Liao (Migration)

[2022] AATA 2238

Liao (Migration) [2022] AATA 2238 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bin Liao

REPRESENTATIVE:  Mr Jia Li (MARN: 0301059)

CASE NUMBER:  2113233

HOME AFFAIRS REFERENCE(S):          BCC2019/3330206

MEMBER:Kira Raif

DATE:1 July 2022

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 01 July 2022 at 8:47am

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – incorrect information and bogus documents provided in visa application – de facto partner and bank statements – departmental investigation – discretion to cancel visa – non-compliance conceded – advice of agent – points score – relationship included because English test score initially insufficient – later test score sufficient, but application already lodged – indifference to contents of application – validly married to Australian resident – pregnancy, health, financial circumstances and possible hardship – work and social ties – possibility of applying for other visas – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(b), 101, 103, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, criterion 4020

CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in May 1990. He was granted the Skilled visa in October 2016. In August 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he did not comply with ss 101 and 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse Ms Li. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. Extracts of the Act relevant to this case are attached to this decision.

6. 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.

   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 visa on 8 March 2016 and included in that application Ms Jin Lu as a dependent applicant. The applicant claimed that he met Ms Lu in March 2015 and they commenced a de facto relationship on 17 April 2015 when she moved to his place. On the application form the applicant also referred to having a de facto relationship with Ms Lu from March 2015 and included Ms Lu as his de facto partner, providing her personal details. The applicant completed a declaration on the form confirming that the information he gave on the form and in attachments was complete and correct in every detail.

11. The primary decision record indicates that included with the application were a number of documents which sought to evidence the applicant’s relationship with Ms Lu. These included:

    a.Commonwealth bank statements for the period from February 2015 to May 2016 in both the applicant’s and Ms Lu’s names addressed to an address in Zetland; and

    b.ANZ bank statements for the period from March 2015 and May 2016 in the applicant’s own name, addressed to the same Zetland address.

12. It is stated that the applicant and Ms Lu were granted the Skilled visas on 17 October 2016.

13. The primary decision record indicates that following the visa grant, the Department carried out a forensic investigation of the bank records which found that the residential addresses shown on these documents did not match the residential addresses officially linked and registered to these documents. The delegate concluded that these were bogus documents.

14. The primary decision record indicates that the applicant claimed in Form 80 that he lived at Ultimo until June 2014 and at the Zetland address from that time. However, when completing the Incoming Passenger Cards (IPCs) upon arrival in Australia in November and December 2015 and February and September 2016, the applicant declared his address at Ultimo and it was only in December 2016 that he declared the Ultimo address on the IPC. The delegate notes that Ms Lu declared different addresses and contact persons on her own IPCs during the processing of the Skilled visa application.  

15. In his response to the NOICC the applicant outlined the circumstances surrounding the lodgement of his visa application. In particular, he claims he approached a migration agent who recommended lodging the application with a de facto to gain additional points and the applicant claims he only provided genuine documents to the agent, whom he trusted.

16. In oral evidence to the Tribunal, the applicant confirmed that he did not have a relationship with Ms Lu. The applicant stated that he was having difficulty meeting the English requirements, his friend introduced him to an agent and the agent suggested that he could include another applicant in his application to get additional points. The applicant said that he wanted to include the secondary applicant because he was short of English points and later on, when he passed the English test, he told the agent not to include Ms Lu but by that  time the agent told him the application was already lodged and he should not change it.

17. The Tribunal accepts that the applicant may not have been personally involved in the preparation of bogus bank statements. However, in the Tribunal’s view, that does not diminish his involvement in the fraud. The applicant’s evidence suggests that he was told by the agent that he would include Ms Lu as a de facto partner in order to gain more points. The applicant knew that he was not in a de facto relationship with Ms Lu. That is, the applicant was well aware that there was a real likelihood his application could contain incorrect answers and the applicant had authorised, or consented to the provision of incorrect information in his application, at least in his earlier dealings with the agent. The Tribunal is also mindful that the applicant is taken to have completed the application form even if the form was completed by another person.

18. The Tribunal finds, having regard to the information in the primary decision record, that the bank records had their addresses altered. The Tribunal finds that these had been altered by a person without authority and the Tribunal finds the bank records are bogus documents, within the meaning of s 5 (b) of the Act. The Tribunal finds that the applicant gave, presented or provided to the officer or the Minister, a bogus document or caused such document to be given, presented or provided. The Tribunal finds that the applicant did not comply with s 103 of the Act.

19. The Tribunal further finds, having regard to the applicant’s own evidence, that he never had a de facto relationship with Ms Lu. The Tribunal finds that by claiming to be in a de facto relationship with Ms Lu, the applicant completed the application form in a way that incorrect answers were given or provided, contrary to the requirements of s 101 of the Act.

20. 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?

21. 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).

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

    The correct information

23. The correct information is that the applicant did not have a de facto relationship with Ms Lu and did not live with her at the same address.

    The content of the genuine document (if any)

24. The genuine documents would not evidence the applicant and Ms Lu residing at the same address, nor sharing their finances.

    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

25. The applicant’s evidence is that he had initially intended to rely on additional points on the basis of his de facto relationship because he did not have sufficient points but once he passed the English test, he no longer relied on Ms Lu’s points. The applicant confirmed that he met the pass mark on the basis of his own characteristics and did not rely on additional points from Ms Lu. The Tribunal accepts that this is so but the allocation of points is not the only consideration in a Skilled visa. Importantly, the applicant would have been required to meet PIC 4020. The bank records were found to be bogus documents. Whether or not the applicant needed to rely on de facto points to meet the pass mark, his application did contain a claim that he was in a de facto relationship with Ms Lu and evidence of such relationship including bank records. These documents were bogus documents and if it was known to the decision-maker that the applicant submitted bogus documents with the Skilled visa application, that would have affected the assessment of PIC 4020.

26. 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

27. The applicant refers in his written submission to completing study in Australia and his intention to apply for the visa, however, he states that he repeatedly failed the English test and did not gain sufficient points. He states he approached an agent who suggested he could make the application on the basis of having a de facto spouse. The applicant states that once he passed the English test, he told the agent he wished to make the application on his own but the agent told him he had already made the application on the basis of a de facto relationship and the agent warned him not to do anything at the risk of his application being refused. At the commencement of the hearing the applicant provided to the Tribunal copies of his communication with the agent, which appear to support his claims. The applicant refers to being stressed about the situation but too concerned and threatened by the agent to act. The applicant states that the agent created an email address for the lodgement of the application and that he only gave genuine documents to the agent. The applicant claims that he worked hard to complete his study in Australia and he was able to apply for the visa in his own right but felt deceived by the agent.

28. The Tribunal does not accept that the provision of incorrect answers and bogus documents should be attributed only to the agent. The applicant’s own evidence is that he needed to rely on Ms Lu’s points to gain the pass mark and agreed to include her in the application for that reason. He told the Tribunal that he took some photos with Ms Lu to prove the relationship. That evidence indicates that the applicant was well aware of the fraud and of the incorrect information and gave the ‘go-ahead’ to the agent to make the application on that basis, even if he later changed his mind. Even though the applicant claims he later told the agent not to proceed with the application, the fact that the applicant cooperated with the agent to establish the non-existent relationship indicates that the applicant was indifferent about the provision of incorrect answers and bogus documents with his application and unconcerned by his reliance on false claims to achieve additional points.

29. The applicant’s evidence is that he was having difficulties passing the English test and gaining the required pass mark, so the agent recommended reliance on a de facto partner. The applicant states that later he did pass the English test and told the agent that he wished to make the application in his own right but the agent told him they had already submitted the application and he should not change it. The Tribunal acknowledges that, ultimately, the applicant did not rely on Ms Lu’s points but is mindful that it his was intention to do that initially when he thought he needed the extra points. The Tribunal also acknowledges that the applicant later enquired with the agent about the withdrawal of his application but in the Tribunal’s view, he only did so because he no longer needed Ms Lu. If he had not passed the English test, it appears that the applicant would have been content to rely on the existence of the de facto relationship to gain the extra points.

30. There is also no suggestion that the applicant had informed the Department that the application contained incorrect information. There is nothing to indicate that the applicant had taken any steps to withdraw the application. The applicant explained to the Tribunal that the agent threatened him and he was too concerned that the application may be refused or his visa cancelled. It appears that the applicant’s desire to maintain his visa was stronger than his desire to rely on truthful information. The applicant also claims he did not know how to interact with the Department but the Tribunal does not accept that evidence as the applicant had the obvious option of seeking professional help from another agent.

31. It is also of some concern to the Tribunal that the applicant claims he trusted the agent because he was referred to the agent by a good friend. The applicant’s own evidence is that from the start, the agent recommended the inclusion of a de facto to gain points, that is, the agent recommended to the applicant the submission of false information. The agent also invited the applicant to take photographs with Ms Lu to prove the existence of the de facto relationship. It would have been obvious to the applicant that the application was to contain false information and that the provision of false claims could not have been in accordance with the Australian laws. It is difficult to see how the applicant could have trusted the agent after that advice. In the Tribunal’s view, the applicant’s decision to continue to deal with the same agent indicates his indifference about the provision of false claims in his visa application.

    The present circumstances of the visa holder        

32. In his response to the NOICC the applicant refers to his relationship with an Australian partner Biyao and in his submission to the delegate the applicant provided evidence concerning that relationship, with additional evidence provided to the Tribunal. He provided to the Tribunal a copy of the marriage certificate confirming the marriage took place in November 2021. The Tribunal accepts, for the purpose of this review, that the applicant may be in a genuine relationship with an Australian resident. There is also evidence of Ms Li’s ongoing pregnancy and of her consulting with a psychologist.

33. The applicant provided additional evidence to the Tribunal on 26 April 2022. This includes evidence of his home loans for several properties and the Tribunal accepts that the applicant has the ownership of the properties and financial obligations associated with the loan repayments. The applicant provided to the Tribunal a number of payslips as evidence of his employment. In June 2022 the applicant provided to the Tribunal some payment records.

34. The applicant provided a further written statement to the Tribunal on 27 June (a day before the scheduled hearing). No explanation is offered by the applicant or his representative for the late submission of evidence. In that statement the applicant refers to his current employment with StarTrack and DHL and states that due to labour shortages, it is hard to find employees and it is important to his company that he can keep working. The Tribunal accepts the applicant’s evidence concerning his employment but does not accept that, should he leave, the company would be unable to find another employee to replace him, if that is the applicant’s claim. Given the size of the employer, the Tribunal does not consider that the applicant’s role is so instrumental to the operations of the employer as to make him irreplaceable.

35. The applicant refers to his wife’s pregnancy and states that she will return to casual or part-time employment and her salary will be lower. The Tribunal accepts that evidence, although that is not a consequence of the cancellation of the applicant’s visa. The applicant refers to his wife’s settlement in Australia, noting that her assets and job and friends and family are in Australia and he states that it would be hard for her to relocate with him. The applicant states that they want their child to be born in Australia and there would be no one available to care for his wife if he cannot stay in Australia. The Tribunal is prepared to accept that evidence, although the Tribunal is mindful that the cancellation of the visa need not equate to the applicant having to depart Australia. The applicant refers to the trauma his wife had suffered upon the separation of her parents, and the hardship she would experience by the cancellation of the visa, and the Tribunal accepts the evidence.

1. The applicant refers to the financial hardship, noting the mortgage obligations for five properties, and his obligations to repay loans to his friends. The applicant states that his wife would not be able to meet the financial obligations on her own and he cannot provide for his family and his wife if he has to leave Australia. The Tribunal accepts that if the applicant is not employed in Australia, or if he is to leave Australia, this may impact on the family’s financial circumstances and the ability to meet its various expenses. The Tribunal is also mindful that there may be other options available, such as, for example, the sale of one or more of the properties, should the need arise. The applicant told the Tribunal that he has not been able to sell the property but the Tribunal is not satisfied that situation will necessarily continue in the future.

2. The applicant refers to COVID and states that his wife would not be able to travel to China with him. The Tribunal accepts that if the applicant decides to leave Australia, there may be a period of separation between the applicant and his wife. The Tribunal accepts this would cause hardship to the applicant.

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

3. The applicant’s evidence to the Tribunal is that he asked the agent to withdraw the application but, having been told by the agent that this would not happen, the applicant did nothing further. It does not appear that the applicant had taken adequate steps to ensure he had informed the Department of the incorrect answers before his visa was granted.

   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 March 2016 and six years has passed since the non-compliance.

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

6. The applicant states that he respects the Australian law. There is no evidence of any breaches of the law.

   Any contribution made by the holder to the community

7. The applicant refers in his submission to the delegate to the friendships he has formed in Australia and states that he always tried to be helpful to those around him. The Tribunal accepts that the applicant has contributed to the community through his social interactions, as well as 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 Lu may be subject to consequential cancellation. The applicant’s evidence to the Tribunal is that he has not had any contact with Ms Lu and is not aware of her circumstances or her whereabouts. 

   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. There is no evidence, and the applicant does not claim, that the cancellation of his visa would breach Australia’s non-refoulement obligations. The applicant’s partner is in Australia and is a permanent resident of Australia.

    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

12. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. 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.

13. The Tribunal accepts that these are significant consequences which may cause considerable hardship to the applicant.

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

14. In his response to the NOICC the applicant refers to his relationship with an Australian partner and outlines the hardship that the cancellation of his visa would cause to them both.

