Lin (Migration)

Lin (Migration) [2023] AATA 1052 (12 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Xiaomin Lin
REPRESENTATIVE:  Mr Jia (Jack) Li
CASE NUMBER:  2201720
HOME AFFAIRS REFERENCE(S):          BCC2021/2136946
MEMBER:Kira Raif
DATE:12 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 12 April 2023 at 3:25pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – bogus documents in the visa application – fraudulently altered bank and utilities accounts – applicant married another person – allegations against a migration agent – property ownership in Australia – relationship with an Australian partner – adopting parental responsibilities – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 101-105, 107, 109, 140, 501
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of China, born in October 1988. She was granted a Skilled visa in December 2016 and a Resident Return visa (RRV) in November 2021. In November 2021 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that she did not comply with ss 103 and 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in February 2022. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 28 March and 5 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Tao. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. 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.
Primary decision
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for a Skilled - Independent visa in Subclass 189 on 14 July 2016 as a secondary applicant and a member of the family of Mr Chen. The applicant claimed to be a de facto partner of Mr Chen and stated in the application form that their de facto relationship began on 20 June 2014.
In support of her relationship with Mr Chen, the applicant provided a number of documents, including
a.Commonwealth bank (CBA) statements addressed to her and Mr Chen at the same address in Zetland;
b.Vodaphone bill addressed to the applicant at the Zetland address;
c.A residential tenancy agreement, purportedly signed by the applicant and Mr Chen, for the Zetland address property for the period from June 2014 to June 2015;
d.A statement entitled ‘love story’, purportedly prepared by Mr Chen, where he claimed that from June 2014, he and the applicant had been living together at the Zetland address. Mr Chen referred to a relationship of two and a half years’ length and their intention to get engaged.
e.A statement entitled ‘love story’, purportedly prepared by the applicant, where she claimed that she and Mr Chen had been living together and introduced each other to their respective families. The applicant refers to their intention to get married later in the year.
On 20 December 2016 the applicant and Mr Chen were granted the Skilled visas.
The primary decision record indicates that following the visa grant, the Department had undertaken an analysis of the evidence presented and a Forensic Document Examiner found evidence of intentional alteration to the addresses on the Commonwealth Bank account statements and Vodaphone bills, suggesting these were fraudulently altered. The Examiner determined that one of the CBA statements was in fact sent to a Maroubra address, not to a Zetland address and the other CBA statement was sent to a Parramatta address and not to the Zetland address. The Examiner also determined that the Vodaphone bill was sent to a Kensington address and not to the Zetland address.
In December 2017 the applicant made an application for Australian citizenship. In that application the applicant stated that she was living in Rozelle and prior to that in Rhodes. This is inconsistent with the information in the Skilled visa application where the applicant claimed to have been living in Zetland at the same time. The citizenship delegate wrote to the applicant seeking her comments on the above information. The applicant replied by stating that she had provided utility bills to her migration agent but did not participate in fraudulently altering the documents. The primary decision record indicates that according to the Departmental systems, Mr Chen’s application for the Skilled visa was made using his personal email account and by Mr Chen as a self-registered user (that is, that no agent was used in that application).
It is also noted in the decision record that the applicant presented a Marriage Certificate, issued by the NSW Registry of Births, Deaths and Marriages, showing that she married Mr Wang, who was resident in Rozelle, on 19 December 2016. The applicant’s application for Australian citizenship was refused. The delegate noted that the applicant married Mr Wang one day before she was granted the Skilled visa and she would have been required to give at least a month’s notice before registering her marriage, suggesting that the applicant’s relationship with Mr Chen ended at least a month before she was granted the visa. As the applicant did not inform the Department about this change in her circumstances, the delegate found that she did not comply with s 104 of the Act. The delegate also found the applicant did not comply with s 103 of the Act, having provided bogus documents with her Skilled visa application.
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 ss 103 and 104 of the Act.
