and withheld information about her previous visit and a different identity. The Tribunal rejected the various explanations offered by the applicant for the non-compliance and has formed the view that the applicant had knowingly and deliberately withheld the information so as to ensure she would be able to return to Australia; that is, the breach was deliberate, it was intentional and it was done with the purpose of gaining a benefit for the applicant. These factors weigh very strongly in favour of the cancellation.

28. The Tribunal also places weight on the fact that the decision to grant the visa was based, in part, on incorrect information. The Tribunal acknowledges the applicant’s claims that she could have been granted the visa even if the correct answers were given but it is not a determination that this Tribunal needs to make. The Tribunal has formed the view that the incorrect information was relevant to the assessment of the applicant’s character and her identity was highly relevant to the decision to grant her the visa. This factor also weighs in favour of the cancellation.

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

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

    DECISION

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

    Kira Raif
    Senior Member