15. The applicant refers to a lawsuit which has been going on since 2018, stating that despite their victory in court, they have not been compensated yet. The applicant states that he was the one having all the dealings with the lawyer and if he is to leave Australia, it would be impossible for his partner to handle the process by herself. The Tribunal does not accept that evidence. Firstly, the applicant’s evidence is that the lawsuit has finished and while the Tribunal accepts that the payment may not have been made, the applicant has not satisfied the Tribunal that his partner would be unable to handle what is left of the matter, even if she has not done that previously. Secondly, it would not be impossible, in the Tribunal’s view, for the applicant to continue his involvement in the matter whether or not he remains in Australia. If the applicant believes his partner is unable to handle the matter (which the Tribunal does not necessarily accept), there is no obvious reason why the applicant could not assist her or instruct a lawyer even if he was to leave Australia. Thirdly, the Tribunal is mindful that the cancellation of the visa need not equate to the applicant having to depart Australia, although the Tribunal acknowledges that he may wish to do so.

16. The applicant refers to the emotional and other support he and his partner provide to each other, and the various events in their lives (such as their parents’ health issues, the divorce of his partner’s parents) that had affected them. The applicant refers to his partner suffering from depression and he provided with his response to the NOICC medical evidence, which the Tribunal accepts. The Tribunal is prepared to accept that the applicant and his partner provide each other with emotional support and rely on each other for such support. The Tribunal is of the view, however, that even if the applicant was to leave Australia as a result of his visa being cancelled, this does not mean that the emotional support will cease. It is not uncommon, nor impossible, for emotional support to be provided by partners whether they live in the same household or separately and apart. The Tribunal accepts that the nature of the partners’ communication may be different if the applicant was to leave Australia but the Tribunal does not accept that it would not be possible for him to provide, and rely on, emotional support for his partner.

17. The applicant states that he wants to stay in Australia with his wife and support her in taking care of the baby. He provides her with daily support, like cooking and massage and help with medication. The Tribunal accepts that the applicant is providing daily support to his partner. The Tribunal also acknowledges the medical evidence relating to the applicant’s partner and accepts that any separation may cause hardship and even distress to the applicant’s spouse.

18. Ms Li’s evidence to the Tribunal is that she supports her mother financially and she was hoping to sponsor her mother for an Australian visa. She states that if her husband’s visa is cancelled and she is to travel to China with him, she would not have the income to meet her financial obligations and support her mother. Ms Li told the Tribunal that if her husband had to apply for the visa offshore, the period of separation may be a long one. The Tribunal accepts that evidence.

19. The applicant refers to the length of time his partner has spent in Australia and her settlement in Australia. The Tribunal accepts that evidence but is mindful that there is no suggestion that Ms Li would be required to leave Australia if the applicant’s visa is cancelled. She would be unaffected by the cancellation of the applicant’s visa and, if the applicant’s evidence about their relationship is true, she can sponsor the applicant for a Partner visa in the future.

20. The applicant refers to the family’s financial circumstances, including the cost of daily living and home loan repayments over $11,300 (the applicant refers to having ownership of four properties under his name and one property under his partner’s name). The applicant states that due to COVID, his rental income has decreased and is not sufficient to meet the mortgage repayments and he has very limited savings in the bank. The applicant also refers to having to borrow money for the lawsuit. He claims that he has to work with his partner to ensure monthly repayments and the enforcement of the lawsuit and without him, his partner could not handle it and would suffer a ‘huge loss’. The Tribunal is mindful that these claims are entirely unsupported by any probative evidence. Even if it was assumed that the applicant could only work and earn money in Australia (which the applicant has not established), as noted above the applicant would have the option of selling one or some or all of his properties and he provided no evidence that doing so (even if it takes time) would cause him or his partner any loss, let alone a ‘huge loss’.

21. The applicant states that his parents have provided him with money to assist with property purchasing and these properties have cost them their life savings and actually belong to them. The applicant states that his parents plan to migrate to Australia. The Tribunal accepts that if the applicant does not hold an Australian visa, it would be more difficult for his parents to migrate but as noted above, the Tribunal is not satisfied on the evidence before it that the applicant, his partner or his parents would suffer financial loss if the applicant is not employed in Australia.

22. The applicant states that if he was to return to China, it may take him a while to find a job, especially during COVID. The applicant states that his salary in China would be low and not sufficient to cover his loans in Australia and his living expenses and he may be forced to sell the properties at a loss. The applicant also claims that his parents are ‘innocent’ and would lose their financial stability and life savings if he was to sell the properties. As noted above, in the absence of probative evidence (for example, evidence relating to purchase price and an independent evaluation of the current property values) the Tribunal does not accept the applicant’s evidence that the sale of the properties would lead to a financial loss.

23. The applicant states that he came to Australia at the age of 18 and has spent his adulthood in Australia and is dedicated to his study and work. The applicant refers to the friendships he has formed and states that he always tried to be a helpful and responsible person. The Tribunal accepts that evidence and accepts that the applicant has been living in Australia for a lengthy period and that he is settled in Australia and has formed family, social, employment and other ties in this country.

24. Generally, the Tribunal accepts that the cancellation of the visa would cause significant hardship to the applicant and his family. While the Tribunal rejected the applicant’s evidence that the cancellation of his visa would necessarily result in the sale of the properties causing financial loss, the Tribunal accepts that there may be financial hardship resulting from the cancellation, which may lead to the loss of employment for the applicant. The Tribunal also accepts that if the applicant chooses to return to China, this may affect his ties and friendships in Australia and, more significantly, it would also cause hardship to the applicant’s partner.

25. The applicant provided to the delegate a number of character references. The Tribunal accepts that those who provided these references believe the applicant to be a good person (although the Tribunal is also mindful that most character references do not refer to the applicant’s visa issues and the writers may be unaware of the circumstances that led to the cancellation of his visa). The Tribunal also accepts that the applicant has formed strong social ties in Australia.

26. The applicant repeatedly told the Tribunal that he is regretful about his actions. He provided evidence to the Tribunal of having approached the agent to correct the information and he claims he was threatened by the agent that his visa may be cancelled. The applicant’s evidence is that he was too concerned about the cancellation of the visa to take any useful action. The Tribunal accepts that the applicant did have that interaction with the agent but as noted above, the Tribunal has formed the view that the applicant’s decision not to proceed with the inclusion of Ms Lu in his application was caused by the fact that he had passed the English test, gained sufficient points and did not need to rely on Ms Lu. The applicant’s decision was not based on any regret the applicant felt about the provision of bogus documents and incorrect answers.

27. The applicant told the Tribunal that if he is to apply for the visa onshore, he would get another Bridging visa that may or may not have work rights. The Tribunal acknowledges that there is no guarantee that the applicant will be given permission to work, but is mindful that he is eligible for apply for permission to work and, given that the applicant had previously been granted the Bridging visa with permission to work, there is a real possibility that he will be given another Bridging visa with permission to work in the future.

28. The applicant refers to his father’s poor health and states that he did not tell his father of the visa cancellation as he does not want to upset his father.

29. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s 101 and s 103 of the Act and that there are grounds for cancelling the visa.

30. The Tribunal places considerable weight on the fact that the decision to grant the visa was based on incorrect information and bogus documents because the provision of bogus documents and incorrect answers was relevant to PIC 4020. However, the Tribunal also acknowledges, and it is significant in the Tribunal’s view, that (no matter what his motivations were) the applicant did instruct the agent not to go ahead with the application and to prepare the application on the basis of his points only. While that does not excuse the applicant’s initial decision to include a non-existent de facto partner in order to gain additional points, it does mitigate, to a small degree, the applicant’s involvement in the fraud.

31. The Tribunal accepts that the applicant has been living in Australia for a lengthy period and has settled here. The Tribunal accepts that he has formed significant economic, social, employment and other ties in Australia. While the Tribunal accepts that considerable hardship would be caused to the applicant and his partner and other family members if the applicant was to leave Australia, the Tribunal is mindful that this is not the only option available to the applicant and he may choose to seek, for example, a Partner visa in Australia. The Tribunal accepts the applicant’s evidence that there can be no certainty as to the visa grant and the process will entail some hardship, such as cost, delay, meeting visa criteria such as Schedule 3 and PIC 4020 and the uncertainty about work rights. The Tribunal accepts that there is hardship associated with another application but it appears to be of lesser extent than the hardship that would be caused by the applicant’s departure from Australia.

32. In the circumstances of this case, the Tribunal decided to place greatest weight on the applicant’s present circumstances and the hardship that would be caused by the cancellation. Importantly, the Tribunal accepts the evidence that the applicant is the primary carer for his partner, who is about five months pregnant and their evidence is that there is nobody in Australia who is able to take care of Ms Li during the pregnancy and upon the birth of their child. The Tribunal accepts the medical evidence concerning Ms Li (which pre-dates the visa cancellation process) and acknowledges the possibility that the cancellation of the applicant’s visa may affect his wife’s health and well-being. The Tribunal also accepts that if the applicant is to leave Australia as a result of his visa being cancelled, there is a chance that he may miss the birth of his daughter and the initial months (or even years) of her life. The Tribunal has decided to give these factors greater weight.

33. 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 circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. 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