Li (Migration)

Li (Migration) [2022] AATA 978 (25 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Qianlan Li
CASE NUMBER:  2111121
HOME AFFAIRS REFERENCE(S):          BCC2018/4767289
MEMBER:R. Skaros
DATE:25 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.

Statement made on 25 February 2022 at 9:28am
CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – incorrect answers and bogus documents given in visa application – de facto relationship and residence history – tenancy agreement and bank and telephone statements – forensic examination showed address on documents did not match registered address – contradictory information given in other applications at the same time – claim not to have received department’s notice – claim of genuine relationship and living together at other addresses, with supporting evidence provided – visa application made by partner and agent – responsibility to ensure accurate information and genuine documents – applicant would have been eligible for visa in any case – potential hardship – work, marriage to permanent resident and established life – possibility of applying for partner visa, not subject to exclusion period – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 48, 98, 99, 100, 101(b), 103, 107, 109(1), (2), 359AA, 375A
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 189.211, Schedule 4, criterion 4020
CASE
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with ss 101(b) and 103 of the Act. A copy of the delegate’s decision record was provided with the application for review.
On 12 November 2021, the Tribunal received a statutory declaration from the applicant, together with bank statements and letters of support, details of which are set out below.
The applicant appeared before the Tribunal on 19 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Following the hearing, on 4 January 2022, the Tribunal received a statement from the applicant, together with supporting documents regarding her present circumstances, which the Tribunal has had regard to further below in its considerations.
Non-disclosure certificate - s 375A
Various documents on the Department’s file were covered by a non-disclosure certificate under s 375A of the Act. The documents related to internal investigations conducted by the Department and a document examination report regarding documents provided with the Subclass 189 skilled visa application.
A copy of the certificate was provided to the applicant and she was invited to comment on its validity. No written submissions were made on the issue of validity. At the hearing, the Tribunal discussed with the applicant the reasons given by the Department for the non-disclosure of certain documents, and explained to the applicant the reason the Department issued the non-disclosure certificate, namely: that the disclosure 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; and because the documents contained confidential information, the disclosure of which has not been consented to.
The Tribunal explained to the applicant that, notwithstanding the non-disclosure certificate placed on certain documents in the Department’s file, the Tribunal was still required to inform her of any information in those documents which may be relevant to her case. The Tribunal discussed with the applicant, generally, the nature of the documents and the information contained in the documents which may be relevant to the issues in her case.
The Tribunal noted that some of the information in the documents had already been disclosed to her in the Notice of Intention to Consider Cancellation (the s 107 notice) and included in the delegate’s decision record. The Tribunal noted that the Department’s file also contained other information, some of which was covered by the non-disclosure certificate, and some which was not, which was not disclosed to her and may be adverse, and that the Tribunal would inform her of that information and invite her to comment on it. The Tribunal informed the applicant of the procedure in s 359AA of the Act.
The applicant did not wish to make any comments on the validity of the certificate. In considering the validity of the certificate for itself, the Tribunal is satisfied that the certificate, which was signed by a delegate of the Minister on 31 August 2021, identifies valid public interest reasons for non-disclosure of the specified documents. The Tribunal is satisfied that the s 375A certificate is valid. The Tribunal is also satisfied that any relevant information contained in the documents covered by the certificate has been disclosed to the applicant.
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.
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 101(b) and s 103 of the Act in the following respects.
Notice of Intention to Consider Cancellation
The Tribunal notes that the s 107 notice was set out in full in the delegate’s decision record and indicated the following.
The applicant applied for the Skilled Independent (Subclass 189) visa on 15 June 2016. In the application, she included Mr Jingyu Li (DOB [specified]) as a dependent. It was indicated in the form that the applicant and Mr Li commenced a de facto relationship on 21 February 2015.
The applicant and Mr Li’s residential address was noted in the visa application form as being at Rancom St, Botany NSW. The application form also included declarations relating to the provision of correct information on the application form and any attachments and acknowledging that if any information is found to be incorrect or any documents are found to be fraudulent, the visa, if granted, may subsequently be cancelled.
In support of the Subclass 189 visa application, the following documents were provided as evidence of the applicant and Mr Li’s residence at Rancom St, Botany NSW:
·Commonwealth Bank Statement 11 – Q Li – … Rancom St, Botany NSW 2019 – Account Number (ending in 691) – statement period 4 Dec 2015 – 3 March 2016.
·Commonwealth Bank Statement 11 – Q Li – … Rancom St, Botany NSW 2019 – Account number (ending in 691) – statement period 4 Mar 2016 – 3 Jun 2016.
·Vodafone Tax Invoice – Qianlan Li - … Rancom St, Botany NSW 2019 – Account number (ending in 588) – date of issue 8 Apr 2016.
·Vodafone Tax Invoice – Qianlan Li - … Rancom St, Botany NSW 2019 – Account number (ending in 588) – date of issue 8 Mar 2016.
Based on the above information, and satisfying other legislative criteria, the applicant and Mr Li were granted the Skilled Independent (Subclass 189) visa on 21 September 2016.
A forensic examination was subsequently undertaken by the Department of the Commonwealth Bank statements and Vodafone tax invoices (listed above), which were provided with the visa application, and it was found that the residential addresses shown on the documents provided do not match the residential addresses officially linked and registered to those documents.
The delegate who issued the s 107 notice considered that the documents provided with the visa application (listed above) are bogus documents, as defined at s 5(1) of the Act, as they have been altered by a person without authority to alter it.
The delegate noted that the applicant had provided these documents to demonstrate that she and Mr Li were residing together at Rancom Street, Botany, NSW, and that they were in a genuine committed de facto relationship.
