Liang (Migration)

Liang (Migration) [2024] AATA 365 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jing Liang
Ms Yuning Wu
Mr Chenxi Wu
REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  2315892
HOME AFFAIRS REFERENCE(S):          BCC2022/200859
MEMBER:Kira Raif
DATE:20 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 100 (Spouse) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 20 February 2024 at 9:32am
CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – incorrect information in the visa application – bogus documents – notarised penal certificate and authority for the children to migrate – non-genuine National ID card and ‘no criminal conviction certificate’ – actor engaged for an interview – applicant unable to contact former spouse – sponsor’s criminal record – relationship ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 101-105, 107, 109, 140, 359
Migration Regulations 1994, Schedule 2, cl 309.213; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 first named applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a national of China, born in May 1980. She was granted the Spouse visa on 2 November 2021. In July 2023 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s 103 of the Act. The applicant provided her responses and on 29 September 2023 the applicant’s visa was cancelled. The applicant seeks review of that decision.
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 purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicant appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 103.
Primary decision
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application for the Spouse visa in May 2019. Included in the application were her two children, born in October 2012, from her previous relationship with Mr Yajun Wu. The visa applicant included in her application Form 1229 – consent for child’s migration – and a Chinese National ID card for Mr Yajun Wu. The form was accompanied by a notarised certificate confirming the signature of Yajun Wu. The visa applicant also included in her application a notarised penal certificate of the sponsor, Mr Chen, indicating he had no criminal record in China up until May 2021.
The visa applicant was granted the temporary and permanent visas on 2 November 2021. She entered Australia on 16 December 2021, while the children remained in China.
Since the grant of the visa, certain inquiries outlined below were made, as a result of which the delegate concluded that Mr Chen’s notarised penal certificate and the authority for the children to migrate purportedly signed by Mr Wu were bogus documents.
The primary decision record indicates that local Department staff in China advised that the ‘no criminal convictions’ certificates are usually issued by local police stations and applicants for the notarised penal certificate must provide the ‘no criminal conviction certificate’ obtained from a police station and some identity documents to the Notary Public office.
The primary decision record refers to the following integrity checks:
·The Notary officer, Mr Zhao, stated that Mr Chen’s notarial penal certificate was genuinely issued by their office based on the ‘no criminal conviction certificate’ issued by Shenshuiwan police station at Shenyang city public security bureau (PSB).
·Department officers conducted an online search and could not find any information about Shenshuiwan police station but found information about a police station with a different (but very similar) name. The Notary officer confirmed that according to their records, the police station was the one for which no record was found.
·An officer from the Shenshuiwan police station stated that their station would only issue a ‘no criminal conviction certificate’ for those whose hukou is registered within the jurisdiction of their police station. It is noted that the sponsor’s hukou was not registered in Shenyang city.
·The Notary officer confirmed that the police station that is listed on the ‘no criminal conviction certificate’ does not exist. The Notary officer stated that a false document was provided to the Notary Public Office by the client to obtain the notarial certificate.
·The Notary officer advised the Department in writing that the sponsor’s, Mr Chen’s, notarial penal certificate had been revoked.
The delegate formed the view that the visa applicant provided a bogus notarial penal certificate relating to the sponsor, Mr Chen. It was noted that at the time the certificate was obtained, Mr Chen remained in Australia. The delegate found that while the notarial penal certificate for Mr Chen was genuinely issued by the Notary Public Office, it was obtained because of a false or misleading statement, as the ‘no criminal convictions certificate’ which was provided to the Notary Public Office was false.
With respect to Form 1229 and the consent for the children to migrate, the delegate noted that the visa applicant had submitted more than one form with the application, which allegedly provided consent by Mr Wu for the two minor children to migrate to Australia. Included among these documents was a form dated 20 June 2021 and a copy of the Chinese National ID card for the father of the children, Mr Wu.
Departmental records indicate that an officer of the Department attempted to verify the consent provided by Mr Wu. When contacted by phone on the number listed on the form, the person was unable to answer basic identity questions and the delegate was not satisfied of the identity of the person on the phone. The applicant subsequently provided another Form 1229, dated 24 September 2021, accompanied by a copy of the Chinese National ID card for Mr Wu issued in 2009 and valid until 2019. The ID card displayed a different facial image to the earlier ID card submitted in June 2021. It was stated that the issuing authority for Mr Wu’s ID card was Zhangjiakou city PSB Qiaoxi branch. An officer of the Department contacted the PSB and the following information was provided:
·Zhangjiakou city PSB Qiaoxi branch had no record of issuing Mr Wu with an identity card in 2009.
·Mr Wu applied for an identity card in 2017 and 2021, and his current card was issued in 2021.
·Mr Wu’s hukou was moved from Zhangjiakou city to Shijiazhuang city in 2014 and his hukou belonged to the jurisdiction of Mingdebei police station.
The issuing authority had Mr Wu’s photos of ID cards issued in 2006, 2017 and 2021. In May 2023 a Departmental officer posted two copies of Mr Wu’s ID cards to Zhangjiakou city PSB Qiaoxi branch Mingdebei station. On 5 June 2023 the Mingdebei station contacted the Department and advised that the photo in their internal system relating to 2006 is not the photo that appears on the 2009 ID card. They confirmed that the photos in the two ID cards are not of the same person and the 2009 ID card is likely a fraudulent document.
On 16 June 2023 the Department received Mr Wu’s identity information with the photo issued in 2006 from Mingdebei police station. This was consistent with the photograph accompanying Form 1229 dated 20 June 2021. The delegate concluded that Mr Wu’s National ID card issued on 12 May 2009 and provided with Form 1229 dated 24 September 2021 is a bogus document because it purports to be, but was not, issued with respect to Yajun Wu.
The delegate found that the notarial certificate dated 11 October 2021 is a bogus document because it was issued on the basis of a false or misleading statement and production of a bogus ID card. The delegate found that the applicant provided a bogus document to the Department, being Mr Wu’s National ID card dated 12 May 2009 and the notarial certificate dated 11 October 2021.
The primary decision record indicates that the sponsor, Mr Chen, advised the Department of the following:
·The applicant informed Mr Chen that she was unable to contact the father of her children for years and that it would be impossible to obtain his consent for the children’s migration. She decided to engage an agent to circumvent the situation and was happy to pay additional money for the convenience of not having to locate the father.
·The applicant submitted a consent to grant an Australian visa form, which contained a fabricated signature of the father of the children.
·When the delegate asked for a phone interview, the applicant’s agent managed to get an actor for the interview but the actor failed to answer the questions of the officer and the interview was cancelled.
·Some months later, the applicant advised Mr Chen she would make a second attempt. Mr Chen claims he advised the applicant to get consent through a court but the applicant preferred to rely on her agent. The applicant paid additional money to the agent to fabricate a National ID card for Mr Wu containing his correct information such as his name, date of birth and ID number.
·The applicant requested that Mr Chen provide a police check from China. Due to COVID-19 lock-downs and border closures, Mr Chen was unable to appoint anyone to apply for the police check in China where his temporary residence was registered. Mr Chen states that he did not authorise the applicant to obtain the police check on his behalf. The police check was issued in Jilin Province where Mr Chen never visited or resided.
·The applicant requested additional money from Mr Chen to pay her agent to obtain the police check. Mr Chen advised her not to submit the document and to seek more time to obtain a genuine document but the visa applicant did not want to wait any longer and submitted the fraudulent police check.
The Department also received communication from Mr Chen, who refers to the applicant falsifying his police clearance certificate from China and Mr Wu’s consent, as well as evidence of their communication. Mr Chen informed the Department that the applicant refused to inform him of the details of her arrival in Australia and had never lived with him, and suggested that she no longer needed him since she had been granted a permanent visa. This information was put to the applicant in accordance with the requirements of s 359A of the Act.
Applicant’s evidence and resolution
In her response to the NOICC dated 22 July 2023 the applicant denied the above information. The applicant states that she had no motive or reasons to provide fraudulent documents as she is fully capable of providing genuine documents through proper channels and fraudulent behaviour would not be of benefit to her. The applicant repeated that claim to the Tribunal. The Tribunal finds that claim unpersuasive if, as the information in the primary decision record indicates, the applicant was unable to contact her former spouse Mr Wu to obtain his consent for the children’s migration and if she wanted to minimise delays associated with obtaining Mr Chen’s police clearance certificate. That is, there may well have been motives and reasons to provide fraudulent documents.
The applicant states that she had been subjected to family violence in her previous marriage, highlighting her vulnerability and the need to prioritise her safety and well-being. It is not clear to the Tribunal how that implies that she would have no motive or reason to provide fraudulent documents. If anything, this supports Mr Chen’s claim that the applicant wanted to expedite the grant of the visa and was willing to provide bogus documents for that purpose.
The applicant states, in relation to the police certificate, that she entrusted a third party to handle the documents and was unaware of any fraudulent activity in relation to the documents. She had no intention to submit false or misleading information and was not personally involved in obtaining fraudulent documents. In relation to Form 1229, the applicant states that she relied on the advice of the person assisting with the visa process and had no knowledge of the fraudulent ID card being presented as she genuinely believed it to be genuine. The applicant states that she played no part in the procurement of fraudulent documents by the third party and acted in good faith in entrusting a third party to handle the paperwork. The applicant states that she provided genuine documents to support the visa process and that demonstrates her commitment to the visa application requirements. In her declaration the applicant states that her sister signed an agreement with a company overseas relating to her visa application. Her sister provided the documents to the agent and the agent arranged the sponsor’s police clearance certificates. In relation to her former partner’s consent, the applicant states that Mr Wu was unwilling to take responsibility for the children and she referred to physical violence. She explained these circumstances to the agent and although the agent claimed to have explained these circumstances to Immigration, the ex-husband’s consent was still required.
With respect to allegations made by Mr Chen, the applicant states in her response of 29 August 2023 that she did inform Mr Chen about her inability to establish contact with Mr Wu and chose to appoint an agent and ‘willingly embraced associated financial implications’ to simplify the process. The applicant states that there was no cancellation of the interview (in relation to the ‘father’ being played by an actor) but the Immigration officer initiated a series of two to three phone calls and persisted with the calls. The applicant states that she had no involvement in the situation. The applicant states that during the interviews Mr Wu did express his disinterest in the children’s lives and did give consent, and the applicant submits that Mr Chen’s understanding of the process is unclear. The applicant states that she did not personally contact Mr Wu; it was her sister who attempted to make contact but was unsuccessful and an agent was engaged. The applicant states that she lacks knowledge about the involvement of an actor.
With respect to Mr Chen’s police certificate, the applicant submits that she (through her sister) adhered to ‘proper channels’ during the COVID-19 pandemic. The applicant states that at the time she experienced difficulties with Mr Chen’s police clearance certificate as the sponsor did not cooperate and she sought assistance from an intermediary, who had obtained the certificate, but the sponsor did not acknowledge the validity of the certificate.
In oral evidence to the Tribunal, the applicant states, in relation to Mr Chen’s police certificate, that this happened during COVID-19. The Department had requested the police certificate but Mr Chen thought the visa could be granted without it as he could not travel to China and obtain the penal certificate. The applicant states that her family had contacted an authorised agent in China. She states that Mr Chen was not resident in China but he provided his parents’ hukou, which was used by the agent to obtain the certificate. The applicant states that according to Chinese law, it is possible to obtain a police certificate from a different area as police certificates are national. (The Tribunal notes that this contradicts the advice, recorded in the primary decision, which suggests that only the local police station is able to issue the ‘no criminal conviction’ certificate which is then used to obtain the police certificate from the PSB.)
The applicant denied that Mr Chen’s police certificate was a bogus document. She states that at the time, Mr Chen refused to return to China to obtain the certificate and that is why she had to entrust it to the agent. The applicant could not explain why the police station identified on the certificate was found by Immigration officers not to exist while a police station with a different (albeit similar) name had no record of issuing the document to Mr Chen.
The applicant suggested that there may be something wrong with the investigation and maybe the investigators contacted the wrong police station, and she believes the police certificate to be a genuine document. The applicant claims that the local Immigration officers had found the wrong police station and did not make proper inquiries. The applicant states that if the document was not genuine, she would not have been granted the visa. The Tribunal does not accept these explanations.
The Tribunal is of the view that the local staff who conduct inquiries are very capable of determining how to conduct these and of locating the relevant police station. The primary decision record sets out in some detail the steps taken by the local staff who made enquiries about Mr Chen’s police certificate and the Tribunal does not accept that the wrong station was contacted. As for the applicant’s claim that she would not have been granted the visa if the documents were known to be bogus, the Tribunal is mindful that the information became apparent after the visa grant, leading to the cancellation of the visa. In such circumstances, the fact that the applicant was granted the visa cannot be taken as evidence that there were no bogus documents submitted with the application. The applicant also claims that her sister would never give her bogus documents but that may or may not be the case (the applicant did not identify her sister as a witness) and the Tribunal is not persuaded by that claim.

With respect to her former husband, the applicant states in her submission to the delegate that she had no way of contacting him after the divorce and she communicated that information to Immigration through an intermediary. The applicant states that she had submitted her ex-husband’s ID to Immigration and any steps taken by Immigration to verify his identity are ‘beyond her knowledge’. The applicant states that the various processes for submission of documents changed due to COVID-19 and many were conducted through mail or by intermediary and she did not need to be physically present for the procedures. The applicant states that she relied on the expertise of the intermediary who provided assistance in various aspects of the immigration process and had confidence in her professionalism.
The applicant told the Tribunal that she divorced Mr Wu due to domestic violence and they fought over the children’s custody and she lodged a case against him, so their relationship was not good. They signed an agreement that they would not have any contact. When she made the visa application, she was told by the embassy that she would require Mr Wu’s consent. She told the embassy she could not obtain it but they insisted that it had to be presented, so she asked her family to have contact with Mr Wu. The applicant claims that she did not know what her family did or how they obtained Mr Wu’s consent.
The applicant states that even though the Department requested her to provide consent from Mr Wu, she did not realise the seriousness of the matter.
With respect to the allegations made by Mr Chen, the applicant stated that he was a gambler and demanded money from her family, who had purchased things for him, and she believes he is ‘retaliating’ against her because of their argument. The Tribunal does not accept that explanation, noting that the determination that certain documents were bogus documents was not made solely on the basis of Mr Chen’s evidence but through an independent investigation, which is outlined in the primary decision record. Mr Chen’s claims are, however, consistent with the result of the investigation and that adds considerable credibility to his claims. It is significant that Mr Chen claimed the applicant was aware that certain documents were falsified and were bogus documents.
The applicant told the Tribunal that she had to work long hours to support her children and had no knowledge of the law, and that is why her family helped her and they appointed an agent to deal with the matter. The applicant states that she did not question the agent how the police certificate was obtained and did not question her sister how Mr Wu’s consent was obtained. The applicant also claims that there was no need for her to provide bogus documents because she did not believe it would affect her application.
The Tribunal considers the applicant’s claims unpersuasive. In her response to the NOICC, the applicant claims, essentially, that she entrusted her affairs to an agency and did not know about the provision of documents. In her submission to the Tribunal the applicant claims that all the documents in her application were genuine and the Department made a mistake when verifying the documents. The applicant also claims that if there were bogus documents, these were not provided by her and she had no knowledge of these and did not realise their relevance or significance.
The Tribunal has found the applicant’s evidence unpersuasive and the Tribunal is not satisfied the applicant has been entirely truthful in her claims.
For the reasons set out above, the Tribunal does not accept the applicant’s suggestion that the Department staff contacted the wrong police station or that their enquiries are unreliable. The Tribunal is satisfied that appropriate inquiries were made, which indicated that Mr Chen’s national police certificate was issued by PSB on the basis of a document purportedly issued by the local police station, but which was not in fact issued by the police station identified on the document, as that police station was found not to exist. The information in the primary decision record which indicates that local police stations only deal with people whose hukou is registered locally is consistent with Mr Chen’s advice to the Department that his police certificate was issued in an area where he had never lived.
The Tribunal also does not accept the applicant’s explanation as to how Mr Wu’s consent – including his ID card and notarised certificate confirming his signature – were obtained. The applicant consistently claimed that she could not contact Mr Wu and was aware that the consent was required for the visa grant. The applicant’s evidence to the delegate is that her sister could not contact Mr Wu either and they approached an agent who made the necessary arrangements. The applicant’s evidence to the Tribunal is that she was too busy and asked her sister to locate Mr Wu as her sister had more contact with him than the applicant herself, and the applicant claims she never asked her sister how she was able to obtain the consent.
The Tribunal does not accept it as plausible that while the applicant, on her own evidence, had taken significant steps to locate Mr Wu and was unable to locate him, she made no enquiries from her sister, and did not seek an explanation, of how the sister was able to obtain Mr Wu’s consent. It is unclear to the Tribunal why the applicant believed her sister (or an agency) would be able to contact Mr Wu and get the consent when the applicant herself had failed. The applicant claims that her sister was less busy and had more contact with Mr Wu over the years, but she also told the Tribunal that she made multiple unsuccessful attempts to contact Mr Wu. It would seem that if the applicant genuinely believed her sister had his contact details or could obtain these, the applicant could have sought these details from her sister, rather than expecting either her sister or an agent to locate Mr Wu and obtain his consent. These matters have not been explained to the Tribunal’s satisfaction.
The Tribunal has formed the view that the applicant had been less than truthful about the manner in which Mr Wu’s consent was obtained and about her lack of involvement in the matter.
The Tribunal also places some weight on the evidence of Mr Chen, outlined above, who suggested that the applicant had paid an agent to fabricate Mr Wu’s consent. The Tribunal acknowledges the applicant’s evidence about the circumstances of the breakdown of her relationship with Mr Chen and, often, the Tribunal would give little or no weight to third party evidence in such circumstances but in this case, some of the information provided by Mr Chen had been verified by the Departmental officers, independently and from sources that were not in any way influenced by the applicant’s relationship with Mr Chen. The information in the primary decision record gives credence to the claims made by Mr Chen and the Tribunal gives these some weight.
Having regard to the inquiries set out in the primary decision, which the Tribunal finds persuasive, the Tribunal finds that Mr Chen’s Chinese national police clearance certificate was a bogus document. The Tribunal also finds that Mr Wu’s Chinese ID card, which accompanied the consent for the children’s migration, is a bogus document. The Tribunal finds that the applicant gave, presented or provided to the Minister, a bogus document or caused such document to be given, presented or provided. The Tribunal finds that the applicant had not complied with s 103 of the Act.
The applicant repeatedly told the Tribunal that it is unfair to cancel her visa because of what Mr Chen had done as he had demanded her obedience and money from her family and threatened to cancel her visa if she did not comply. The Tribunal notes that the ground for cancellation arises because of the finding that the applicant had provided bogus documents, based on an independent investigation carried out by Immigration officers, and not because of the relationship breakdown or the evidence of Mr Chen.
For the reasons set out above, the Tribunal finds that there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). They are addressed below.
The correct information
As the ground for cancellation arises due to the provision of bogus documents, this consideration is not relevant.
The content of the genuine document (if any)
The Tribunal found Mr Chen’s penal certificate from China and Mr Wu’s ID card that accompanied his consent to be bogus documents. The genuine document would not reflect the consent of the children’s father for their migration to Australia. It is unclear what the genuine police certificate for Mr Chen would show but the applicant claims he has no criminal record in China.
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 told the Tribunal that her visa was not dependent on the consent to the children’s migration being given. The applicant stated that she always thought that she could come first and the children could migrate later, so she did not realise her and the children’s visas would be granted together. However, the applicant confirmed that the children were included in her visa application and there is no apparent reason for the applicant to believe that the processing of the children’s application could occur at a different time, even if she did not intend the children to accompany her to Australia.
Irrespective of the applicant’s own beliefs, the children were included in the applicant’s visa application, and as such they were required to meet the statutory criteria for visa grant. Relevantly, Item 4017 provides that in relation to the migration overseas of minor children consent by the parents must be given or an order of the court must be made. There is no suggestion that in this case, the relevant court orders were presented, so the applicant relied on Mr Wu’s consent to meet the requirements of Item 4017. It is significant that without evidence that the requirements of that provision were met, the visa applicants could not be granted the visas. The Tribunal finds that Form 1229, which included Mr Wu’s bogus ID card, was submitted to evidence Mr Wu’s consent to the children’s migration. It was relevant to Item 4017.
Further, the sponsor’s criminal record would have been relevant to assessing whether the sponsorship should have been approved, as required by cl 309.213 of Schedule 2 to the Regulations.
It is not for this Tribunal to determine if the applicant would have still been granted the visa if no bogus documents were provided. The Tribunal finds that the decision to grant the visa was based, partly, on bogus documents.
The circumstances in which the non-compliance occurred
The circumstances and the applicant’s claims are addressed above. Essentially, the applicant claims that she provided only genuine information to an agent and was not aware of, nor involved in, what the agent had prepared in support of her visa application. The applicant’s submission to the Tribunal is somewhat different as she claims that she believes all the documents were genuine and in any case, she did not deal with these matters herself but relied on others.
With respect to Mr Wu’s ID card, the applicant states that she has not had contact with Mr Wu for many years and was unable to find him. He had changed his place of residence and was uncontactable by phone and ultimately she asked her sister to contact him and her sister had done that. When asked how her sister was able to find Mr Wu when the applicant failed in her many attempts, the applicant said that she did not ask. The Tribunal has considerable concern about the veracity of that claim. The Tribunal does not accept that, being aware of the Immigration requirement to obtain consent from Mr Wu and having failed in her multiple attempts to find him, the applicant took no interest, and made no inquiries from her sister about how her sister was able to find Mr Wu (she claims she had little interest in the application by that time). Notably, in her evidence to the delegate the applicant seemed to suggest that the family could not contact Mr Wu and that is why they engaged an agent.
The Tribunal has formed the view that the applicant was not truthful in her explanation of how contact was made with Mr Wu. The Tribunal does not accept that the applicant had not inquired of her sister how contact with Mr Wu was made if it was indeed made by the sister. Importantly, the Tribunal does not accept that the applicant had no knowledge that Mr Wu’s ID card was not a genuine document. As noted above, the Tribunal places some weight on the evidence of Mr Chen, as set out in the primary decision record, which indicates that the applicant was aware that her appointed agent had fabricated Mr Wu’s signature and hired an actor to impersonate him during a phone interview.
In the Tribunal’s view, the applicant was well aware that Mr Wu could not be contacted and that she was aware (or should have reasonably been aware) that Mr Wu’s ID card was a bogus document because it was not obtained from Mr Wu, who could not be contacted.
The applicant also repeatedly told the Tribunal that even though she knew the Department wanted the consent from Mr Wu, she did not know how important it was. She claims she was too busy with work and not very proactive in her visa application process. The Tribunal does not accept that evidence. The applicant’s evidence is that she was informed of the need to provide consent. She would have been cognisant that it was a requirement for visa grant, whether or not she believed it to be ‘important’.
With respect to Mr Chen’s police certificate, the applicant states that Mr Chen could not return to China, so he gave her his family’s hukou and they contacted the local police station and she believes the Immigration officers may have contacted the wrong police station. As noted above, the Tribunal does not accept that explanation as the Tribunal is of the view that the Immigration officers conducting enquiries had done so appropriately, thoroughly and competently. The Tribunal does not accept they contacted the wrong police station. The fact that Mr Chen’s penal certificate was subsequently cancelled by the local authorities (as the primary decision record notes) indicates that the local authorities – who would also be highly competent in these matters – also determined Mr Chen’s national police certificate was not appropriately obtained.
The Tribunal has formed the view that the applicant has been less than truthful in her explanations. The Tribunal has formed the view that the applicant had been aware of, and authorised, the preparation of bogus documents.
The present circumstances of the visa holder
The applicant told the Tribunal that she works daily and her work performance is good. She works in a factory during the week and in a restaurant over the weekend. The applicant refers to the shortage of workers in Australia. The Tribunal accepts that the applicant is employed and that she is well regarded at work.
The applicant states that her children live in China and she has to work to support them. They are good at their study and get high marks and she wants to bring them to Australia to study in an English based environment, which would be better for them. The Tribunal accepts that the applicant planned to bring her children to Australia once they turn 12.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant repeatedly denied providing bogus documents with her application, and in her evidence to the Tribunal the applicant repeatedly told the Tribunal that all the documents in her application were genuine. The Tribunal has formed the view that the applicant has not been truthful in her evidence to the Tribunal.
Any other instances of non-compliance by the visa holder known to the Minister
Information supplied to the Department by Mr Chen indicates that the applicant had never lived with him in Australia, and had refused to provide him with her travel details or her plans once in Australia.
The applicant told the Tribunal that she did inform Mr Chen of the visa grant and after she came to Australia, they lived at a friend’s place for about three months but they quarrelled badly and she moved out. The applicant states that she arrived in Australia in December and she moved out from the family home in March the following year.
In her written submission to the Tribunal the applicant denied that her marriage with the sponsor ended before her arrival in Australia. The applicant states that the sponsor repeatedly asked for financial assistance from her family, which led her family to be suspicious about his intentions. She states that she decided to dissolve her marriage to the sponsor. In oral evidence the applicant also stated that Mr Chen was demanding money from her family and expected obedience from her and threatened to cancel her visa.
The Tribunal acknowledges that the applicant’s evidence about the circumstances of her arrival is not consistent with the evidence of Mr Chen but the Tribunal has not had the opportunity to test Mr Chen’s claims with respect to the relationship. On the limited evidence before it, the Tribunal is not prepared to make a positive finding that the applicant’s relationship with Mr Chen ended before her arrival in Australia (which would have been in breach of s 104).
The time that has elapsed since the non-compliance
The delegate notes in the primary decision that the applicant provided bogus documents in July and October 2021. Less than three years has passed since the non-compliance. This is not a significant period in the Tribunal’s view.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community
The applicant refers to the shortage of workers in Australia and to her employment in a factory and a restaurant, stating she is well regarded by her employers. She states that her work is stable and she pays taxes and has been able to save for a deposit to purchase a property in Australia. In her post-hearing submission the applicant provided evidence of her employment in Australia, including payslips and taxation records which, she claims evidences her financial independence and contribution to the Australian economy. The applicant also states that she is used to life in Australia. The Tribunal is prepared to accept that the applicant has made some contribution to Australia through her employment.
The applicant claims that her boss treats her well and if she has to leave, he would be impacted. This claim is unsupported by any probative evidence, such as, for example, any evidence as to what attempts, if any, were being made to replace the applicant if she is no longer able to work for the same company. On the limited evidence before it, the Tribunal does not accept the employer will be affected if the applicant’s visa is cancelled.
While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s 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

The visas held by the applicant’s two children are subject to consequential cancellation.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa
The applicant has two minor children who would be affected by the cancellation. In her response to the NOICC the applicant refers to disruption to her children. She told the Tribunal that her children are very good students and she wants them to study in Australia, which would be a better environment for them. The applicant states that her children had spent one week in Australia during holidays (in her post-hearing submission she provided a number of photographs depicting the children’s visit to Australia) and in China they live with her sister. When asked why the children did not accompany her when she travelled to Australia and had not migrated here since that time, the applicant explained that they are not yet 12 and would not be allowed to be independent under Australian law, so she is waiting for the children to turn 12 and be more independent before they migrate.
The applicant states that the schools and the environment are better in Australia and in China workers are expected to always be on call. She states that it would be better for the children to migrate at an earlier age to acquire the language. The Tribunal found the applicant’s claim that Australia’s environment and schooling are better than in China to be largely subjective. The applicant has not presented persuasive evidence – other than to express her personal belief – that the Australian environment and schooling would be better for her children.
The Tribunal accepts that if the visas are cancelled, the children will lose the opportunity to migrate to Australia (unless they obtain other visas in the future). The Tribunal also accepts that the applicant planned for the children to migrate to Australia and to study in this country. However, the Tribunal is also mindful that the children had spent their entire lives in China and had only visited Australia briefly for one week. In such circumstances, the Tribunal does not consider there would be significant disruption to the children if they were to remain in China rather than migrate to Australia. In fact, any disruption to them would be minimised if they continue to live in China.
The Tribunal has formed the view, on the limited evidence before it, that the best interests of the two children would not be adversely affected if the applicant’s visa is cancelled.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations
The applicant states that her marriage to Mr Chen is a second marriage and if she was to return to China, she would be ashamed in front of her relatives and friends about the break-up of the marriage. She states that she had developed depression over it. The Tribunal does not consider that the applicant being ashamed before her friends and relatives due to the failure of her second marriage gives rise to Australia’s protection obligations. As no other claim has been raised by the applicant, the Tribunal finds that the cancellation of the applicant’s visa will not lead to her removal in breach of Australia’s non-refoulement obligations.
As for the principles of family unity, the Tribunal notes that the applicant has no family in Australia. Her relationship with the sponsor has ended and her immediate family, including her children and her sister, remain in China.
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 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
If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and could be detained and removed from Australia. There are no protection findings made in relation to the applicant and no suggestion of indefinite detention. The applicant would have limited options to make other visa applications onshore due to the operation of s 48 and would be subject to an exclusion period in relation to some future visa applications. The applicant will also lose the entitlements she has acquired as a permanent resident of Australia and will not be eligible for Australian citizenship if her visa is cancelled.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
In her response to the NOICC, the applicant refers to her previous relationship and being a victim of family violence. In her declaration of 18 February 2024 the applicant also refers to her ex-husband mistreating her and demanding money from her family. The Tribunal has not tested these claims but notes that the applicant’s relationship with Mr Wu ended some years ago, and on her own evidence, the applicant has not been able to, nor has had any, contact with him. In the circumstances, the Tribunal does not consider that the decision on the applicant’s visa would increase her risk of being subjected to family violence by Mr Wu if that is what she claims.
The applicant also refers to Mr Chen being a gambler and demanding money from her family. Again, the Tribunal is mindful that, whether or not these claims are true, the applicant’s relationship with Mr Chen has ended and the applicant told the Tribunal they have separated. The Tribunal does not accept that the cancellation of the applicant’s visa would have any effect on that relationship.
The applicant told the Tribunal that if her visa is cancelled, she would not be able to support her children. The applicant described a number of jobs she held prior to her arrival in Australia. The Tribunal is mindful that the applicant had been able to support her children in the past and there is no obvious reason why she could not do the same in the future. She also told the Tribunal that she has a property in Beijing and some savings in Australia, sufficient to purchase a property. The applicant refers to low salaries in China and high stress, stating she would have to work longer hours to support her children and would not have time to support them. The Tribunal accepts that average salaries in China may be lower than in Australia but that is a meaningless observation if it does not take account of the cost of living, and the applicant has not established that the cost of living in China is such that her lower salary would not be sufficient to support her children.
The applicant also claims that in China she would have to work longer hours to make the same money, so she might not have as much time to spend with her children. As noted elsewhere, the applicant has not presented any evidence to indicate what work she might take up if she was to return to China or the hours that she might be required to work. Even if the Tribunal were to accept that there may be a degree of hardship to the applicant or the children due to the fact that the applicant would have to work longer hours to provide financial support to her children, in the Tribunal’s view, such hardship would not be significant. This is because the applicant’s own evidence to the Tribunal is that she had been working very hard and long hours in China prior to coming to Australia (which would have limited the time she could spend with the children), had decided to migrate to Australia without her children denying herself the opportunity of spending any time with them, and has decided to wait until the children turn 12 and become more independent before bringing them to Australia. The applicant’s evidence suggests that she made decisions that limited the time she could spend with the children and, in such circumstances, the possibility of working extra hours to support the children, if that was required, does not seem to constitute significant hardship.
In her post-hearing submission the applicant suggests that it would be hard for her to find employment in China due to her age. The Tribunal is mindful that this claim was not raised in her oral evidence. instead, the applicant claimed that she would have to work long hours to support her children, which would indicate that there would be no shortage of work. The applicant has not presented any evidence to support her recent claim that she would find it difficult to find employment in China. For example, the applicant has not presented evidence of having sought employment and of having been denied employment in China. On the evidence before it, and having regard to the applicant’s oral evidence given during the hearing, the Tribunal is not satisfied that the applicant would find it difficult to find employment in China, either due to her age or for any other reason.
In his submission to the Tribunal of 19 February 2024 the applicant’s representative submits that the applicant’s case must be viewed ‘through a lens of compassion and understanding, considering her status as a survivor of domestic violence’. The applicant presented very little probative evidence about the claimed experience of family violence. Indeed, there is little information other than the applicant’s own claims and, given the findings above, the Tribunal does not consider the applicant to be a truthful witness. There is no other independent, contemporaneous or otherwise probative evidence relating to family violence, such as, for example, police records, medical records, evidence from health or allied health professionals, etc. In any case, even if the applicant did experience family violence in the past, as she claims, the Tribunal does not consider that such experience justifies the provision of bogus documents in a visa application.
The applicant provided to the Tribunal a number of character references, stating that she is a respectable member of the community and adheres to the Australian values. These include a statement from her work colleagues and a statement from her employer. The Tribunal accepts that this may be the case, although the Tribunal is also of the view that the provision of bogus documents to a government agency in order to secure a visa does not necessarily accord with the Australian values. In the Tribunal’s view, the claimed adherence to the Australian values, and equally non-adherence, is not a significant consideration when determining how the discretion is to be exercised. In her submission of 19 February 2024 the applicant also refers to the Australian values of empathy, justice protection of the vulnerable, etc. The Tribunal finds such generalisations unhelpful. The role of this Tribunal is to determine whether the decision under review is correct and preferable, not to enforce some generalised values to which the applicant refers.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant has not complied with s 103 of the Act and that there are grounds for cancelling her visa.
There are no other instances of non-compliance and no breaches of the law. The Tribunal accepts that the applicant may have made a contribution to Australia.
The Tribunal has formed the view that the cancellation of the visa would not breach Australia’s international obligations and would not be contrary to the best interests of her children. Some of the above considerations weigh against the cancellation and others are neutral.
The Tribunal is prepared to accept that there may be some hardship if the visa is cancelled, particularly as the applicant now seems to be settled in Australia and has stable employment, and because her children will lose the opportunity to migrate to Australia. These factors weigh strongly against the cancellation.
The Tribunal places significant weight on the circumstances in which the non-compliance occurred. The Tribunal has rejected the applicant’s claim that either all the evidence in her application was truthful and that there were no bogus documents, or that she did not know about the provision of bogus documents as these were arranged by someone else. The Tribunal has formed the view that the applicant most probably authorised the agency to arrange such documents and that she was aware of the provision of bogus documents. The Tribunal places weight on the fact that the applicant continued to provide false information in her evidence to the Tribunal when denying her knowledge of the matter. These matters weigh strongly in favour of the cancellation.
The Tribunal also places significant weight on the fact that the decision to grant the visa was based, in part, on bogus documents. The Tribunal is mindful that without Mr Wu’s consent, the children could not meet PIC 4017 and it is likely that the applicant would not have met the visa requirements. This weighs strongly in favour of the cancellation.
Having regard to all the relevant circumstances, as discussed above, the Tribunal has decided to give greater weight to the factors that favour the cancellation. The Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 100 (Spouse) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Kira Raif
Senior Member

[2024] AATA 365

20 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction