Liu (Migration)

[2022] AATA 2088

Liu (Migration) [2022] AATA 2088 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yishi Liu

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2117092

HOME AFFAIRS REFERENCE(S):          BCC2019/2823930

MEMBER:Kira Raif

DATE:15 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

Statement made on 15 June 2022 at 6:01pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 190 Skilled - Nominated – incorrect information in the visa application – bogus documents – member of the family unit – de facto relationship did not exist – no social connections in home country – family eligibility for visas – employment prospects in China – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 48, 97-105, 107-109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4020; r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in April 1984. She was granted the Skilled visa on 18 January 2017. In October 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with ss. 101 and 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled in November 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse Mr Hu. 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

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.

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.

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

7. 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.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application for a Skilled visa on 6 January 2017. In that application the applicant included Mr Jingtao He as her de facto partner and stated on the application form that their de facto relationship began on 9 December 2015. The applicant gave Mr He’s details in the application form and completed a declaration that all the information on the form and attachments was complete and correct in every detail.

9. In support  of her claimed relationship with Mr He, the applicant provided with her application a number of documents. These included

   a.four telephone bills from Vodafone, addressed to the applicant at a Haymarket address, issued between December 2015 and March 2016,

   b.two telephone bills from Vodafone, addressed to Mr He, to the same Haymarket address, of the period between December 2015 and January 2016,

   c.two Commonwealth Bank account statements addressed to Mr He at the Haymarket address for the period from December 2015 to March 2016,

   d.a 2016-17 car insurance certificate issued by NRMA, addressed to Mr He at a Waterloo address.

10. The applicant and Mr He were granted the Skilled visas on 18 January 2017. The primary decision record indicates that following the visa grant, the Department had carried out an investigation concerning the above documents, which suggested that these had been altered and the delegate concluded that these were bogus documents. The delegate noted that the Vodafone phone bills addressed to the applicant had in fact been addressed to an address in Carlingford and not in Haymarket and the Commonwealth bank statements addressed to Mr He were in fact sent to an address in Rhodes and not the address in Haymarket. It is noted that Mr He’s current partner also gave the Rhodes address in her dealings with the Department. The delegate refers in the primary decision to the examination of the car insurance certificate which showed the Waterloo address on the front page but the Rhodes address as the address where the car was kept and that was the address provided by Mr He’s spouse as her residential address. The delegate concluded the car insurance certificate was also a bogus document.

11. In her response to the NOICC the applicant claims, essentially, that she entrusted her application to a migration agent and had only provided genuine documents to the agent. The applicant stated that she did not see the content of the application and any bogus document would have been fraudulently made by the agent.

12. The applicant told the Tribunal in oral evidence that after coming to Australia, she completed her Masters degree and at the time she was involved in a car accident which caused her a lot of pain. She also had to prepare for the exams. She was getting medical treatment after the accident and seeing a psychologist and was going through pain and suffering. She claims she had “no energy” to prepare the visa application and approached a migration agent. The applicant states that she did not know about the visa processes and at the time had ‘mental problems’ and did not know what to do, so she trusted the agent. She claims he had sent documents to the agent and did not know the agent would alter the documents. The applicant states that she realises she should have checked the authenticity of the documents and regrets what she has done. The applicant told the Tribunal that she met Mr He a few times and they were friends but not in a relationship. The applicant confirmed that she was not in a de facto relationship with Mr He when she applied for the visa.

13. Having regard to the applicant’s evidence, the Tribunal finds that the applicant did not have a de facto relationship with Mr He from December 2015. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act. The Tribunal further finds, having regard to the information in the primary decision record, that the Commonwealth bank records and the Vodaphone phone bills are bogus documents because the addresses on these documents had been altered by a person without authority. The Tribunal finds that the applicant has not complied with s. 103 of the Act. 

    Should the visa be cancelled?

14. 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).

15. 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

16. The correct information is that the applicant did not have a de facto relationship with Mr He.

    The content of the genuine document (if any)

17. The genuine documents would not show the applicant and Mr He residing at the same address.

    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

18. In her response to the NOICC the applicant submits that she met the primary requirements for visa grant and did not rely on the partner points. The applicant submits that the decision to grant her the visa was made on the basis of her meeting the primary criteria whether or not she included the secondary applicant and that should be given significant weight. The applicant refers to another Tribunal decision where this issue was considered. The applicant also repeatedly told the Tribunal that  there was no benefit for her to include Mr He in her visa application and she did not need to rely on him to meet the visa criteria. The Tribunal does not accept the applicant’s submission.

19. The Tribunal accepts that the applicant did not rely on partner points and did not need to include Mr He in her visa application in order to meet the points score. The Tribunal accepts that if she did not include Mr He in her application, it is possible that the applicant may have been granted the visa. However, she did include Mr He in her application and once she included the secondary applicant in her visa application, the applicant’s evidence that she did not (and did not need to) rely on Mr He no longer applies. This is because the applicant would have been required to meet PIC 4020 and it is not in dispute that the applicant had provided bogus documents and false or misleading information in that application. Therefore, it is not correct to state that she would have been granted the visa on the basis of correct information only. Having included Mr He in the visa application, the applicant gave with her application bogus documents and false or misleading information and there is a real likelihood that if this was known to the decision-maker, the applicant may not have met PIC 4020(1).

20. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and bogus document.

    The circumstances in which the non-compliance occurred

21. The applicant submits in her evidence to the delegate that she appointed a migration agent and gave only genuine documents to the agent and did not see the final documents that were given to the Department. She claims she was unaware of the fraud. In her evidence to the Tribunal the applicant outlined her circumstances at the time. The applicant told the Tribunal that even though they were not in a relationship with Mr He, she thought the application would be processed faster if she had a de facto partner and that is why she included Mr He in her application.

22. The applicant’s evidence is that she did not believe she was in a de facto relationship with Mr He. She claims she believed it would be quicker to get the visa with a de facto partner and included Mr He for that reason. The representative explains that as the applicant’s age was about to change, she may have thought it would be helpful for the applicant to have a de facto partner, who could have contributed points in case points were needed. That is, the applicant had deliberately and knowingly provided false information about her de facto relationship with Mr He with the sole purpose of getting a benefit (obtaining the visa faster).

23. The Tribunal is prepared to accept that at the time the applicant was seeing a psychologist and undertaking physiotherapy but tap has not established, and the Tribunal does not accept, that her physical and mental health at the time affected her decision-making capacity. The applicant appears to have made a reasoned and what she would have perceived as rational decision to include a de facto partner in case she needed the additional points in her visa and to expedite the processing of the application.

24. The applicant submits that she did not see the documents prepared by the agent and she only gave the genuine documents to the agent. The applicant submits that it was only after she received the NOICC that she saw what documents were submitted. The Tribunal is prepared to accept that the applicant was not personally involved in the preparation of the bogus documents. However, the applicant admits that she did not have the de facto relationship with Mr He and she was aware that he was included in the application as her de facto partner. In these circumstances, it is not sufficient to state that it was the agent who prepared the bogus documents and that she trusted the agent. If the applicant was aware that the application contained false claims of the de facto relationship, the Tribunal is satisfied that  the applicant gave the go-ahead to the agent to provide false information and would have been aware of the real possibility of bogus documents to prove her de facto relationship, whether or not she was aware of the specifics. The applicant concedes in her evidence to the Tribunal that  she could have ‘guessed’ that bogus documents would be provided with the application.

25. The applicant also told the Tribunal that she took photographs with Mr He to be included with the application. She said that she followed the instructions from the agent. The applicant would have known that the photographs were submitted to prove her relationship with Mr He, which she knew did not exist. This also shows the applicant’s active involvement in the perpetration of the fraud.

26. The Tribunal is prepared to accept that the applicant may not have seen the bogus bank records and phone bills but the Tribunal finds that the applicant’s culpability is not diminished because she was aware of the fraud, had authorised it and took positive steps to perpetrate the fraud by taking photographs with Mr He as evidence of the non-existent relationship.

    The present circumstances of the visa holder

27. The applicant states in her response to the NOICC that she came to Australia in 2013 to study and in that time has settled in Australia. She notes that she has purchased a property which is rented, and had purchased a van with the purpose of starting a moving business. The Tribunal accepts that evidence.

28. The applicant refers to the study she has completed in Australia and her intention to continue her education. The applicant states that she has been working in the financial field since 2017 and has never worked in China and has no financial connections there, while having strong links in Australia. (The applicant’s evidence to the Tribunal is that she did work in China.) The applicant states that if she is to leave Australia, it would cause her financial hardship. That evidence is addressed more fully below.

29. The applicant states that she has no social connections in China and that her social connections are all in Australia. The applicant states that her grandparents have passed away and she has sponsored her mother for the Australian visa. The applicant states that she has no relatives in China and no social links to China and leaving Australia would deprive her of all social connections. The Tribunal accepts that the applicant has established strong social links in Australia and that such links may be stronger than her links in China but the Tribunal is of the view that the applicant will be able to re-establish herself in China, should she leave Australia as a result of her visa being cancelled. The Tribunal is mindful that the applicant had no difficulty establishing herself in Australia when she entered Australia, had no links here, had limited language and exposure to Australian culture. If she was able to establish herself in a new country, in the Tribunal’s view, the applicant would be equally able to re-establish herself in China, even if it takes time and causes the applicant some hardship, at least initially.

30. In her submission to the Tribunal of 7 June 2022 the applicant provided medical evidence relating to her mother, evidence of a recent course completion at the University of Sydney and evidence relating to her own medical procedure. On 14 June the applicant provided to the Tribunal a medical record relating to her consultations. There is evidence before the Tribunal to indicate that the applicant is about 11 weeks pregnant. The Tribunal accepts the evidence in the medical reports.

31. The applicant told the Tribunal that mother made an application for the Parent visa onshore and she had also sponsored her husband for the Partner visa. Mr Hu told the Tribunal that he has been granted the subclass 820 visa and is waiting for the permanent visa. The applicant told the Tribunal these applications are dependent on her having the visa. The Tribunal accepts that evidence and accepts that if the applicant’s visa is cancelled, the cancellation is likely to affect her husband’s and mother’s eligibility for their visas.

32. The applicant told the Tribunal that due to her age, it would be difficult for her to find a job in China. She also told the Tribunal that she has been doing ForEx trading in Australia which is not allowed in China. However, the applicant’s evidence to the Tribunal is that she holds an undergraduate degree from China and has some work experience in China. The applicant presented no evidence of having sought employment and of having been denied or unable to find employment in China. On the limited evidence before it, the Tribunal does not accept that the applicant would be unable to find employment if she was to live in China and even if the applicant cannot perform the specific type of work she has been doing in Australia, the Tribunal  is not satisfied she would be unable to find other types of employment.

33. The applicant refers to having severe allergies and states that her health would suffer if she was to live in China. The applicant states that she had the allergies since she was a child and was required to take medication, which she could not take for a long time. Despite the lack of probative supporting evidence in relation to these claims, the Tribunal is prepared to accept that the applicant has allergies and was taking medication in China. Her evidence to the Tribunal is that she was able to get medication, without prescription, easily and the applicant’s allergies seem to have been managed through medication. The Tribunal is of the view that, in these circumstances, the applicant will again be able to manage her health if she was to live in China and the applicant has not satisfied the Tribunal that this would not be the case.

34. The applicant refers to looking after her father for many years and to her father’s persecution during the Cultural Revolution and states that she has always had limited contact with relatives on her father’s side. After her parents married, the applicant states that her mother’s relatives also had limited contact with her and nobody helped them when her father fell ill. The applicant claims that she has bad memories of China and came to Australia to escape that hardship and she does not want to return to China. The Tribunal is prepared to accept the applicant’s evidence and accepts that the applicant’s preference is to live in Australia. The applicant states that due to limited family support, she has no family connection to China and that is why she chose to have a new life in Australia. Even if that is the case, the Tribunal is of the view that the applicant is an adult who is capable of living independently and looking after herself without the family support (noting, in particular, that the applicant may have the support of her partner and her mother). The Tribunal does not accept that the claimed lack of family support in China would cause hardship to the applicant. The Tribunal accepts that the applicant prefers to live in Australia but does not consider this to be a strong consideration against the cancellation.

1. The applicant refers to the additional study she has completed and she told the Tribunal that she is considering changing her career in the future or engaging in a business in the future. The applicant states that her life is in Australia and she wants to live in Australia. The Tribunal accepts that the applicant genuinely believes that.

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

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

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

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

   The time that has elapsed since the non-compliance

4. The application was made in January 2017. Approximately five and a half years passed since the non-compliance.

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

5. There are no known breaches of the law.

   Any contribution made by the holder to the community.

6. The applicant refers in her written evidence to her experience and qualifications in customer support and as a CFD broker and in IT. She claims she is a highly skilled individual and an asset to the community. The applicant presented character and other refences from her employer. The Tribunal accepts that the applicant has, or is able to, contribute to the community because of her education and skills. The Tribunal also acknowledges the applicant’s evidence about her involving in sporting and other community activities.

7. The applicant also refers to her contribution through support and assistance to travellers and other voluntary activities and she said she has been actively involved in arranging sporting activities locally and with friends. She told the Tribunal that she wants to continue to do that after she delivers her baby. The Tribunal accepts that evidence and accepts that the applicant contributes to the community through her involvement in, and organising various community activities.

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 Mr He may be subject to consequential cancellation. The applicant told the Tribunal that Mr He is settled in Australia and may also suffer hardship if his visa is cancelled. The evidence from the applicant’s representative is that Mr He has a separate application before the Tribunal and his circumstances maybe considered as part of that process. The Tribunal does not consider that the applicant herself would be adversely affected by the cancellation of Mr He’s visa.

10. The applicant refers to having sponsored others for the Australian visas and their visas may also be affected (but not consequentially cancelled) if the applicant’s visa is cancelled.

    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.

11. There are no children who would be affected by the cancellation of the applicant’s visa.

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

12. The applicant told the Tribunal that she would have nowhere to live in China, she cannot have any support from relatives, nor can she contact her relatives for support. The applicant states that they cannot live where her husband’s family lives and she also refers to her health issues. These matters have been addressed elsewhere and the Tribunal does not consider these give rise to Australia’s non-refoulement obligations. The Tribunal is also mindful that the applicant is eligible to seek a protection visa in Australia, if she believes her circumstances engage Australia’s protection obligations. The Tribunal finds that Australia’s non-refoulement obligations do not arise in this case.

13. The applicant’s partner and mother live in Australia but neither holds a permanent visa and have no right to remain in Australia permanently. In these circumstances, Tribunal does not consider that the cancellation of the applicant’s visa would breach the 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.

14. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and may be subject to detention or removal from Australia. There is nothing to indicate the applicant may be subject to indefinite detention. The applicant will have limited opportunities to apply for other visas onshore due to operation of s. 48 and may be subject to an exclusion period in relation to future visa applications. The cancellation of the applicant’s visa will affect her eligibility to sponsor others and if the applicant is not a permanent resident, she would be unable to acquire the Australian citizenship. She would also lose her entitlements as a permanent resident of Australia. 

15. The applicant’s evidence to the Tribunal is that she has sponsored her mother and her husband for Australian visas and if her visa is cancelled, they cannot get the Australian visas. The Tribunal accepts that would be the case.

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

16. In her submission to the delegate the applicant states that it would be hard for her to find employment in China, given the nature of her employment in Australia and lack of experience and training in China. As noted above, the Tribunal is prepared to accept that the applicant may find it difficult to find the same type of work, or to find certain types of work in China. However, the applicant has not satisfied the Tribunal that she would be unable, or find it difficult to find gainful employment in general, that is, employment that may be in a different field. There is no probative evidence at all before the Tribunal to support the applicant’s assertions that she would face discrimination because of her age or Australian experience or because of any other factor.

17. The applicant refers to financial hardship if she was to leave her present employment, noting her loan obligations and obligations to provide for her family. The Tribunal does not accept that evidence in the absence of any documentary evidence about the applicant’s (and to the extent relevant, her family’s) assets and liabilities and the applicant’s contribution, the applicant’s savings and her capacity to earn in the future. The Tribunal does not consider that the loss of employment in Australia (if that is the consequence of her visa being cancelled) is in itself sufficient to establish that the applicant will be unable to find different employment, or that she has no assets or savings or capacity to access funds that could help meet her financial obligations. That is, the Tribunal does not accept on the evidence before it that the cancellation of the visa would necessarily result in the financial hardship to the applicant and would render her incapable of meeting her financial obligations. The applicant has not presented adequate evidence to the Tribunal to support these assertions.

18. The applicant states in her response to the NOICC that due to Covid outbreak, it is unsafe for her to travel internationally. The Tribunal is mindful that the applicant’s submission was written some months ago and the present situation may be somewhat different. The Tribunal is also of the view that if the applicant is unable to travel, she may be eligible to seek a Bridging E visa on departure ground to enable her to delay travel or she may be eligible to seek a Medical Treatment visa if she requires medical treatment or cannot travel due to her medical circumstances.

19. The applicant refers to the various activities she has been able to engage in in Australia and claims that these would not be available to her in Australia. The applicant presented no evidence as to what may be available to her in China and the Tribunal is not prepared to accept the applicant’s claim that she would not be able to engage in various sporting or other activities in China.

20. The applicant provided with her response to the NOICC evidence of having sought fertility – related treatment and of her previous pregnancy and miscarriage, her mother’s medical record, evidence of a car purchase, loan agreements and a number of character references. The applicant presented to the Tribunal evidence of her ongoing pregnancy and other medical records. The Tribunal acknowledges and accepts the evidence in these reports.  

21. The applicant repeatedly told the Tribunal that she had made a mistake which she had regretted and she asks to be given another chance. The Tribunal finds that expression of regret opportunistic because it was only stated when the applicant was facing the cancellation of her visa. There is nothing before the Tribunal to indicate that the applicant took any steps to rectify the provision of incorrect information or bogus documents during the processing of her Skilled visa, nor since its grant and before the NOICC was issued and her evidence to the Tribunal is that she was ‘struggling’ and afraid to approach the Department and still considering it. The Tribunal is not satisfied the applicant would have taken any positive steps to rectify the situation or inform the Department of the fraud if the NOICC was not issued.

22. The applicant told the Tribunal that it has been difficult for her to fall pregnant and after she has a baby, she may wish to try again. The applicant told the Tribunal that it may be difficult to access a fertility doctor in China and she may have to wait and ‘it is not a good environment’. Again, these claims are entirely unsupported by evidence and the Tribunal is not satisfied on the limited evidence before it that the applicant would be unable to access fertility treatment in China. The Tribunal is also mindful that should the applicant wish to have access to Australian fertility treatment in the future, she may be able to seek a Medical Treatment visa at that time.

23. The applicant also repeatedly told the Tribunal that she did not know anything about the Australian immigration laws and she trusted the agent. The Tribunal does not accept that explanation. Even if the applicant was entirely ignorant of the immigration laws (and the Tribunal does not accept that, given that the applicant had previously applied for and was granted a Student visa and had been able to complete post-graduate study in Australia, which may indicate her capacity to acquire information about Australian laws), it would have been obvious to the applicant that the application should not include untruthful information and bogus documents. In this case, the Tribunal has found that the applicant knew that the application would include incorrect claims of her relationship with Mr He and she was indifferent about the real possibility of document fraud (and was positively taking part in it by taking photographs with Mr He for submission with the application). The applicant concedes that she knew she was ‘doing the wrong thing’ and that she was aware her application contained incorrect information and could guess that the documents could be changed. Whether or not she was familiar with the Australian immigration laws, the Tribunal finds that  the applicant was aware of the fraud and complicit in it.

24. The applicant refers to her partner’s employment, stating that he is well regarded at work and has been recently promoted and if her visa is cancelled, he could not keep his job. The Tribunal accepts that but is mindful Mr Hu does not have an Australian permanent visa and until he is granted such a visa, the Tribunal is of the view that he cannot have an expectation of living in Australia and working here permanently. Nevertheless, the Tribunal accepts that significant hardship could be caused to the applicant and her family if the visa is cancelled.

25. The applicant told the Tribunal that her mother had sold the property in China on the assumption that she can settle in Australia. While that may be the case, the Tribunal is mindful that the applicant’s mother has not been granted a permanent visa and she also cannot assume she would be granted one, even once she has made a valid application for a permanent visa. It is the family’s decision whether, or when, to dispose of their assets in China but in the Tribunal’s view that decision may have been premature, given that the applicant’s mother has not been granted the Australian visa.

26. The applicant claims that her mother sold the property to support the purchase of the property in Australia and they have no money to purchase another property in China. The applicant states that they cannot return to her hometown because of the pollution and buying a property in another city would be expensive. The applicant states that her mother may need someone to look after her and they do not have money to support living in a big city. The applicant presented no evidence to the Tribunal about the value of the property in Australia, whether she has any other assets and their potential value and no evidence about the value of properties in China. On the evidence before it, the Tribunal does not accept the applicant would be unable to support her living in China.

27. Mr Hu told the Tribunal that due to the policy changes in China, his parents had to pay a substantial sum to the workers for social benefits and this had affected his parents’ business. His parents then decided to apply for the Australian visa and they paid a large sum to an agent in Australia. His parents were able to get temporary visas but because the agent cheated them, his parents were not able to get the permanent visa or their money back. His parents had returned to China and his mother does not have work and his father is trying to run a small business. The representative submits that given their financial situation and loss of savings, Mr Hu’s parents would not be able to support the family if they were to return to China. However, there is no documentary evidence about the parents’ present financial circumstances, savings or assets or their ability to support the applicant and their son. The Tribunal is not prepared to accept Mr Hu’s about his parents’ financial circumstances without the supporting documentary evidence (being mindful that financial records relating to Mr Hu’s parents may not have been difficult to obtain). Mr Hu refers to his employment and his wife’s pregnancy. These matters are addressed above and the Tribunal accepts Mr Hu’s evidence. Mr Hu refers to his desire to have a family and a baby with his wife in Australia and the hardship they would experience in China. Mr Hu refers to his settlement in Australia and the friendships he has formed. The Tribunal generally accepts these aspects of Mr Hu’s evidence.

28. The applicant submits that she has been suffering from depression and seeing a psychiatrist and the cancellation of the visa would exacerbate her mental and physical health issues. The Tribunal is not prepared to make such predictions in the absence of probative medical evidence, such as a health report addressing how the cancellation of the visa or the return to China are likely to affect the applicant’s health in the future. In the absence of such evidence, the Tribunal does not accept the applicant’s assertion about the effect of the visa cancellation upon her health. The Tribunal also acknowledges the evidence of the applicant’s pregnancy but there is nothing before the Tribunal – and the applicant does not claim – that she would be unable to give birth in China, should the cancellation of her visa result in the applicant’s departure from Australia.

29. The representative submits that the applicant had not gained any real benefit from including Mr He in her visa application. However, the applicant’s evidence to the Tribunal is that she included Mr He in case she may need to rely on additional points and because she thought her application would be processed faster. Whether or not the applicant had in fact obtained any benefits from including Mr He, the evidence is that she included him in the hope of obtaining such benefits or in the expectation to get a benefit, should the need for it arise. As noted above, the Tribunal has formed the view that the applicant had engaged in the fraud deliberately and knowingly.

30. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant has not complied with ss. 101 and 103 of the Act and that there are grounds for cancelling her visa.

31. The Tribunal accepts there are reasons why the visa should not be cancelled. Most importantly, the Tribunal places weight on the length of the applicant’s stay in Australia and the degree of her settlement here, including financial, social, employment and other connections in this country. The Tribunal accepts that significant hardship would be caused to the applicant and her family if her visa is cancelled, including the possibility of financial hardship (at least initially), difficulties with finding employment (also initially) and other forms of hardship. The Tribunal accepts that the applicant, her partner and mother prefer to live in Australia and have formed friendships and social connections. The Tribunal has formed the view that the applicant’s present circumstances and the degree of her integration in the Australian community, employment, financial connections and other considerations weigh strongly against the cancellation.

32. The Tribunal accepts that the applicant has made a contribution to the community. The Tribunal also places considerable weight on the fact that if the applicant’s visa is cancelled, her partner and mother are unlikely to be granted the Australian visas and therefore the cancellation of the applicant’s visa would have significant effect, and cause considerable hardship, to others. If the applicant’s visa is cancelled, her child, once born, will not be an Australian citizen. The Tribunal accepts Mr Hu’s evidence that he is settled in this country, has good job prospects and that his preference is to remain in Australia. Generally, the Tribunal accepts that considerable hardship would be caused to the applicant and her family by the cancellation of her visa and this also weighs against the cancellation.

33. The Tribunal accepts that there are significant legal consequences to the cancellation of the applicant’s visa, including limited future visa options and the effect the cancellation of the applicant’s visa would have on her sponsorship of her partner and mother. The Tribunal acknowledges that there are strong considerations why the visa should not cancelled.

34. The Tribunal has formed the view that the cancellation would not be in breach of Australia’s international obligations.

35. The Tribunal also formed the view that there are strong considerations why the visa should be cancelled. Most significantly, the Tribunal places weight on the circumstances in which the non-compliance occurred and the fact that the decision to grant the visa was based on incorrect information and bogus documents. With respect to the former consideration, the Tribunal has formed the view that  the applicant’s actions in providing incorrect answers and bogus documents were deliberate and with the intention of obtaining a benefit to herself. While the applicant repeatedly told the Tribunal that she did not rely on Mr He’s points and did not need to include him in the application, the evidence before the Tribunal is that she included him ‘in case’ she needed the additional points – particularly as her age bracket was about to change – and therefore, she herself believed there would be a benefit to include him in her visa application. The applicant knew that the application contained false claims of her de facto relationship with Mr He and false evidence to provide that relationship, in the form of photographs, and her evidence is that she could have ‘guessed’ that there was other evidence of the relationship included in the application that was bogus. The applicant agreed to the fraud and allowed it to occur. Despite her expression of regret and remorse, she took no steps to rectify it. The Tribunal is of the view that the applicant’s involvement in the fraud, and generally the circumstances in which the non-compliance occurred, weigh heavily in favour of the cancellation.

1. With respect to the latter consideration, it is significant in the Tribunal’s view, that the decision to grant the visa was based on incorrect answers and bogus documents. The applicant’s repeated claims that she did not need Mr He’s points are misconceived because the points score is not the only considerations that was relevant to the assessment of her visa eligibility. It is not in dispute that the application contained bogus documents and false or misleading information about the applicant’s relationship with Mr He. If that was known to the delegate, there is a real possibility that the applicant would have been found not to meet PIC 4020(1). Thus, the provision of incorrect answers and bogus documents was significant to the determination of the applicant’s eligibility for the visa. In the particular circumstances of this case, the Tribunal has decided to give these considerations greater weight.

2. 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

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

   Kira Raif
   Senior Member