Lian (Migration)

[2021] AATA 5221

Lian (Migration) [2021] AATA 5221 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jianbin Lian

CASE NUMBER:  2108942

HOME AFFAIRS REFERENCE(S):          BCC2019/2583532

MEMBER:Kira Raif

DATE:19 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 19 October 2021 at 5:56pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – ground for cancellation – incorrect information in visa application – genuine de facto relationship – different addresses – did not share financial resources – bogus document – phone bills – consideration of discretion – visa grant not based on incorrect information – employment in a highly skilled occupation – considerable hardship – settlement in Australia – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

Migration Regulations 1994 (Cth), 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 June 1989. He was granted the Skilled Independent Subclass 189 visa in October 2015. In June 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 his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

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

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

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

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

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

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled Independent visa on 12 August 2015. The application included Ms Cheng Huang as a dependent applicant. The applicant claimed in that application that he and Ms Huang met in January 2013 and commenced a de facto relationship in October 2013. On the application form the applicant identified Ms Cheng Huang as a de facto partner and stated that the relationship began on 10 October 2013. The applicant also completed a declaration stating that all the information provided on the form was complete and correct.

11. In support of the claimed relationship the applicant presented with his application a number of documents. These included Commonwealth Bank records in his name for the period from April 2014 to September 2015 addressed to his address at Rivervale, WA and several Vodaphone bills in his name, and in Ms Huang’s name, also addressed to the same address at Rivervale, WA.

12. The applicant and Ms Huang were granted the Skilled visas on 15 October 2015. The primary decision record indicates that following the visa grant, the Department conducted an examination of the phone bills. It was established that the residential addresses shown on the Vodaphone bills did not match the residential addresses officially linked and registered to these documents and the true address for the correspondence was at Bentley, WA.

13. The primary decision record indicates that in the statement provided with the application, the applicant stated that in October 2013 Ms Huang moved to his address at Rivervale and they began a de facto relationship. However, it is noted in that in her Incoming Passenger Card (IPC) completed in January 2014, Mr Cheng Huang declared her intended address at Manning WA and her contact person was another person. In her IPCs dated June 2015 and July 2016 Ms Huang declared her addresses as an address at Bentley WA and another person as a contact person in Australia and the visa applicant was never mentioned as a contact person. The delegate notes that Ms Huang travelled extensively in China on her own and there is no evidence of the applicant and Ms Huang travelling overseas together.

14. The primary decision record indicates that the applicant made an application for the Australian citizenship in Mach 2019 and in response to the natural justice letter outlining the above information, the applicant withdrew that application.

15. In April 2019 the applicant sponsored his parents for a Parent visa and completed the sponsorship form 40SP. In that form, the applicant claimed that he was never married or in a de facto relationship.

16. The primary decision record indicates that Ms Huang also made an application for the Australian citizenship in July 2017. In response to a natural justice letter Ms Huang claimed her relationship with the applicant was genuine, as confirmed by third parties, and that the documentation was not prepared by her. Ms Huang stated that she bought a property at Bentley but did not notify the applicant at the time of the property purchase.

17. In his response to the NOICC the applicant stated that he was in a relationship with Ms Huang but was not aware of the documents that were submitted with the application as these were prepared by Ms Huang and their agent.

18. The applicant provided a large volume of documents to the Tribunal on 18 October 2021, one day before the scheduled hearing. No explanation is offered by the applicant or his representative Mr Jia LI for the late submission of documents and the non-compliance with paragraph 5.1 of the Tribunal’s Practice Directions.

19. In his declaration sworn on 17 October 2021 the applicant states that he did have a de facto relationship with Ms Cheng between October 2013 and September 2016 and that he provided only genuine documents to his previous agent and did not know what the agent had submitted in his application. The applicant states that he met Cheng through work in October 2013 and started socialising and their relationship got closer. They commenced a relationship from late 2013 and he started to introduce Cheng as his girlfriend. The applicant claims they began to live together from January 2014 and although Cheng had another room near her workplace, she spent most of the time in his apartment. The applicant describes their daily activities and aspects of the relationship such as financial and social aspects, joint travel and other aspects. The applicant states that he planned to propose to Cheng once he was granted the visa and obtained a job. The applicant states that shortly after visa grant, Cheng returned to China as her mother was ill but they maintained a relationship through WeChat. In February 2016 he bought a house and planned to ‘move the relationship forward’, after her return to China. The applicant states that Cheng wanted to move to Sydney for better career prospects but he had already found a job and bought a house in Perth and was not ready to give up his achievements. They decided it would be hard to maintain a long distance relationship and they separated.

20. The applicant claims that he did not know Cheng bought a house a Riverdale during their residence together until he received the NOICC. He believes she had been honest with him. With respect to his sponsorship of his parents, the applicant states that he did not get a chance to look at the form and only answered the questions from his agent, who helped whim with the form. The applicant stated that he was ‘single’, which was correct at the time, and had no chance to clarify if he had been in a de facto relationship before.

21. In oral evidence, the applicant told the Tribunal that he submitted all the genuine information and genuine documents and had not amended anything. He relied on the agent to submit his application and did not know what the agent had submitted. The applicant clams that Cheng was the primary contact with the agent and he had very limited contact with the migration agent. All documents were handled by Cheng. The applicant states that he signed the form but had not looked at the application before it was submitted and it is not his email address appearing on the form, so he did not receive any documents directly from the Department. The applicant stated that he believes Cheng prepared original documents to the agent.

22. The applicant claims that he did not write the ‘love story’ and only saw the document after he received the NOICC. The applicant states that the information in that statement is not correct but he had no involvement in that statement. The applicant stated that he had limited contact with Cheng after receiving the NOICC but she was not willing to talk to him about this case.

23. The applicant states that he did not know what Ms Huang put on her IPCs and could not comment why she put a different address and a different contact person and it was beyond his control. The Tribunal acknowledges that this is so but considers Ms Huang’s nomination of a different address to be strong evidence that the couple were not living together. Similarly, the fact that  Ms Huang’s genuine phone bills had a different address indicates, in the Tribunal’s view, that the couple did not live together at the claimed address. The Tribunal also considers that Ms Huang’s nomination of a different person as her contact person on the IPC’s to be evidence that she did not consider the applicant to be her de facto partner.

24. With respect to the property purchase, the applicant agrees that he did not know about Cheng’s purchase but states that he believed they were honest with each other. The applicant confirmed he bought a property in 2016 on his own. He claims he considered it as a gift to Cheng for their future marriage. In the Tribunal’s view, the fact that both the applicant and Ms Huang bought properties independently of each other while they claimed to be in a de facto relationship (and Ms Huang did not inform the applicant of the purchase) is a strong indication that they did not share their financial arrangements. The Tribunal acknowledges the applicant’s evidence that the property he purchased matched Cheng’s ‘wish list’ and he thought it would be a surprise for her but the Tribunal is concerned that such significant purchases and long-term mortgage commitments would be made without the involvement of the other partner.

25. With respect to the information on the sponsorship form, the applicant states that he has been single since he broke up with Ms Huang and put ‘single’ on the Chinese version of the form as he believed he did not have the opportunity to expand on that information. The applicant stated that the other available answers on the form were not suitable for him (he submits ‘separated’ only refers to a married couple and he was never married) and he gave an answer that most closely reflected his circumstances. He did not intend to mislead.

26. The applicant provided examples of relying on Ms Huang emotionally and sharing secrets and supporting each other. The Tribunal is prepared to accept that such reliance occurred. The applicant submits that Ms Huang did not need the applicant to gain permanent residence, given her education and experience, and that permanent residence was not of such importance to her, as she let the visa expire. There was thus no reason for them to lie about the relationship. The applicant submits that he entered the relationship with goodwill and believed there was a genuine de facto relationship, whatever Ms Huang believed.

27. The Tribunal acknowledges the evidence of the relationship that was submitted with the primary application and additional evidence that is before the present Tribunal. In particular, the Tribunal acknowledges the evidence of third parties and other evidence concerning the social aspects of the relationship. The Tribunal also acknowledges the applicant’s written and oral evidence to the Tribunal concerning his relationship with Ms Cheng Huang. It appears to the Tribunal that there was some relationship between them but the Tribunal is not satisfied it was of a nature described because, for example, the Tribunal is not satisfied there was the cohabitation as described by the applicant (given the different addresses on Ms Huang’s IPCs and phone bills) and the Tribunal is not satisfied they had shared their financial resources (as evidenced by the separate purchases of properties). In the Tribunal’s view, if all of the above information was before the delegate, it is possible (and likely) that the delegate would have concluded that the applicant and sponsor were not in a de facto relationship, as claimed. However, for the purpose of the present review, the Tribunal is unable to make a positive finding that there was never a de facto relationship between them. There is independent evidence of the relationship the veracity of which has not been undermined and there are aspects of the applicant’s claims that appear to be truthful. In the Tribunal’s view, and having regard to the serious consequences attached to a visa cancellation, the Tribunal is unable to make a positive finding that there was non-compliance with s. 101 of the Act.

28. The Tribunal finds that the Vodaphone phone bills submitted with the application were bogus documents because they had been altered by a person with no authority to do so. The Tribunal finds that the applicant had given bogus documents with his visa application, or caused such documents to be given or provided. The Tribunal finds there was non-compliance with s. 103 of the Act. For these reasons, the Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

29. 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).

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

    The correct information

31. The Tribunal considers it very likely that the de facto relationship was not as described by the applicant and, in particular, that the couple did not live together at the same address as claimed and did not share their financial resources.

    The content of the genuine document (if any)

32. Genuine phone bills would not show that the applicant and Ms Huang resided at the same address at Rivervale.

    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

33. The applicant claims that he cannot recall whether he relied on the de facto points and he did not need the de facto points and he did not believe he claimed the de facto points. The applicant’s representative confirmed that the applicant did not rely on the de facto points and the Skilled visa application form suggests that the applicant answered ‘no’ when asked if he relied on the de facto points. It would appear, therefore, that the decision to grant the visa was not based on the incorrect information and / or bogus document in relation to the applicant. This may not be the case in relation to Ms Huang.

    The circumstances in which the non-compliance occurred

34. The applicant explains in his response to the NOICC and to the Tribunal that Ms Huang and an agent had prepared the application. The applicant told the Tribunal that he gave only genuine documents to the agent and left the agent and Mg Huang to do the rest. The applicant states that he did not have a chance to read the forms and his email address was not provided in the application, so he did not receive anything.

35. The Tribunal does not accept that the applicant had no involvement in the application, as he would have been required to provide personal details for the application form, and personal documents such as identity documents. Importantly, the Tribunal is also of the view that the applicant had the obligation to read the form and the accompanying documents before the application was submitted to ensure the information in the application was correct and accurate. The applicant explains he was new to the process and relied on his de facto and the agent and did not intend to lie but in the Tribunal’s view, the applicant’s failure to take any steps to ensure the information was correct does indicate lack of probity on his part.

    The present circumstances of the visa holder

36. The applicant refers to his employment as a mining engineer and states that his skills are critical for his employer. The applicant states that he has been working honestly and paying taxes for the past five years. The Tribunal accepts that evidence.

37. The applicant states that he has two mortgaged properties and a car loan and he presented to the Tribunal evidence of these assets. The Tribunal accepts that evidence. The applicant states that even if he sells the properties in Australia, he may lose money and the funds from the sale of the properties would not be sufficient to buy a property in China due to the rise in property prices. The applicant states that he and his parents have sold properties in China and he is fully settled in Australia. His parents also intend to live with him in Australia and they would have nowhere to live if they cannot come to Australia.  

1. The applicant claims that it would be difficult for him to return to China, particularly as he must financially support his parents. The applicant states that he would not be able to find a job in the mining field in China considering the current job market, and all his efforts of studying in Australia would be wasted. The applicant states that he may not be able to obtain the same income in China to support himself and his parents. The applicant presented no evidence to support these assertions, no evidence of what jobs may be available to him, the income he may derive from such employment and the cost of living. Nor has he presented evidence of the value of his current assets. On the evidence before it, the Tribunal does not accept that the applicant would be able to find employment in China, whether it is the same employment as he has in Australia or different, and that he would be unable to support himself and his parents. Nevertheless, the Tribunal is prepared to accept that  due to the differences in industry practices between Australia and China, it may be difficult for the applicant to obtain the job in the same field, at least initially.

2. The applicant states that he has been living in Australia for over ten years and has developed strong connections to Australia and it would be difficult for him to adapt to work culture and lifestyle in China. The applicant states that his written Chinese is not that good. The Tribunal does not accept that it would be difficult for the applicant to adapt to life in China, given that he has spent the majority of his life in China, received some education there, is able to communicate and is well familiar with the lifestyle and social expectations there. However, the Tribunal accepts that the applicant has been living in Australia for several years and is prepared to accept that he has formed connections to Australia and that he prefers to remain in Australia. The Tribunal also accepts that if the applicant does not hold a visa, his parents are unlikely to be granted the Australian visas. The Tribunal accepts that considerable hardship would be caused to the applicant if his visa is cancelled and if he has to return to China as a result.

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

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

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

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

   The time that has elapsed since the non-compliance

5. The application was made in August 2015  and over six years passed since the non-compliance. The Tribunal considers this to be a reasonable period and acknowledges that  in that time the applicant has settled in Australia and has formed ties in this country.

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

6. There are no known breaches of the law.

   Any contribution made by the holder to the community.

7. The applicant provided to the Tribunal evidence of various donations and the Tribunal accepts that the applicant has made such donations and thereby contribute to the community. The Tribunal also accepts the applicant pays taxes through employment. The Tribunal also accepts that the applicant contributes through his employment.

8. 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.

9. The visa held by Ms Huang would be subject to a consequential cancellation. The primary decision record indicates that Ms Huang is offshore and that her vias has expired, so it would appear that her visa would not be subject to s. 140 cancellation.

   if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

10. There are no children who would be affected by the cancellation.

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

11. The applicant claims that he has only visited China infrequently and does not know what goes on there. The applicant states that ‘anything can happen’. The applicant states that somebody called his parents to check on his hukou registration but the Tribunal does not consider this event (if it occurred) gives rise to any protection obligations. Neither does the applicant’s vague and unparticularised claim that anything can happen. The applicant has not raised any other concerns and the Tribunal does not consider on the limited evidence before it that Australia’s protection obligations are engaged in this case. The Tribunal finds that the cancellation of the visa would not lead to the applicant’s removal in breach of Australia’s non-refoulement obligations.

12. The applicant’s parents and immediate family live in China. The applicant has no relatives in Australia. The principles of family unity would not be breached as a result of the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

13. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, he 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 he 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. If the applicant is no longer a permanent resident of Australia, he may be unable to sponsor his parents for Australian visas.

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

14. In his response to the NOICC the applicant states that he is employed as a mining engineer and his occupation is in demand, so that the cancellation of his visa would have an adverse impact on his employer. The applicant provided to the Tribunal evidence including statements relating to his employment and general information relating to the mining practices. The Tribunal accepts that the applicant works as a mining engineer and that the applicant is well regarded by his employer. The Tribunal also acknowledges the applicant’s evidence concerning skills shortage in his field. However, the applicant has not established that the nature of his position and the particular tasks he performs in the company are of such nature that these cannot be performed by another person, either now or in the future with appropriate training. The Tribunal is also of the view that  the company would have made appropriate arrangements for replacing its staff, as the applicant is under no obligation to work for that particular employer and there is always a possibility that he may choose to work elsewhere. The Tribunal is not satisfied on the evidence before it that the cancellation of the visa would have an adverse impact on the company. Even if that was the case, the Tribunal is mindful that the company can sponsor the applicant for an appropriate visa in the future (even if such an application is to be made offshore and if the applicant is subject to an exclusion period, which may in certain circumstances be waived).

15. The applicant provided to the Tribunal a number of character references and the Tribunal accepts that those who provided the references believe the applicant to be a good person.

16. The applicant refers to the length of time he has spent in Australia and his settlement in this country. The applicant outlines the hardship associated with finding employment and supporting his elderly parents. While the Tribunal has formed the view that  some of the applicant’s evidence has been exaggerated (such as his claim that  he would be unable to find employment in China), the Tribunal accepts that the length of the applicant’s stay in Australia, his settlement in Australia and his desire to support his parents would all be affected if the visa is cancelled and if the applicant is required to leave Australia. The Tribunal accepts that considerable hardship will be caused to the applicant and his family if the applicant is required to leave Australia as a result of the cancellation.

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found there was non-compliance with s. 103 of the Act and that there are grounds for cancelling the visa.

18. However, the Tribunal has decided that there are strong reasons why the visa should not be cancelled. The Tribunal places weight on the applicant’s employment in a highly skilled occupation and the contribution he makes through employment, as well as the statement of support from his employer. The Tribunal has formed the view that considerable hardship would be caused to the applicant and his parents if the visa is cancelled because of the applicant’s settlement in Australia, which includes employment, ownership of properties and other assets and other ties he has formed in this country. It is important, in the Tribunal’s view, that the decision to grant the visa does not appear to have been based on incorrect information and bogus documents. While Ms Huang would have been granted the visa, in part, on the basis of bogus documents, the applicant was not. It appears that the provision of bogus documents (and even if the Tribunal were to find there were incorrect answers on the applicant form), this does not appear to have been relevant to the decision to grant the visa to the applicant.

19. In light of these considerations, and having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

20. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif

    Senior Member