The information in the primary decision record indicates that the documents presented by the applicant with her Skilled visa application, such as the CBA statements and the Vodafone bills, had the addresses on them altered. The applicant concedes that she did not live at the addresses specified on these documents. The Tribunal finds that the documents had been altered by a person without authority and therefore, that those documents are bogus documents within the meaning of s 5(1)(b) of the Act.
As the applicant had never lived with Mr Chen, the Tribunal finds that the residential tenancy agreement showing their cohabitation is also a bogus document either because it purports to have been, but was not issued with respect to the applicant and Mr Chen, or because it was altered by a person without authority.
In oral evidence the applicant confirmed that she did not have a relationship with Mr Chen. She said that she met him through the agent and they only met once through the agent’s office and they did not have any relationship. The applicant states that she did not ask the agent to prepare the ‘love story’; she simply wanted to apply for the visa and did not ‘manipulate’ the application. The applicant states that she asked details of the agent but the agent told her it was not her business and she did not know what the agent did. These claims are addressed more fully below. It is sufficient, for the purpose of establishing the breach, that the applicant never had a de facto relationship with Mr Chen and never lived with him. The Tribunal finds that the various documents referred to above were altered by a person with no authority and were bogus documents.
The Tribunal finds that there was non-compliance with s 103 in the way described in the NOICC.
The delegate also found that the applicant failed to comply with s 104 because her relationship with Mr Chen ended before she was granted the visa, signifying a change in her circumstances. However, the Tribunal accepts the applicant’s evidence that she never had a de facto (or any other) relationship with Mr Chen. The Tribunal is of the view that the applicant and Mr Chen falsified the existence of that relationship and provided incorrect answers on the form, in breach of s 101, when providing answers about the existence of such a relationship, but there was never any relationship between the applicant and Mr Chen. As such, there could have not been a change in their circumstances if the circumstances never existed. The Tribunal does not consider there was non-compliance with s 104 in the way described in the NOICC.
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). They are:
The correct information
This is not relevant in this case, noting that the NOICC does not refer to a breach of s 101.
The content of the genuine document (if any)
Genuine documents would not show the applicant residing with Mr Chen and would not evidence the applicant’s relationship with Mr Chen.
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
When applying for the Skilled visa, the applicant relied on meeting the secondary criteria. There is nothing before the Tribunal to indicate that the applicant met the primary criteria for the visa grant, nor that she sought to rely on meeting the primary criteria when making the application.
To meet the secondary criteria, the applicant had to establish that she was a member of the family unit of Mr Chen. The only way in which she could meet that requirement is if the applicant was the spouse or de facto partner of Mr Chen as she was not able to meet any of the alternative criteria for being a member of the family unit. Thus, the applicant’s de facto relationship with Mr Chen was central to her eligibility for the visa grant. If the applicant could not establish that she was the spouse or de facto partner of Mr Chen, the applicant is unlikely to have been granted the visa.
The Tribunal finds that the decision to grant the visa was based, in part but to a significant degree, on bogus documents.
The circumstances in which the non-compliance occurred
In her statement to the Tribunal, the applicant states that she did not have a good relationship with her parents, who did not wish to support her financially and only paid for one semester of her Australian study. She refers to experiencing family violence and her fear of returning to China. She refers to her past jobs and the strong desire to obtain the Australian visa. The applicant refers to financial hardship (having bought a property in Australia and due to a dispute with her employer). The applicant states that she was under pressure from her parents because she was seen as a source of funds and also due to her age and being unmarried. She states she could not return to China.
The applicant states that she met the agent and trusted him and saw no other way of obtaining the Australia visa. When she met her [second] partner, she contacted the agent and wanted to stop the application but that was denied by the agent. The applicant provided to the Tribunal her IELTS test results and a screen shot of a VEVO check.