It was further recorded on the s 107 notice that the applicant had applied for the Skilled (Provisional) Graduate Work Stream (Subclass 485) visa on 31 July 2015, and in that application the applicant stated that her relationship status was ‘Never Married’, and she did not include any dependents. Further, the applicant’s residential address on that application was recorded at Shipley Ave, North Strathfield NSW 2137. The applicant had also provided a BUPA health insurance document dated 12 August 2015 showing her residential address at Shipley Ave, North Strathfield NSW 2137.
As part of the Subclass 189 visa application, the applicant submitted a letter signed by her landlord, Shanshan Che, dated 4 September 2016, which stated that the applicant and Mr Li resided as a de facto couple at Shipley Ave, North Strathfield NSW 2137 from March 2015 to February 2016. The applicant also provided a rental agreement for that address, dated 12 March 2015, which lists her and Mr Li as tenants at Shipley Ave, North Strathfield, NSW, from 21 March 2015 to 19 September 2015.
The delegate considered that the information provided contradicted the information provided by the applicant in her Subclass 485 visa application, in which she stated she was not married and did not list any dependents.
Given the conflicting information, together with the adverse outcome of the document examination, the delegate considered that the applicant was not in a genuine de facto relationship with Mr Li, and that Mr Li had not resided with the applicant at Shipley Ave, North Strathfield, NSW 2137.
The delegate considered that the applicant had provided incorrect information in the application form for the Subclass 189 visa, at pages 2, 3 and 4, about being in a de facto relationship with Mr Li, which she claimed had commenced on 21 February 2015. The delegate found that the information was incorrect because the forensic examination of the Commonwealth Bank and Vodafone documents in the applicant’s name, which were provided as evidence that the applicant and Mr Li were residing together as a de facto couple at Rancom Street, Botany, NSW, had been intentionally altered to demonstrate that the applicant was in a genuine de facto relationship with Mr Li and residing at that address.
Further, the applicant did not declare to the Department that she was in a de facto relationship with Mr Li when she applied for the Subclass 485 visa on 31 July 2015, despite claiming in the Subclass 189 visa application to have been in a de facto relationship with Mr Li since 21 February 2015.
The delegate considered that the applicant and Mr Li were not in a de facto relationship and were not residing together as de facto partners at Rancom St, Botany NSW. As such, the delegate considered that the applicant had not complied with s 101(b) of the Act.
In relation to the non-compliance with s 103 of the Act, the delegate considered that the Commonwealth Bank statements and Vodafone tax invoices (listed above), which were provided with the Subclass 189 visa application as evidence of the applicant and Mr Li’s cohabitation, were bogus documents within the meaning of s 5(1)(b) of the Act as they appear to have been altered by a person who does not have the authority to do so.
The delegate relied on the forensic examination undertaken by the Department of the documents, which had shown that the residential address on those documents does not match the residential address officially linked and registered to those documents. On this basis, the delegate concluded that the applicant did not comply with s 103 of the Act.
Response to the s 107 notice
The delegate’s decision record indicates that the applicant did not respond to the s 107 notice. In her statutory declaration to the Tribunal dated 12 November 2021, the applicant stated that the s 107 notice was sent to the email address on her visa grant notification, which was not her email address. She also did not receive the physical copy of the notice as she had moved out of the residential address in Olympic Park. The applicant stated that she came to know about the cancellation of her visa from Mr Li, who contacted her after his visa was also cancelled.
The Tribunal accepts that the reason the applicant did not respond to the s 107 notice is because she had not received it. The Tribunal notes that the applicant did provide a copy of the delegate’s decision record to the Tribunal, which included the full text of the s 107 notice. The applicant also made a request for access to written material before the Tribunal. The written material, excluding documents covered by the s 375A certificate, was provided to the applicant on 1 November 2021.
As noted above, the Tribunal received a statutory declaration from the applicant dated 12 November 2021, in which the applicant detailed her immigration history and qualifications, including details of her master’s degree in accounting, which she completed in Australia in August 2013.
The applicant claimed to have first met Mr Li at one of their friend's gatherings in mid-2014, where they exchanged details and kept in contact with each other. She claimed that in early February 2015, she commenced a romantic relationship with Mr Li. She stated that Mr Li moved into Shipley Avenue, North Strathfield, and began living with her as her boyfriend. They remained living at this address as a couple until December 2016. She stated that she had lived at that address since mid-2014 where she rented a room.
The applicant stated that in about February 2016, she and Mr Li moved to Queen Street, North Strathfield and that they both moved out of this address in December 2016. The applicant claimed that Mr Li lived with her during this period, and she believed they were in a genuine de-facto relationship.
The applicant then stated that they moved to Rowe Street, Eastwood in late December 2016 where she rented a granny flat, but that Mr Li did not live at that address as he had returned to China in December 2016.
The applicant stated that after completing her qualifications, in May 2015, she arranged a migration agent in Chinatown to assist with her Subclass 485 visa application. She stated that the agent asked her if she was married and she replied "No" and that from recollection, her agent only asked her whether she was married or not married and had not asked her about any of the other choices in that category.
The applicant stated that in September 2015 she was employed as a full time Assistant Accountant at Foxconn Australia Pty Limited, that this was her first full time job in Australia, and that she remains employed in that position until now. The applicant stated that she also worked as a part time waitress (night shifts) at Outback Steakhouse, North Strathfield, and had to study English to prepare for her language test (PTE) for the Subclass 189 visa application. She stated that it was a difficult period for her due to many commitments and that she relied on Mr Li who looked after her during this time. She stated that she was dependent on his care and help.
The applicant stated that in April 2016 she obtained the required English results and met all the requirements to be eligible for the Subclass 189 visa. She stated that her ex-boyfriend, Mr Li, wanted to be included in her Subclass 189 visa application and she agreed that they could apply for the visa together as she was in a de facto relationship with him. She stated that Mr Li had also proposed to deal with the visa application because he knew a migration agent. She trusted Mr Li because he was her boyfriend. She did not think she had any issues with the visa application because she met all the requirements for the Subclass 189 visa, and she believed that Mr Li’s assistance would reduce the pressure on her so she could focus on her work commitments.
The applicant stated that she agreed to let Mr Li handle the visa application process and she provided the documents requested by Mr Li's migration agent (Hui Zheng). The applicant stated that she has never met this agent, nor did she directly supply him with any documents. She claimed to have given all her documents to Mr Li, who told her in September 2016 that their visas had been granted.
The applicant claimed that her relationship with Mr Li continued and that she resigned from her job at the Outback Steakhouse in November 2016 so she could spend more time with Mr Li. She stated that in December 2016, Mr Li travelled to China and she returned to China in January 2017 to visit Mr Li’s parents. The applicant claimed that she and Mr Li stayed together as a couple while they were in China. She stated that they planned to visit her parents in Suzhou, but those plans were cancelled because her grandfather passed away and she was not able to take Mr Li to her grandfather’s funeral due to Chinese culture.
The applicant stated that she returned to Sydney in February 2017 and that Mr Li informed her that he wanted to end the relationship. She stated that Mr Li then moved to premises in Botany in February 2017 when he returned from China. She stated that she had never lived at the Rancom Street, Botany address.
The applicant stated that in early May 2017 she and Mr Li each purchased their own properties in the same building in Olympic Park. She claimed that after settlement they moved in and lived together in his apartment for about one month. She stated that when settlement was finalised for her apartment (in June 2017) she then moved into her apartment, and she and Mr Li lived separately. The applicant stated that she attempted to restore the relationship with Mr Li on a few occasions, but the relationship did not recommence though they remained in contact. She stated that in January 2018, when she was in China, she found out through social medial posts that Mr Li had married. She returned to Sydney in January 2018 and ceased communication with Mr Li. She stated that she moved out of her apartment and lived in Eastwood temporarily.
The applicant stated that she suffered from depression in 2018 and 2019. She was prescribed attendance at an online course about anti-depression. She received care and support from her family and friends. She gradually felt better and has recovered from her depression. In May 2020 the applicant met Mr Yuchen Chen, who is her current boyfriend, and they commenced living together in July 2020.

The applicant stated that she had not communicated with Mr Li from January 2018 until August 2021, when he contacted her via WeChat to inform her that his visa had been cancelled because her visa had been cancelled. The applicant stated that Mr Li had sent her a copy of his cancellation notice and she made attempts to check her visa status and find out why she was not informed of the cancellation. She stated that Mr Li attempted to contact the agent, but the agent did not pick up the calls. She explained that the reason she did not receive the correspondence from the Department was because it was sent to an email address which did not belong to her and she was not living at Olympic park, to which the Department’s letters were sent.
The applicant stated that she believes her relationship with Mr Li was a bona fide de facto relationship until June 2017. She stated that she had never provided any false documents to Mr Li and the Department of Home Affairs. She claimed to have provided all the relevant documents to Mr Li and that he passed those documents to the migration agent for their Subclass 189 visa application. The applicant stated that she does not know how the documents were altered. She stated that it was not necessary for her to alter the documents as she met all the requirements for the Subclass 189 visa. The applicant referred to the attached documents (marked "A") and stated that they are true copies of her Commonwealth Bank account statements for the period from 4 December 2015 to 3 March 2016, and from 4 March 2016 and 3 June 2016.
The applicant stated that she believes the documents were altered by Mr Li and his agent as the application was made by e-application. She stated that Mr Li and his agent had never asked her to check the documents which had been submitted to the Department of Home Affairs. She also believes that the Hotmail email address (to which correspondence was sent) was created by Mr Li’s migration agent (Hui Zheng) as she has never known that email address and did not have access to it. She stated that she has never lived with Mr Li at Rancom Street, Botany.
Evidence at the hearing
The Tribunal discussed with the application the information set out in the s 107 notice and other information before it (which the Tribunal later put to the applicant under s 359AA), which indicated that incorrect information and bogus documents were provided with the Subclass 189 visa application.
The applicant stated that she did not reside at the Botany address as indicated in the Subclass 189 visa application form and documents. The applicant nevertheless claimed to have had a de facto relationship with Mr Li. When asked about the history of the relationship, the applicant stated that she met Mr Li in 2014. She recalls that he was living in Ultimo at the time. She stated that Mr Li moved into Shipley Ave, North Strathfield on 21 February 2015 and that they lived there for about one year or one year and two months. They moved out in April 2016. The Tribunal noted that, in her recent statement, she indicated that they moved out in December 2016. The applicant stated that this was an error because she moved into Queen St, North Strathfield in February 2016. The applicant stated that she had moved many times so may have recalled this information incorrectly.
The Tribunal informed the applicant that it had a copy of a student visa application lodged by Mr Li in May 2015, which was after she claims they commenced a de facto relationship and were residing at Shipley Ave, North Strathfield, in which Mr Li indicated that he was living at Bulwara Rd, Ultimo, and that he was not in a relationship. It also informed the applicant of a Commonwealth Bank statement for Mr Li which also showed that he was residing at Ultimo at the time she claims they had been living together in North Strathfield. The Tribunal explained to the applicant that the information from Mr Li’s application indicates that he was residing in Ultimo and not with her at Shipley St or Queen St (North Strathfield) as claimed. In response, the applicant stated that she is not sure how that happened, she does not know the reason and it was strange.
When asked about the names of Mr Li’s parents, the applicant stated that she cannot remember clearly. She used to call Mr Li’s mother Auntie Xi. The Tribunal expressed to the applicant its doubt about her claim to have travelled to China to stay with the applicant and his parents, given her inability to recollect their names. In response, the applicant stated that it was a long time ago. Also, she stayed in a hotel and did not live with Mr Li’s parents as the atmosphere was not good. She stated that they just had a meal together.
Invitation to comment on information: s 359AA
At the hearing, the Tribunal explained to the applicant the procedure in s 359AA, including that the applicant could request additional time to comment on or respond to information. The Tribunal particularised the information for the applicant as follows:
As part of the Subclass 189 visa application several documents were provided, including CBA bank account statements in your name and Mr Li’s name, Vodfone tax invoices in your name and Mr Li’s name, a rental agreement, and a statement from the landlord (Shan Shan Che) of Shipley Ave North Strathfield.
The Tribunal also has before it a copy of the visa application form in relation to your Subclass 485 visa application and a copy of the visa application form in relation to Mr Li’s application for a student visa.
The Tribunal observed numerous inconsistencies in the evidence regarding your claim to have been in a de facto relationship with Mr Li and to have resided together:
Firstly, the CBA account statement for Mr Li for the period from 1 January 2015 to 30 June 2015 which was provided with the Subclass 189 visa application shows the address as Shipley St North Strathfield NSW 2137, however, the Department’s document examination unit found that the address had been altered, and that the address registered to that document is Bulwara Road Ultimo NSW 2007. This is the same address that Mr Li used (or had stated was his residential address when he applied for a Student visa on 6 May 2015). The Tribunal also notes that Mr Li did not indicate in that student visa application (lodged on 6 May 2015), that he was in a de facto relationship or that you were his dependent. This information is inconsistent with your claim that Mr Li resided with you at Shipley St North Strathfield from February 2015 until February/April 2016 and also casts doubt on your claim you had commenced a de facto relationship with Mr Li in February 2015.
Secondly, as part of the Subclass 189 visa application, a statement dated 4 September 2016 from the landlord of Shipley Ave North Strathfield (Ms Shan Shan Che) was provided, together with a rental agreement, stating that you and Mr Li lived as a genuine de facto couple at the premises since March 2015, and that your relationship was genuine and continuing from March 2015 until February 2016. This statement appears inconsistent with information suggesting that Mr Li was residing in Ultimo during that time. The inconsistencies cast doubt over the reliability of the landlord’s statement.
Thirdly, a tenancy agreement for Rancom St Botany dated 28 July 2016 (for a period commencing 11 August 2016) was provided with the Subclass 189 visa application, which included your name and Mr Li’s name as tenants. Other documents (some of which were mentioned in the s.107 notice) were also provided and showed that you and Mr Li had resided at the address in Botany, being the same address recorded on the visa application form. The information on those documents is inconsistent with your claim that you and Mr Li had resided together at Queen St North Strathfield from February/April 2016 until December 2016.
The Tribunal explained to the applicant that the information was relevant because the inconsistencies in the evidence undermine her claim to have resided with Mr Li as her de facto from February 2015 until December 2016 at Shipley Ave and Queen St, North Strathfield. The Tribunal explained to the applicant that if it relied on the information, together with other evidence before it, it may find that incorrect information about her residential addresses and relationship status was provided with the visa application. It may also find that bogus documents were provided with the application. The Tribunal also explained that the information may be relevant to the considerations in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant confirmed that she understood the information being put to her by the Tribunal and requested some time (a few minutes) to consider her response, to which the Tribunal agreed.
In her response, the applicant stated that when she met Mr Li, he lived in Ultimo, but she is not sure why he changed the Ultimo address to the Botany address. When Mr Li applied for his student visa (through an agent) he used the address in Ultimo and she is not sure why he would use the Ultimo address. In relation to the Commonwealth Bank statement, which was altered to show Shipley Ave, North Strathfield, when the real address was Ultimo, she stated this may have been because they had established their relationship in February 2015, so Mr Li may have just used his previous address, but she is not sure why he had done that. The applicant stated that she provided all the documents related to the Subclass visa 189 to Mr Li, who provided them to his agent, so she did not touch or look at his bank statements.
The Tribunal explained to the applicant that under the Act, where someone acts on her behalf in relation to an application, any information or documents provided with that application are taken to have been provided by her. The applicant stated that she understood this.
The Tribunal asked the applicant why, if she and Mr Li were genuinely living at Shipley St and Queen St, North Strathfield, documents would be altered to show they were residing in Botany when, as she claimed, Mr Li did not move to the Botany address until much later (in February 2017). In response, the applicant stated that she downloaded her documents (bank statements and phone bills) and gave them to Mr Li, but she is not sure why he changed the address to Botany even though she had never lived at that address. The applicant then stated that Mr Li had told her it was a relative’s address.
The Tribunal explained to the applicant that it may not be satisfied that she and Mr Li were in a de facto relationship or that they had lived together as claimed and may find that incorrect information and documents had been provided with the visa application to secure Mr Li a visa. In response, the applicant stated that she has no idea why documents were altered to show that she and Mr Li resided at the Botany address, but that the relationship did exist. She stated that if he was not her boyfriend, she would not have spent the money to purchase a property so she could live closer to him. She stated that her failure to check the documents was due to her negligence.
The Tribunal observed that she and Mr Li had not jointly purchased a property but had purchased separate properties that happened to be in the same building, which does not necessarily prove that they were in a de facto relationship. The applicant stated that when she met Mr Li’s parents, she noticed that their condition was better than hers and her family did not want her to be at a lower level and so they assisted her to buy property in the same building. She stated that she and Mr Li went to the real estate agent together. The Tribunal observed that she had indicated in her statement that Mr Li wanted to break off the relationship in February 2017 and moved to a different address, which was prior to the purchase of the properties. In response, the applicant stated that while that was true, she was still trying to “recover” the relationship; he went back to her and they were together, and then they separated and she bought the property in an attempt to continue the relationship.
Consideration
The Tribunal has carefully considered all the evidence before it but does not accept, for the following reasons, that the applicant was in a de facto relationship with Mr Li as claimed. The Tribunal considers that the applicant gave, or caused to be given, information in her application form (and as part of her application) that was incorrect. It also considers that the applicant has given, or caused to be given, documents in relation to the visa application that were bogus.
The applicant claims to have commenced a relationship with Mr Li in February 2015 and to have resided together until December 2016 at North Strathfield. In her Subclass 485 visa application, lodged on 31 July 2015 (some five months after the applicant claims to have commenced a relationship with Mr Li), the applicant did not declare Mr Li as a partner and/or dependent and indicated that she was ‘not married’. The Tribunal considers the applicant’s explanation that her agent had only asked her whether she was married or not married and did not inform her of any other choices to be unsatisfactory because, if the applicant was in a de facto relationship with Mr Li at the time, she would have likely informed the agent of her relationship status and would have sought advice about whether she needed to declare it in her application.
In his student visa application, lodged in May 2015, Mr Li had not indicated that he was in a de facto relationship and, significantly, he used an address in Ultimo, which was different to the address the applicant claimed they had resided at in the Subclass 189 visa application. The Ultimo address was also found to be the official address of one of Mr Li’s documents provided with the Subclass 189 visa application, which had been altered to show Shipley St, North Strathfield. The applicant was unable to provide a plausible explanation for why Mr Li had indicated he was residing in Ultimo in May 2015. She suggested that the Ultimo address was on Mr Li’s bank statement because it was his previous address. However, if it was the case that Mr Li had not yet updated his address with the bank, this does not explain why that document (which was provided with the Subclass 189 visa application) was altered to the Shipley St, North Strathfield address. The Tribunal considers that the letter from the landlord attesting to the applicant’s and Mr Li’s relationship and their joint residence at Shipley St to be unreliable as it is inconsistent with other evidence indicating that Mr Li was residing at Ultimo. The Tribunal considers that Mr Li had been residing at Ultimo and not at Shipley St, North Strathfield as claimed, and finds that the documents were deliberately altered (and landlord statement contrived) for the purpose of including Mr Li in the applicant’s permanent residence visa application.
The application form for the Subclass 189 visa, which was lodged on 15 June 2016, indicated that the applicant and Mr Li were residing at Rancom St, Botany. Documents were also provided with the visa application suggesting that the applicant and Mr Li resided at that address. As noted above, examination of the documents indicated that the address on those documents (listed above) had been altered. The applicant has also given evidence that she had never resided at the Botany address. On this basis, the Tribunal finds that the applicant and Mr Li had never resided together at Rancom St, Botany as claimed in the visa application.
In her evidence to the Tribunal, the applicant indicated that she and Mr Li had resided in Queen St, North Strathfield from about February/April 2016 until December 2016. While the applicant has provided documents in her name indicating that she had resided at Shipley Ave and Queen St, North Strathfield in 2015 and 2016, there is limited reliable evidence before the Tribunal which suggests that Mr Li had ever lived at those addresses with the applicant. The Tribunal is not satisfied that the applicant and Mr Li had resided together at Shipley St or Queen St, North Strathfield, as claimed.
The Tribunal does not accept that the applicant purchasing a property (an apartment) in the same building that Mr Li purchased his apartment proves that the applicant and Mr Li were in a de facto relationship. While the Tribunal accepts that the applicant and Mr Li are known to each other, had visited a real estate agent together and had purchased apartments in the same building, this does not establish that the parties were in a de facto relationship.
The Tribunal also considers that the applicant’s inability to recall the names of Mr Li’s parents is further evidence that she was not in a de facto relationship with Mr Li. The Tribunal does not consider credible that the applicant could not recall the names because it was a long time ago or because she stayed in a hotel when she went to visit them because the atmosphere was not good. The Tribunal considers that if the applicant and Mr Li were in a genuine de facto relationship for over 18 months as claimed, and the applicant had visited his parents in China, then the applicant would have been able to recall with ease the names of Mr Li’s parents. The Tribunal does not accept that the applicant visited Mr Li’s parents in China.
There is limited genuine, reliable, and contemporaneous evidence before the Tribunal which supports the applicant’s claim that she and Mr Li were in a de facto relationship for the period claimed. Documents provided with the visa application as evidence of the applicant and Mr Li’s cohabitation were found to have been altered, and other documents provided, such as the letter from the landlord of Shipley Ave, North Strathfield, and the lease document for Rancom St, Botany, contained information that was inconsistent with other evidence before the Tribunal. There is limited evidence that the applicant and Mr Li had pooled financial resources, shared expenses or had joint assets or liabilities. There is also limited evidence that the applicant and Mr Li had represented themselves as a couple socially or that they had a mutual commitment to one another and considered the relationship to be a long term one.
The Tribunal has also had regard to the letter dated ‘November 2021’ from Yuchen Chen, the applicant’s current partner, in which he relevantly states that the applicant had told him about the breakup with her ex-boyfriend and that he honestly believes their relationship was genuine. The letter does not provide any other information or detail about the applicant’s claimed relationship with her ‘ex-boyfriend’ and it is not clear on what basis Mr Chen believes that the relationship was genuine.
The Tribunal has also had regard to the letter dated 16 November 2021 from Ms Gail Ye, the applicant’s manager, in which she relevantly states that in early 2018 the applicant told her about the break-up with her ex-boyfriend and that she could see that the applicant was upset, and she has no doubt that the relationship was genuine. The letter, in the Tribunal’s view, is lacking in substance and detail, and Ms Ye does not indicate on what basis she does not doubt the genuineness of the relationship.
Further to the above, the Tribunal does not consider that the letters from Mr Chen and Ms Ye overcome the cumulative concerns (as discussed above) about the applicant and Mr Li’s claimed de facto relationship. The Tribunal gives no weight to the assertions made in the letters from Mr Chen and Ms Ye, in as far as they seek to support the applicant’s claim to have been in a de facto relationship with Mr Li.
For all the above reasons, the Tribunal does not accept that the applicant and Mr Li were in a de facto relationship as claimed in the Subclass 189 visa application.
In considering whether there was non-compliance as described in the s 107 notice, the Tribunal makes the following findings.

Section 101(b) of the Act requires that no incorrect answers are given or provided in the application form. Further, s 99 of the Act provides that any information given, or caused to be given on the applicant’s behalf, in relation to the visa application is taken to be an answer in the application form.
Based on the above considerations, the Tribunal finds that incorrect information has been provided in the application about the applicant and Mr Li being in a a de facto relationship which commenced on 21 February 2015. The Tribunal also finds that incorrect information has been provided about the applicant and Mr Li’s residential addresses. On her own admission, the applicant has never resided at Rancom St, Botany and documents in the applicant’s name which indicated that she had resided at the Botany address were forensically examined and found to have been altered. The Tribunal accordingly finds that there has been non-compliance with s 101(b) of the Act.
Further to the above, the Tribunal finds that the above listed documents, namely the Vodafone bills and Commonwealth Bank statements, are bogus documents because the Tribunal reasonably suspects (based on information in the document examination report and the applicant’s evidence that she and Mr Li had not lived together at the Botany address) that those documents are counterfeit or have been altered by a person who does not have authority to do so: s 5(1)(b). As the documents were provided in relation to the Subclass 189 visa application, the Tribunal finds that there has been non-compliance with s 103 of the Act.
The Tribunal has considered the applicant’s evidence that she did not complete the application form or alter the address on the documents that were provided with the visa application. However, under s 98 of the Act an applicant who does not fill in their application form is taken to do so if they caused it to be filled in (or if it is otherwise filled in) on his or her behalf. In this case, the applicant gave evidence that she relied on Mr Li to lodge the skilled visa application and gave him the documents requested by the agent. The Tribunal considers that the applicant understood that a skilled visa application was being lodged on her behalf by an agent. In the circumstances, any information or documents provided on behalf of the applicant are taken to be the actions of the applicant.
The Tribunal has also considered the applicant’s evidence that she did not check the application and that she was not aware of what had been lodged on her behalf. Even if the Tribunal accepts that the incorrect information and bogus documents were provided by Mr Li and/or the agent, this does not assist the applicant in this case, because s 100 of the Act provides that 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.
For these reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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 as follows.
The correct information
The correct information is that the applicant and Mr Li were not in a de facto relationship which commenced on 21 February 2015 as claimed in the visa application. The Tribunal also finds that the applicant and Mr Li did not reside together at Rancom St, Botany as indicated in the visa application and supporting documents.
When the above was put to the applicant at the hearing, the applicant stated that she had not resided at the Botany address, but that she and Mr Li lived together in North Strathfield and the relationship was real.
As discussed in detail above, the evidence regarding Mr Li’s residential address was inconsistent, and in a previous visa application (lodged in May 2015), Mr Li had declared that he was residing in Ultimo and not at North Strathfield as the applicant has claimed. Furthermore, neither the applicant nor Mr Li had declared each other as partners in previously lodged applications (as discussed above).
The Tribunal has not accepted, for reasons discussed above, that the applicant and Mr Li were in a de facto relationship with one another. The Tribunal considers that incorrect information about the nature of the relationship was provided for the purpose of securing Mr Li a permanent visa. The Tribunal gives weight to this consideration in favour of cancelling the applicant’s visa.
The content of the genuine document (if any)
The documents identified in the s 107 notice (which the Tribunal has found to be bogus), are the Vodafone bills and Commonwealth Bank statements which were provided with the visa application as evidence of the applicant and Mr Li’s joint address at Rancom St, Botany. Forensic examination found that the addresses officially linked to those documents had been altered. The addresses officially linked to the stated documents were not Rancom St, Botany.
The applicant provided to the Tribunal copies of the original Commonwealth Bank statements for the same account (ending in 691) which showed Shipley Ave, North Strathfield for the statement dated from 4 December 2015 to 3 March 2016, and Queen St, North Strathfield for the statement from 4 March 2016 to 3 June 2016. This is consistent with the information found by the forensic examination regarding the addresses that were officially linked to these documents. At the hearing, the applicant also gave evidence that she had never lived at Rancom St, Botany.
The Tribunal considers that the bogus documents were provided as evidence of the applicant and Mr Li’s claimed de facto relationship (which the Tribunal has found did not exist) for the purpose of securing Mr Li a permanent residence visa. The Tribunal 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 applicant submitted that it was not necessary for her to alter any of the documents as she had passed the English test and met the requirements for the Subclass 189 visa.
The Tribunal acknowledges that the applicant did not need to rely on Mr Li to satisfy the requirements for the Subclass 189 visa (points tested stream) as she had sufficient points based on her age, skills, English and qualifications to be eligible for the visa. However, for the applicant to satisfy all the requirements for the grant of the visa, she also had to satisfy all the applicable public interest criteria, including PIC 4020.
The Tribunal considers that the decision to grant the applicant (and Mr Li) a Subclass 189 visa was based on the delegate’s satisfaction that the requirements in PIC 4020 had been met by the primary visa applicant and each member of the family unit who is an applicant for the Subclass 189 visa: cl 189.211. PIC 4020(1) requires that there be no evidence before the Minister that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.
Had the delegate become aware that a bogus document or false or misleading information in a material particular was provided in relation to the Subclass 189 visa, this would have attracted the operation of PIC 4020 and the application would have been the subject of further assessment by the delegate. This may have affected the outcome of the visa application, and the applicant may not have been granted the Subclass 189 visa. The Tribunal considers that the decision to grant the visa was based, in part, on incorrect information and bogus documents. The Tribunal 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 incorrect information and bogus documents were provided with the Subclass 189 visa application, which was lodged with the Department on 15 June 2016.
The applicant gave evidence that prior to the lodgement of the visa application she was quite busy with work and had to do night shifts. She passed the English language test and became eligible to apply for the Subclass 189 visa. She stated that Mr Li knew an agent who could assist them in lodging the visa application. She stated that she provided all the documents that had been requested to Mr Li and did not think much about the application after that. The applicant stated that she did not think that they (Mr Li and the agent) would alter the documents. When asked if she had made any effort to check the accuracy of the visa application form and the documents that had been submitted with the visa application, the applicant stated that she had not. She stated that she did not know that she could check the application or that she could even go online to check what had been lodged. She stated that she gave all the documents to Mr Li and he took care of the application.
While the Tribunal is prepared to accept the applicant had relied on Mr Li and the agent to lodge the visa application on her behalf, and that she was not directly involved with altering the documents or completing the application form, the Tribunal nevertheless considers that it was the applicant’s responsibility (as the primary applicant for the visa) to ensure that the information being lodged on her behalf was accurate and the documents provided were genuine.
The Tribunal gives limited weight to the applicant’s claim that she did not know she could check the application. The applicant was aware that a skilled permanent residence visa application was being prepared and would be lodged on her behalf (with the assistance of Mr Li) by an agent, and the Tribunal considers that she could have made efforts to check the accuracy of the application. On her own evidence, the applicant admits to her negligence in not checking the documents.
The applicant appears to have handed over the responsibility of her skilled visa application to Mr Li (and the agent) and the Tribunal considers that she made little (if any) effort to check the accuracy of the information provided. For these reasons. the Tribunal gives limited weight to this consideration in favour of not cancelling the visa.
The present circumstances of the visa holder

100. The applicant arrived in Australia on 3 September 2012 as the holder of a student visa, and completed qualifications in accounting. She applied for, and was granted, a Temporary Skilled (Provisional) Subclass 485 visa in August 2015. She was subsequently granted the Skilled Independent Subclass 189 visa, which is the subject of this review, on 21 September 2016.
101. In her statement to the Tribunal, the applicant stated that she is currently in a relationship with Mr Yuchen Chen. She first met Mr Chen in May 2020 through a friend, and they commenced living together in July 2020. The Tribunal recently received evidence that the applicant and Mr Chen married on 10 December 2021. The evidence included a marriage certificate and photograph.
102. The applicant gave evidence that her current partner, Mr Chen, is a permanent resident of Australia. He is also a citizen of China. The Tribunal asked the applicant whether, if her visa remains cancelled, Mr Chen would sponsor her for a partner visa. In response, the applicant said that he would sponsor her and that they have discussed this as he wants her to stay with him in Australia.
103. The applicant gave evidence that her parents currently reside in China. Her mother is retired, and her father works in the taxation office. She does not have any siblings.
104. The applicant gave evidence that she has been in Australia for over nine years. She studied in Australia, is currently working and she and Mr Chen are living together in Macquarie Park. She also stated that she adopted a pet cat, which she has had for seven years. In her post hearing statement, the applicant stated that the cat was too old and if she leaves Australia, no one will be able to look after her cat. The applicant provided a photograph of herself with her pet cat.
105. The applicant has also provided evidence of her ownership of an apartment at Olympic Park, including a property title search and council rates notice. The Tribunal accepts that the applicant owns property in Australia.
106. The Tribunal has also had regard to the employment reference letter, dated 16 November 2021, from the Manager of Foxconn Australia (Ms Ye), confirming that the applicant has been employed with the company since September 2015 and that she is a hard working and valuable employee. The Tribunal accepts that the applicant is employed in Australia and that she is regarded by her employer as a valuable employee.
107. The Tribunal accepts that the applicant has lived in Australia for over nine and a half years, and that during that time she has established emotional, social, financial and employment ties in Australia. The Tribunal also accepts that the applicant has married Mr Chen, whom she stated is an Australian permanent resident. On this basis, the Tribunal also accepts that the applicant has established family ties to Australia.
108. The Tribunal considers that the applicant’s current circumstances weigh in favour of not cancelling the visa. However, this consideration must be balanced against other factors to which the Tribunal must have regard.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
109. The delegate was concerned that the applicant had not responded to the s 107 notice and had not provided the correct information as required under Subdivision C of Division 3 of Part 2 of the Act. However, as noted above, the Tribunal accepts that the applicant did not receive the s 107 notice as it was sent to an email address to which she did not have access. This consideration weighs neither in favour of nor against cancellation.
Any other instances of non-compliance by the visa holder known to the Minister
110. The Tribunal is not aware of any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
111. The non-compliance occurred when the visa application was lodged, on 15 June 2016. Over five and a half years have passed since the non-compliance, which the Tribunal does not consider to be a particularly long time. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
112. There is no evidence before the Tribunal which indicates any breaches of the law since the non-compliance. The Tribunal gives this consideration some weight, albeit limited, in favour of not cancelling the visa.
Any contribution made by the holder to the community
113. The applicant gave evidence that in addition to her employment, she had also worked as a volunteer to protect the environment. In her post hearing statement, the applicant provided the name of an Australian organisation (Nature is Speaking) that she undertook volunteer work with.
114. The applicant also gave evidence at the hearing that she goes to church with Mr Chen. When asked which church she attended, the applicant said a Catholic church, but she could not recall the name. She stated that the church was near Macquarie Park and they drive there. She gave evidence that they have not attended church since the lockdown. When asked if she had been involved in any community work with the church, the applicant stated that she attended and gave money.
115. 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
116. The applicant gave evidence at the hearing that Mr Li had informed her that his visa had been cancelled because her visa had been cancelled. The Tribunal accepts that the Subclass 189 visa granted to Mr Li (on the basis of his claim to be a member of the family unit of the applicant) may be consequentially cancelled under s 140 of the Act if the applicant’s visa is cancelled.
117. However, having found that the relationship between the applicant and Mr Li was not a genuine de facto relationship as claimed, the Tribunal gives no weight to this consideration in favour of not cancelling the visa.
Whether there are children whose interests would be affected by cancellation
118. There are no children whose interests would be affected by the cancellation of the applicant’s visa. This consideration weighs neither in favour of nor against cancellation.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
119. The applicant has not claimed that cancellation of her visa would lead to a breach of Australia’s non-refoulement obligations. At the hearing, the Tribunal asked the applicant if there was any reason (by reference to Australia’s non-refoulment obligations) she could not return to China. In response, she stated there was no reason she could not return. The applicant has not claimed in her written or oral evidence that she could not return to China due to her church attendance in Australia.
120. In her post hearing statement, the applicant stated that if her visa is cancelled, she and her husband (Mr Yuchen Chen) would be separated. The Tribunal notes that cancellation of the applicant’s visa would not necessarily lead to the applicant’s removal and separation from Mr Chen.
121. Having regard to the applicant’s evidence that Mr Chen is a permanent resident, the applicant may be eligible to apply for a partner visa (either onshore or offshore) on the basis of her relationship with Mr Chen. If the applicant applies for the partner visa in Australia, she will be able to remain in Australia until the determination of that application. If the applicant applies for the partner visa offshore, then Mr Chen (who is also a citizen of China) could, if he so wished, travel to China to be with the applicant until her visa application has been processed. The Tribunal also considers that if the applicant returns to China to lodge her visa application and if Mr Chen is unable to travel to be with her, then any physical separation between them would only be temporary, i.e., for the duration of the visa processing time. The Tribunal does not consider that the cancellation would lead to Australia breaching family unity obligations. The Tribunal gives this consideration limited weight in favour of not 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

122. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if she does not depart Australia within the validity of any bridging visa she currently holds or if she is not granted another visa to remain in Australia. If the visa is cancelled, the applicant will be affected by s 48 of the Act, which limits the types of visas she can apply for onshore. The applicant may also be subject to an exclusion period in relation to future temporary visa applications.
123. The Tribunal notes, however, that a partner visa is one of the specified visas that can be applied for onshore (i.e., it is not affected by s 48). Given the applicant’s evidence that Mr Chen is a permanent resident, the applicant may be eligible to apply for a partner visa onshore. It is also open for the applicant to apply for the partner visa from offshore.
124. The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation. However, the applicant may still be eligible to apply for a partner visa on the basis of her relationship with an Australian permanent resident. For these reasons the Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
125. When asked about the hardship that she may experience if the visa is cancelled, the applicant stated that she has been in Australia for almost 10 years, she has adapted to Australia and has a job. If she returns to China, she will have start from the beginning. She stated that she does not want to be separated from Mr Chen. She stated that she also has to think about what to do with her pet cat. The applicant stated that she may have to sell her property. The Tribunal remarked that she had earlier indicated that Mr Chen would be willing to sponsor her for a partner visa. The applicant confirmed that this was the case, but she would still prefer to depend on herself.
126. In her post hearing statement, the applicant further stated that if her visa is cancelled, she would have to separate from her husband whom she has lived with since July 2020. She stated that her pet cat is too old and there will be no one to look after the cat if she leaves Australia. The applicant further stated that she has been working as an accountant since 2015 and is currently paying $4,000 every month towards the mortgage for her property at Sydney Olympic Park. The applicant stated that, if her visa is cancelled, she will lose her job and it will be difficult for her to find a job in China as the accounting standards are quite different from those in Australia. She stated that she may not be able to afford the mortgage and will have no choice but to sell the apartment at short notice.
127. The Tribunal has considered the applicant’s evidence and accepts that the applicant has established herself in Australia, where she has friends, employment, property, and a pet cat. The Tribunal accepts that if the applicant’s visa is cancelled, and the applicant has to return to China, then this is likely to cause emotional and financial hardship for the applicant. The Tribunal also accepts that if the applicant is unable to remain in Australia, she will not be able to continue her employment as an accountant and it also accepts that the applicant may face challenges securing suitable employment in China. The Tribunal also accepts that the applicant may have difficulty rehoming her pet cat and may have to sell her property if she cannot maintain the mortgage repayments. The Tribunal accepts that if the applicant returns to China, she would be physically separated from Mr Chen, whom she has now married.
128. The Tribunal accepts that hardship may be caused to the applicant and Mr Chen if the applicant’s visa is cancelled, and she has to return to China. However, as discussed above, the applicant may be eligible to apply for a partner visa in Australia on the basis of her relationship with Mr Chen. Nevertheless, the Tribunal acknowledges the hardship that may be experienced if the applicant’s visa is cancelled and she has to return to China. The Tribunal gives this consideration some weight in favour of not cancelling the visa.
Conclusion
129. The Tribunal has carefully considered all the evidence before it and has weighed up the circumstances in favour of not cancelling the visa against those in favour of cancelling the applicant’s visa.
130. The Tribunal accepts that the applicant’s present circumstances and the hardship that may be experienced if the visa is cancelled and she has to return to China weigh in favour of not cancelling the applicant’s visa. The Tribunal has also given some favourable weight to the applicant’s contribution to the community, including her employment. However, the Tribunal considers that these factors are outweighed by the circumstances in favour of cancellation. In this case, information was provided with the visa application which was incorrect, and documents were provided which were bogus, which led to the applicant and Mr Li (whom the Tribunal found was not in a de facto relationship with the applicant) being granted permanent residence visas. Had the Department been aware of the incorrect information and bogus documents, Mr Li would not have been granted the visa. The applicant may have also not been granted the visa had the Department been aware that false or misleading information or bogus documents were provided in relation to the visa application. Notwithstanding the applicant’s claim that she relied on Mr Li and the agent to lodge the visa application and was not involved in the fraudulent conduct, the Tribunal considers that the applicant made little effort to check the accuracy or otherwise of the information and documents being provided with the application. These factors, in combination, weigh strongly in favour of cancelling the applicant’s visa. The Tribunal further notes that the applicant has the option of applying for an Australian visa on the basis of her relationship with Mr Chen, whom she stated is a permanent resident and is willing to sponsor her.
131. 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
132. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 - Skilled - Independent visa.
R. Skaros
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 978

25 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice