Li (Migration)

[2021] AATA 4473

Li (Migration) [2021] AATA 4473 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shijin Li

CASE NUMBER:  2111028

HOME AFFAIRS REFERENCE(S):          BCC2020/675135

MEMBER:Kira Raif

DATE:3 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 03 November 2021 at 2:19pm

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled - Independent – incorrect information in the visa application – residential address fraudulently altered – de facto relationship ceased soon after visa grant – partner conceived a child with another person – employment – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 101-105, 107, 109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4020; r 2.41

CASES

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 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in November 1991. She was granted the Class SI Skilled Independent visa on 18 October 2017. In July 2021 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 ss 101 and 103 of the Act. The applicant provided a response and her visa was cancelled in August 2021. The applicant seeks review of the delegate’s decision.

3. On 8 October 2021  the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 November 2021. On 29 October 2021 the applicant informed the Tribunal through her representative Mr Levingston that she wished the Tribunal to make the decision ‘on the papers’. On the same day the representative confirmed that the matter has been set down for hearing and on 3 November 2021 Mr Levingston advised the Tribunal that the applicant did not wish to attend the hearing to give oral evidence. The applicant consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the Notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

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

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

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with ss.101 and 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Class SI Skilled Independent visa on 13 March 2017 and in that application the applicant indicated on the application form that she was in a de facto relationship from 9 March 2016. The applicant referred to Mr Lijia Pei as her de facto partner and a member of her family unit. The applicant gave her residential address as Pennant Hills and declared that the information provided on the form and in any attachments was complete and correct in every detail.

10. The applicant presented a number of documents in support of her claimed relationship with Mr Pei. These included Vodaphone phone bills in her name addressed to the Pennant Hills address for the periods from May to June 2016 and from October to November 2016. The applicant and Mr Pei were granted the Skilled visas in October 2017.

11. Following the grant of the visas, the Department conducted a forensic examination of the phone bills and determined that the residential address shown on these documents did not match the residential address officially linked and registered to these documents. The delegate concluded that the phone bills were bogus documents.

12. The primary decision record also indicates that in her application for the Australian citizenship lodged in January 2019, the applicant stated that she resided in Sydney from December 2015 to October 2016 and at Mascot from October 2016 to February 2018. This contradicts the information provided in the Skilled visa application where the applicant claimed to have been living with Mr Pei at Pennant Hills. It is also noted that Mr Pei had made other applications to the Department in which he claimed that he has a child born in July 2017 with his current spouse. It would suggest that the child was conceived at the time when the applicant claimed to have been in a de facto relationship with Mr Pei. The child’s birth certificate indicates that Mr Pei was living at Carlingford in October 2017, prior to the Skilled visa being granted.

13. In her response to the NOICC the applicant chose not to provide evidence that may be self-incriminating. The applicant did not offer any further explanations to the Tribunal. As the applicant declined the invitation to appear before the Tribunal to give evidence and present arguments, the Tribunal was denied the opportunity to question the applicant about the circumstances of her claimed relationship with Mr Pei.

14. The Tribunal has had regard to the information in the primary decision record. It indicates that in her dealings with the Department, the applicant gave her residential addresses that were inconsistent with the addresses she mentioned in the Skilled visa application. In the Tribunal’s view, that indicates that the applicant did not live with Mr Pei at the address specified in the Skilled visa application.  It is also significant, in the Tribunal’s view, that Mr Pei’s child was born in July 2017 (and therefore conceived around October 2016). The application for the Skilled visa was made in March 2017. In the Tribunal’s view, the fact that  Mr Pei conceived a child with another person offers strong evidence that any relationship he claims to have had with the applicant was not mutually committed and not to the exclusion of all others, as required by the statutory definition of de facto partner. The Tribunal acknowledges that a sexual relationship with another person does not necessarily mean that the relationship between the applicant and Mr Pei could not have been genuine and exclusive but here the existence of the child, together with the fact that the applicant provided incorrect addresses and bogus documents, does raise questions about the nature of the applicant’s relationship with Mr Pei and the applicant’s credibility overall.

15. The Tribunal finds that the applicant gave incorrect addresses on the Skilled visa application form because she did not live at the address specified on that form and also because she had completed a declaration that all answers on the form were complete and correct in every detail. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that there was non-compliance with s. 101 of the Act. The Tribunal further finds, having regard to the information in the primary decision record, that phone bills provided by the applicant with her Skilled visa application are bogus documents because they had been altered by a person without authority. The Tribunal finds that the applicant gave bogus documents with her visa application and that there was non-compliance with s. 103 of the Act. For these reasons, the Tribunal finds that there was non-compliance with ss. 101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

16. 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).

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

    The correct information

18. The correct information would not indicate that the applicant lived at the addresses specified on the application form. It is also very likely, in the Tribunal’s view, that the applicant did not have a de facto relationship with Mr Pei but the Tribunal is unable to make a positive determination on the limited evidence before it.

    The content of the genuine document (if any)

19. The Tribunal has formed the view that the phone bills were bogus documents as they had been altered by a person with no authority. The Tribunal finds that the genuine documents would not show the addresses that did appear on the presented phone bills.

    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

20. The decision to grant the visas to both the applicant and her claimed de facto spouse was based on the presented document which included evidence of the relationship and evidence of cohabitation (such as bills sent to the same address and the nomination of the common address). The Tribunal has found that the phone bills were bogus documents and that the information about the applicant’s residential address was incorrect. If this was known to the decision-maker, it would have been necessary to consider whether the applicants met PIC 4020. The evidence of the relationship was also relevant to the assessment whether the secondary applicant was a de facto partner and a member of the family unit of the primary visa applicant. The Tribunal finds that the decision to grant the visa was based, in part, on bogus documents and incorrect information.

    The circumstances in which the non-compliance occurred

21. The applicant has not presented evidence explaining the circumstances in which the non-compliance occurred. The Tribunal is unable to make any finding in relation to this issue.

    The present circumstances of the visa holder

22. In her response to the NOICC the applicant refers to her employment. The applicant presented no updated evidence to the Tribunal concerning her present circumstances and the Tribunal is unable to make any findings in relation to the applicant’s present circumstances on the basis of the very limited evidence before it.

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

23. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

25. The application for the visa was made in March 2017 and approximately four and a half years passed since the non-compliance. In the Tribunal’s view, that is not a significant period of time.

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

26. There are no known breaches of the law and the applicant claims in her response to the NOICC that she had complied with various laws.

    Any contribution made by the holder to the community.

27. The applicant claims in her response to the NOICC that she contributes to the community through her employment and by providing pro bono translating service in the community. The Tribunal is prepared to accept that evidence.

28. 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 Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s.140.

29. The visa held by Mr Pei may be subject to a consequential cancellation. The Tribunal has no information about his present circumstances.

    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.

30. The applicant presented no evidence in relation to the children whose best interests may be affected by the cancellation. The Tribunal acknowledges that Mr Pei has a child but there is no evidence before the Tribunal concerning this child’s circumstances (such as place of residence and visa status) and interests and on the evidence before it, the Tribunal cannot conclude that this child’s interests would be affected by the consequential cancellation. On the very limited evidence before it, the Tribunal concludes that there are no children whose interests would be adversely affected by the cancellation or consequential cancellation.

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

31. There is no evidence before the Tribunal, and the applicant does not claim, that Australia’s non-refoulement obligations are engaged in this case. There is no information before the Tribunal concerning the applicant’s family. On the limited evidence before it, the Tribunal does not consider that the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations or family unity obligations.

    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.

32. 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 applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore.

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

33. The applicant has not raised any other matters and has not explained what hardship, if any, would be caused by the cancellation. 

34. The Tribunal has formed the view that the applicant did not comply with s. 101 and 103 of the Act and there are grounds for cancelling her visa. 

35. The Tribunal is unable to make any findings in relation to many of the discretionary aspects, due to the very limited evidence that has been provided by the applicant to the delegate and the Tribunal. On the limited evidence before it, the Tribunal has concluded that there are no children whose best interests would be adversely affected by the cancellation and the Tribunal is not satisfied that hardship would be caused to the applicant and others by the cancellation. The Tribunal acknowledges that the applicant had been working in Australia and may have contributed to the community through her employment. The Tribunal also acknowledges that the applicant has been living in Australia for several years and may have formed ties to this country. It would have assisted the Tribunal to have some evidence from the applicant concerning these and other matters, as well as information about her present circumstances.

36. In the absence of evidence from the applicant concerning her present circumstances and the potential effect of the visa cancellation, the Tribunal has decided to place greater weight on the fact that the decision to grant the visa was based, in part, on incorrect information.

37. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member