In oral evidence, the applicant told the Tribunal that she was not able to apply for another visa as she had issues with her employer, so she met the agent who promised to get her the visa but did not give her any details. The applicant submits that she did not know the details of the application and her interactions with the agent were based on trust. The applicant claims, essentially, that she was misled by the migration agent, who was a friend of Mr Chen, and that she gave genuine documents to the agent and was not involved in the fraud. The applicant states that when she tried to stop the process, the agent was not cooperative. The applicant claims she did not intend to provide bogus documents and made an ‘innocent mistake’ by not checking the documents.
The Tribunal finds the applicant’s explanations unpersuasive. The Tribunal does not accept the applicant was ignorant of the basis on which her visa was sought. Her evidence to the Tribunal is that she was not eligible to apply for a Skilled visa because her occupation was not listed. That implies that the applicant had some knowledge about the visa process and Skilled visas in particular. She knew she was not entitled to one.
The applicant ultimately admitted in her evidence to the Tribunal that she knew she was being included in Mr Chen’s visa application as his dependent. She said that she met him once and knew that she did not have a relationship with him. She told the Tribunal that she and Mr Chen took some photographs together to prove their (non-existent) relationship. That is, the applicant knew that the very basis of her visa application was false. The applicant also told the Tribunal that she paid Mr Chen’s visa fees because the agent told her that she had to pay the fee to be included in the application.
Thus, the Tribunal does not accept that the applicant was not aware of the fraud, whether or not the applicant knew (or should have known) that the agent would falsify the documents. The Tribunal finds that the applicant was well aware of the fraud, that she authorised the agent to proceed with the application on the fraudulent basis and that she was complicit in the fraud by taking photographs with Mr Chen, pretending to be in a relationship. It is irrelevant, in the Tribunal’s view, that the applicant was not aware of the agent’s intention to falsify specific documents or that she trusted the agent in circumstances where she was aware that her application was made on a fraudulent basis with her acknowledgement and approval.
The Tribunal is mindful of the applicant’s response to the NOICC alleging agent fraud and the agent acting without authority. The Tribunal does not accept that evidence. As noted above, the Tribunal has formed the view that the applicant was well aware that her application was being made on fraudulent grounds of a non-existent de facto relationship, and gave the go-ahead to the agent to proceed with the application, even if she was not personally involved in the preparation of bogus documents. The Tribunal finds that the agent acted on the instructions of the applicant and with her knowledge and consent.
The applicant submits that there were a number of reasons why she was desperate to stay in Australia. She refers to financial hardship due to her dealings with her previous employer (although the Tribunal notes that she also refers to previously having a great job, meeting her sales target and getting promoted, which might suggest that she did receive a reasonable income in the past). The applicant refers to financial pressure due to having purchased a property as part of her employment offer. The Tribunal acknowledges that evidence but is mindful that it was the applicant’s decision to purchase the property before she was granted a permanent or even a long term visa.
The applicant also refers to her difficult relationship with her parents, their refusal to support her to the extent she felt other students in Australia were supported (her parents agreed to pay for only one semester of her study, expecting her to support herself after that) and the family violence.
The applicant seems to be suggesting that because she was desperate to remain in Australia (for a variety of reasons) and did not wish to return to China, she was justified in obtaining the Australian visa by deception. The Tribunal does not share that view.
As for the applicant’s claim that she tried to stop the process, the Tribunal notes that before intending to stop the process (if true), the applicant agreed for it to go ahead and authorised the making of the application based on a false claim. She provided with her submission to the delegate evidence that she approached the agent in 2017 stating that her relationship with the primary visa applicant ended and asking whether that would affect her permanent visa. It is notable that she has done so well after her visa was granted (and she claims her relationship with her husband started well before that time). Even if the applicant did intend to withdraw her application before the visa grant, the Tribunal does not consider that the applicant’s culpability for the provision of false claims when the application was made is diminished by the fact that she later changed her mind or decided that she had better options.
The present circumstances of the visa holder
The applicant refers to her past and present employment, stating that her company is achieving good profits. She presented in response to the NOICC a number of documents relating to the company operations and profits. The applicant provided to the Tribunal financial records, her personal and business tax records, evidence of her loan and other materials. The Tribunal accepts that evidence.
The applicant refers to her property ownership and she presented to the delegate and the Tribunal evidence of property ownership, including evidence of the loan agreement. The Tribunal accepts that evidence.
In her submission to the delegate, the applicant refers to her relationship with an Australian partner and their desire to have a child together. The applicant’s evidence is that she had applied for the Partner visa but that application was refused on the basis of PIC 4020 and she now has a case with the Tribunal but is yet to notify the Tribunal that the relationship had ended. The applicant told the Tribunal that the relationship ended because of her visa issues and her unstable mental state and her partner blamed her for it and for the fact that they could not have a child together. The Tribunal acknowledges the applicant’s evidence that the previous relationship has ended.

The applicant refers to her current relationship with another Australian partner, which started in late 2022, and she states they moved in together in January 2023. Mr Tao gave oral evidence to the Tribunal during the second hearing. He spoke about the close relationship between him and the applicant and their common goals and perceptions. He said that they have been living together since about December 2022 and plan to get married in the second half of 2023. Their baby is due in December 2023. For the purpose of this review, the Tribunal accepts that the applicant and Mr Tao may be in a genuine relationship, that they intend to marry and that they are expecting a child.
The applicant states that her partner’s former spouse left him when their child was only two and she has taken on the parental role in relation to the child. The applicant states that if she is to leave, the child will feel abandoned again. These claims are addressed more fully below. The applicant refers to her and her partner suffering past relationship trauma. She provided to the Tribunal a number of family photographs. The applicant’s partner, Mr Tao, also gave oral evidence to the Tribunal and explained the circumstances of their relationship. The Tribunal is prepared to accept that evidence, although the Tribunal is mindful that the relationship has been in existence for only a brief period of less than six months.
The applicant states that her partner raises a child from his previous relationship and his father has low blood pressure. She states that his family relies on him and he cannot relocate to China. The Tribunal acknowledges that evidence, although the Tribunal is also mindful that there is no requirement for the applicant’s partner to relocate to China, should the applicant make the decision to apply for another Partner visa from overseas in the future (acknowledging that this could take time).
The applicant refers to her desire to have a child and fertility issues. The applicant provided to the Tribunal her medical records and evidence that she is due to undergo day surgery in April 2023. The applicant refers to her desire to become a mother in the future, stating that she has been punished enough. The Tribunal accepts the medical evidence and accepts that the applicant is due to have a procedure and that her condition may affect her fertility. On 3 April 2023 the applicant provided to the Tribunal evidence of her pregnancy, which appears to be in the very early stages. The Tribunal accepts that evidence and acknowledges that the applicant’s fertility does not seem to have been affected by the visa issues.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In her declaration of 20 December 2021 in response to the NOICC, the applicant refers to her de facto relationship ending and her attempts to withdraw the Skilled visa application. The covering letter from the applicant’s representative in response to the NOICC also refers to the applicant‘s previous de facto relationship. However, the applicant’s evidence to the Tribunal is that she never had a de facto relationship with Mr Chen. The fact that the applicant continued to refer to a de facto relationship in response to the NOICC suggests that the applicant continued to be untruthful in her dealings with the Department.
The applicant told the Tribunal that she was not properly advised by her previous agent. It is unclear to the Tribunal how the applicant’s suggestion in response to the NOICC that she was in a relationship with Mr Chen could be blamed on the agent.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance in addition to those discussed in these reasons.
The time that has elapsed since the non-compliance
The application for the Skilled visa was made in July 2016. Close to seven years has passed since the non-compliance and the Tribunal acknowledges it is a lengthy period.
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 her involvement with community organisations and events. She refers to being involved in organising charity events and making various donations and she provided to the Tribunal a number of photographs relating to these. The applicant states that her company supports Australian businesses and provides care to homeless animals. The applicant states that she volunteers at a nursing home. She refers to her personal and company taxes and the contribution she makes to other businesses through the operation of her company.
The applicant presented a number of supporting statements. The Tribunal accepts that the applicant has made a contribution to the community through her business and other activities.
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
There are no persons whose visa would be 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 refers to her relationship with her partner and her partner’s child and states that he needs her to stay in Australia to look after the child. The applicant claims she has parental responsibilities in relation to her partner’s son and states that if she is to leave Australia, the child will feel abandoned again. The applicant refers to the child’s mental health and the effect of not having a mother. She states that the child has problems with socialising due to having no mother and he is now better since she has adopted the responsibilities of a mother. The applicant refers to providing better lunchboxes to the child and paying more attention to the little details and states that as a result, the child is more confident.
The Tribunal is mindful that the applicant’s evidence is entirely unsupported by probative and independent evidence, such as, for example, a psychologist’s assessments or any assessment by health or education professionals or any statement from the child’s school officials regarding the child’s welfare and well-being and concerning the child’s relationship with the applicant. There is no evidence from third parties about the effect on him of his relationship with the applicant and of any separation (should the applicant be required to leave Australia).
The applicant’s evidence is that prior to her relationship with Mr Tao, he had taken care of the child. Mr Tao told the Tribunal that his parents are living with him and had been looking after his son before he met the applicant. He states that his son and his parents have a good and close relationship. He told the Tribunal that his parents are visiting China for a short period but intend to return to Australia and will continue to live with him. Mr Tao said that he was the one attending his son’s school activities and taking care of the child.
There is no evidence before the Tribunal that the care offered by the child’s father and grandparents is inadequate or not in the child’s best interests. There is nothing to suggest that if the applicant is to withdraw her support, for example, because she has to leave Australia (and the Tribunal is mindful that the applicant has an ongoing application before this Tribunal in relation to her Partner visa, which means that she does not have to leave Australia immediately irrespective of the outcome of this review), the child will not receive adequate and meaningful support from other sources such as his father and grandparents, as was the case for many years before. The Tribunal is also of the view that even if the applicant was to leave Australia, she and the child could maintain some form of relationship by electronic means and, importantly, she could continue to provide emotional support to the child whether or not she lives in Australia. The Tribunal accepts that the nature of such relationship will not be the same and that the applicant may not have the opportunity to provide physical and other support that can only be provided if she remains in Australia, but as noted above, the applicant has not satisfied the Tribunal that the child will be denied the care and support that he needs.
In the circumstances, the Tribunal is of the view that the child’s best interests will only be marginally affected if the applicant’s visa is cancelled. The Tribunal acknowledges that the best interests of the child (which may be that the applicant’s visa is not cancelled) are a primary consideration.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations
The applicant refers to having experienced family violence in the past and claims that she is scared to return to China. She states that given her age, her parents would try to marry her to someone and would also demand money from her. She states that her father would find her no matter where she lived and would wish to kill her.
The applicant’s claims are entirely unsupported by any probative evidence. There are no police or other reports (or even statements from witnesses) to support the applicant’s claim that she experienced violence from her parents. The applicant referred to having scars but there is no way for the Tribunal to determine what caused these scars. There is no evidence that the applicant’s father made any attempt to harm her during her past visits to China (she claims she tried to stay away from her parents). There is no probative evidence that the applicant’s father had ever expressed any intention to kill her or that he had made any attempt to do so. The Tribunal finds the applicant’s claim that her father would wish to harm or kill her to be far-fetched.
On the limited evidence before it, the Tribunal does not accept the applicant’s evidence that her family would wish to harm her if she was to return to China. The Tribunal does not accept that the applicant would be forced to marry against her will, noting in particular her evidence that she plans to marry Mr Tao. The Tribunal does not consider that the applicant will experience persecution upon return to China.
The Tribunal is also guided by the principles enunciated by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17. The court stated at [29]–[30]:
Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law, again the claim may be considered by the decision‑maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.
The Tribunal is mindful that the applicant is eligible to seek a Protection visa, if she genuinely believes she cannot return to China. In the circumstances, the Tribunal does not consider that Australia’s protection obligations would be breached if the applicant’s visa is cancelled.
In relation to the principles of family unity, the applicant’s partner resides in Australia and the Tribunal is mindful that the applicant may be eligible to apply for a Partner visa (even if that application may need to be made offshore and she would be subject to an exclusion period). The cancellation of the applicant’s visa would not preclude the applicant’s relationship with her partner, even if it is likely to lead to a possibly lengthy period of separation.
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 visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion she would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas she could validly apply for. The applicant may be subject to an exclusion period if she was to apply for a visa offshore. The applicant claims that even after the exclusion period expires, she would have limited options in relation to the types of Australian visas she could apply for, and the Tribunal acknowledges that this would be the case, although the Tribunal is also mindful that in most instances, the exclusion period is waivable. If the visa is cancelled, the applicant would lose the entitlements she had acquired as a permanent resident of Australia.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant refers to the length of her residence in Australia and her study in Australia. She states that her friends, social activities and lifestyle are all in Australia and she ‘cannot imagine’ a life in another country as she is accustomed to the Australian way of life. The Tribunal accepts that the applicant is settled in Australia and that her friends are here, as well as business commitments. The applicant states that if she is to leave Australia, she would be deprived of her partner, friends, family and her business. The Tribunal accepts that evidence and accepts that the applicant is well settled in Australia, has family, business, financial and other ties in Australia and that she is used to life in Australia.
The Tribunal accepts that considerable hardship would be caused to the applicant if she was required to leave Australia. However, the Tribunal is of the view that such hardship would be mitigated, to an extent, by the fact that if the applicant is in a genuine relationship with an Australian partner she will be eligible to seek a Partner visa in the future, even if that application must be made offshore and may take some time and may require her to live overseas for a period of time. The existence of that relationship means there is a real chance that the applicant may be permitted to return to Australia in the future.
In her submission to the delegate, the applicant submits that it would be of no benefit to cancel her visa as she had already made the application for a Partner visa onshore, and is entitled to a permanent visa. Her evidence to the Tribunal is that this application was unsuccessful as the applicant did not meet PIC 4020 and her case is presently before the Tribunal. She also told the Tribunal that the relationship on which the application was based has ended, although she has not yet informed the Tribunal of that. The applicant’s evidence would indicate that she may not be entitled to the grant of the Partner visa for which she had previously applied and in any case, the Tribunal does not consider that the potential entitlement for one visa justifies her holding another visa to which she was not entitled.
The applicant repeatedly told the Tribunal that unlike other students, she had to lead a “painful life” because her family did not support her financially in the past. With respect, there are plenty of students and young adults who travel to Australia with limited or no financial support from parents and who may indeed be expected to support their family members overseas. The Tribunal does not accept that the applicant has had a painful life because her parents refused to offer her financial support. The applicant also claims that her parents consider her to be a source of money for them and would expect her to give them money. As noted above, this claim is entirely unsupported by any evidence. For example, there is no evidence that the applicant had provided financial support to her parents in the past (which might be expected if the applicant’s claim that her parents expect her to pay them is true). The Tribunal does not accept the applicant’s evidence that her parents expect her to support them financially. The Tribunal does not accept this will cause hardship to the applicant.
In her evidence to the Tribunal the applicant confirmed that her application for the Partner visa was refused due to not meeting PIC 4020 and while she intends to apply for another visa offshore, it may be a long time before the application can be made and granted. The Tribunal accepts that if the applicant was to leave Australia to make the application for the Partner visa offshore due to the operation of s 48, it may lead to a potentially lengthy separation from her partner and his child. The Tribunal accepts that this may cause significant hardship to the applicant and others.
The applicant refers to her partner’s previous relationship breakdown and states that he has not had any relationships in recent years and it was hard for him to ‘open up’, and if she is to leave Australia, that would affect her partner and the child. The applicant refers to having a good relationship with her partner’s child and to Mr Tao’s family responsibilities. These matters are addressed elsewhere and the Tribunal generally accepts that the separation of the applicant from her family in Australia may cause hardship to the applicant and others.
The applicant submits that if her visa is cancelled, she may only be eligible to hold a Bridging E visa, which would prevent her from travelling, and that would affect her business. The Tribunal accepts that the applicant may not be able to travel if she holds a Bridging E visa.
The applicant states that given her age and her partner’s age, and the fact that she would be subject to a three year exclusion period, and her partner cannot relocate to China, her dream of having a child with her partner would be ruined. As noted above, given the applicant’s current pregnancy, the Tribunal does not accept that evidence.
The applicant states that she no longer has a home in China and her parents are ‘indifferent’ to her situation. These claims are unsupported by any evidence. However, the Tribunal is prepared to accept, and to give the applicant the benefit of the doubt, that she may not receive practical support from her parents if she is to return to China. The Tribunal accepts that she may not have a home to live in. However, the Tribunal is mindful that the applicant appears to have significant assets in Australia, including business and property interests, which may be liquidated, if necessary. There is little evidence as to whether the applicant’s present partner may be able to provide her with support, including financial support, if she is to live in China. (He told the Tribunal that his parents own a property in China and could offer short-term accommodation to the applicant but not on a long term basis. Mr Tao was unable to offer a persuasive explanation as to why his parents would refuse to offer their existing accommodation to the applicant on a longer term basis, other than stating that it is his parents’ wish that he and the applicant live together.) The Tribunal is mindful that the applicant had been able to establish herself in Australia, having only limited English and, on her own evidence, very limited support from her parents. She had been able to find accommodation, employment and deal with daily tasks. There is no apparent reason why the applicant could not do the same if she is to return to China, even if her parents will refuse to support her and even if she receives no support from others.

The applicant refers to her pregnancy and states that if her child is born overseas, the child would not be entitled to Australian citizenship (noting that Mr Tao is a permanent resident and not a citizen of Australia) and it may take time for the child to return to Australia, either by being included in her future Partner visa application or if he is to apply for a Child visa. The applicant submits that the child would be disadvantaged. The Tribunal acknowledges that if the child is born overseas, the child may not be entitled to Australian citizenship, although the Tribunal also notes that the applicant presently has a case with the Tribunal relating to the Partner visa refusal and given the current processing times, there is a real chance the child will be born in Australia if the applicant chooses to remain here during the processing of her application by the Tribunal. Even if the child is to be born overseas, the applicant has not established that the child will be disadvantaged, particularly if the child will be able to return to Australia in the future.
The applicant provided a number of character references from her friends. The Tribunal is prepared to accept that those who provided statements believe the applicant to be a good person, although it is not apparent whether they are aware of the fraud associated with the applicant obtaining Australian permanent residency.
The applicant states that she has been honest in her subsequent dealings with the Department and provided her genuine addresses. The applicant states that she has been truthful in all her interactions with the Tribunal. The Tribunal accepts that the applicant has been truthful in her dealings with the Tribunal but the Tribunal is also mindful that the applicant had not informed the Department of the fraud at any time during the processing of her application for permanent residence. In her response to the NOICC, the applicant stated in her declaration that her de facto relationship ended, thus perpetuating the initial fraud and the falsity of her claims of having a de facto relationship with Mr Chen. The Tribunal does not accept the applicant’s claim that she was regretful about her past conduct, having repeated the false information as recently as in 2021.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s 103 of the Act and that there are grounds for cancelling her visa.
The Tribunal accepts that there are strong reasons why the visa should not be cancelled. The applicant is well settled in Australia and has significant ties to Australia including business and property interests, a current relationship, social and other ties. The Tribunal also accepts that significant hardship would be caused to the applicant if she was required to leave Australia, noting her significant ties to Australia and the absence of such ties in China. The Tribunal accepts that the applicant has been residing in Australia for a lengthy period and that she has limited support and options available in China. The Tribunal also accepts that the applicant has made a contribution to the Australian community. The Tribunal accepts that these are strong reasons that weigh against the cancellation.
The Tribunal accepts that if the applicant is to leave Australia, she may be separated from her partner for a lengthy period, noting that the applicant is subject to the (waivable) exclusion set out in PIC 4020 in relation to a future visa application. The Tribunal accepts that this may cause significant hardship to the applicant and her partner and possibly some hardship to Mr Tao’s child. In particular, the Tribunal accepts that there is a risk that if the applicant is to leave Australia as a result of her visa being cancelled, she may be separated from her partner at the time of the child’s birth (noting, however, that her partner is able to travel to China and also that the cancellation of the visa need not lead to the applicant’s immediate departure from Australia as she has another outstanding application before the Tribunal). These factors weigh heavily in favour of the cancellation being set aside.
The Tribunal accepts that a significant period of time has passed since the non-compliance.
The Tribunal has formed the view that the cancellation of the visa would not breach Australia’s non-refoulement obligations. The Tribunal accepts, for the purpose of this review, that the applicant has parental responsibilities in relation to her partner’s child, while acknowledging that this relationship has been a fairly brief one and noting that the parental responsibilities were previously fulfilled by the child’s father and grandparents and they can continue to fulfil these irrespective of the applicant’s involvement and place of residence. Nevertheless, even if it is in the best interests of the child that the applicant remains in Australia, the Tribunal gives this significant weight against the cancellation. It is a primary consideration but not a determinative one.
However, in the circumstances of this case, the Tribunal has decided to place greater weight on other factors. First, the Tribunal places significant weight on the circumstances in which the non-compliance occurred. It is not the case that the applicant made an innocent mistake or was unaware of what was being done on her behalf. While the applicant seeks to minimise her involvement in the fraud by placing blame on the agent, the Tribunal has formed the view that the applicant was fully cognisant of the fraud and permitted it. The Tribunal has found that the applicant was aware that she was included in the application of another person as his de facto and that this relationship did not exist. The applicant took positive steps to create false documents such as social photographs with Mr Chen. She authorised the fraud and was prepared to pay the fees for the benefit she sought to obtain. It is irrelevant, in the Tribunal’s view, that the applicant may not have known the exact details of the documents being falsified or that she later attempted to stop the process. In addition, the applicant’s background (she refers to family violence and being fearful of returning to China) does not justify the applicant’s engagement in the fraud. It is not in dispute that the applicant did intentionally engage in fraud and was willing to do so in order to obtain the visa.
The Tribunal places greatest weight on the fact that the applicant was not entitled to the Skilled visa in the absence of a de facto relationship with the primary applicant. That is, the decision to grant her the visa was based on bogus documents and there is a strong likelihood that the applicant would not have been granted the visa if it was known that she was not the de facto partner of Mr Chen. That consideration weighs very strongly in favour of cancellation.
The Tribunal also places some weight on the applicant’s subsequent dealings with the Department. The applicant continued to provide false information in her response to the NOICC (by referring to her de facto relationship with Mr Chen ending) and she sought to blame the agent for the provision of that information, which was clearly false. The applicant’s attempt to minimise her own responsibility for providing the incorrect information in response to the NOICC suggests to the Tribunal that the applicant’s expression of remorse is not genuine and that as recently as in her response to the NOICC the applicant was willing to be untruthful in order to achieve a migration outcome.
Overall, and while acknowledging that there are strong reasons why the visa should not be cancelled, the Tribunal has decided to give greatest weight to the factors that favour the cancellation, most notably the circumstances in which the non-compliance occurred, the fact that the decision to grant the visa was based on bogus documents, and the applicant’s subsequent provision of false information in response to the NOICC.
Conclusion
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
Kira Raif
Senior Member

[2023] AATA 1052

12 April 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction