Liu (Migration)

[2022] AATA 2311

Liu (Migration) [2022] AATA 2311 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaoxuan Liu

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2112399

HOME AFFAIRS REFERENCE(S):          BCC2021/1434202

MEMBER:Kira Raif

DATE:2 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Statement made on 02 May 2022 at 6:38pm

CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – ground for cancellation – incorrect information in visa application – member of the family unit – de facto relationship – bogus document – addresses altered in bank statements and phone bills – consideration of discretion – visa grant based on incorrect information – circumstances in which the non-compliance occurred – deliberate fraud – present circumstances of the visa holder – Australian citizen child – best interest of the child – ability to acquire Chinese citizenship – significant hardship – length of stay in Australia – decision under review set aside

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

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 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 January 1991. She was granted the Skilled visa in November 2016. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss 101 and 103 of the Act. The applicant provided her response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Mr Chen. 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 set aside.

   Relevant law

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

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

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 the applicant made the application for a Skilled Nominated visa on 2 May 2016 on the basis of being a member of the family unit of Mr Yan Xia. The applicant stated in that application that she and Mr Xia met in May 2014 and commenced a de facto relationship and cohabitation in October 2014. When completing the application form, the applicant also gave details of her de facto relationship with the primary applicant, stating that the relationship began in October 2014. The application included a declaration that all the information in the application was complete and correct.

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

   -Commonwealth bank records for the period from January to June 2015 in the name of the primary visa applicant, Mr Xia addressed to a Rhodes address,

   -Vodafone phone bills for the period from March 2015 to July 2016 in the applicant’s name also addressed to the Rhodes address,

   -Undated and unsigned statements purportedly from the applicant and Mr Xia entitled ‘love story’. In her statement the applicant stated that from October 2014 she decided to move to Mr Xia’s address and they began their de facto relationship because they loved each other. She stated that they shared rent and bills and from March 2015 lived at the Rhodes address with a friend.

10. The applicant and Mr Xia were granted the Skilled visas on 29 November 2016. It is stated in the primary decision record that following the visa grant, the Department had carried out a forensic examination of the above document and it was determined that the addresses on the Vodafone phone bills and Commonwealth bank statements did not match the residential addresses officially registered to these documents. The delegate concluded these were bogus documents.

11. The primary decision record indicates that in her application for the Student visa, lodged in April 2014, the applicant referred to having completed a degree at Sun Yat-sen University in China and she presented a copy of the bachelor degree issued by that institution in June 2013 in the name of Chen Peng. It is stated that in July 2018 the applicant sponsored Mr Chen Peng for a Partner visa and stated in that application that she met Peng Chen in 2009. The delegate notes that according to Departmental records, the applicant first entered Australia in May 2014 with Mr Peng Cheng as Student visa holders and declared each other as contact persons on their respective Incoming Passenger Cards.

12. The primary decision record also indicates that both the applicant and Mr Peng Chen, in their respective Forms 80 (personal particulars) gave the same residential addresses in Burwood and then Rhodes. However, in the Skilled visa application the applicant and the primary applicant Mr Xia claimed they lived with another person and made no mention of Mr Peng Chen living in the same premises. There is also no mention of Peng Chen in the tenancy agreement for the applicant and Mr Xia.

13. The delegate concluded that the applicant and Mr Chen were ‘closely associated to one another’ before the applicant claimed to be in a de facto relationship with Mr Xia in his Skilled visa application. This may also contradict the claims made in Mr Peng Chen’s Partner visa application that their relationship started after the applicant was granted the Skilled visa. The delegate concluded that the applicant did not comply with s 101 when claiming to be in a de facto relationship with the primary visa applicant and with s 103 by providing bogus documents with the application.

14. In her response to the NOICC the applicant outlined the circumstances surrounding her Skilled visa application. The applicant claims, essentially, that she approached a migration agent who told her that he could find a suitable visa applicant to whom she could be added as a de facto partner. The applicant states that she paid $30,000 to the agent who took care of the application but she only provided genuine documents to the agent. The applicant explained that she was desperate to remain in Australia to avoid an abusive relationship in China. The applicant expressed her remorse for the decisions made.

15. In oral evidence, the applicant told the Tribunal that she gave the agent only real documents. The applicant states that there was no lease agreement because she owned the apartment at Rhodes. She does not have a Commonwealth bank account and while she does have a Vodaphone account, it is in her name only. The Tribunal questioned the applicant about what she thought was the basis of her visa application. The applicant stated that she did not know the basis on which the application was made. She claims the agent told her she could be a dependant but she did not understand at that time the basis of her application and the agent did not give her the papers until later. The Tribunal does not accept that evidence. The Tribunal does not accept that the applicant was so naïve and ignorant about visa requirements (having applied for, and been granted visas previously) as to genuinely believe that she could be included as a dependant in an application made by another person for no reasons whatsoever. The Tribunal does not accept the applicant genuinely considered herself to be a dependant of the primary visa applicant whom she did not know. The Tribunal has formed the view that the applicant has not been truthful in her explanation to the Tribunal and that she deliberately tried to minimise her involvement in the fraud.

16. The Tribunal finds, having regard to the information in the primary decision record, that the Commonwealth bank statements and Vodafone bills had the addresses altered, so the documents were altered by a person without authority. The Tribunal finds that these are bogus documents. Whatever the applicant’s involvement in the provision of these documents (and the Tribunal is prepared to accept that the applicant did not personally alter the documents), the Tribunal finds that the applicant gave, or caused to be given, bogus documents with her visa application. The Tribunal finds that the applicant did not comply with s 103 of the Act in the way described in the Notice.

17. The Tribunal further finds, having regard to the applicant’s own evidence, that she was never in a de facto relationship with the primary visa applicant. The applicant’s evidence is that the relationship was ‘arranged’ by the migration agent to whom she had paid a substantial fee for being added to the application. The Tribunal finds that the applicant completed the application form in a way that incorrect answers (about her relationship with the primary visa applicant) were given or provided. The Tribunal finds that the applicant did not comply with

    
    

    s 101 of the Act in a way described in the Notice.

    Should the visa be cancelled?

18. 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).

19. 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

20. The correct information is that the applicant was not in a de facto relationship with Mr Xia. The correct information is that they did not live together.

    The content of the genuine document (if any)

21. The genuine documents would not show the applicant and the primary visa applicant cohabiting at the same address. The genuine documents would not support the applicant’s claimed de facto relationship with the primary visa applicant. The applicant concedes that she did not have a de facto relationship with Mr Xia and did not live with him.

    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

22. The applicant made the application as a member of the family unit of the primary applicant. There is nothing before the Tribunal to indicate that she met the primary criteria for the visa grant and in her submission to the delegate the applicant confirmed that her occupation was not on the Skilled Occupations List (SOL). In her oral evidence to the Tribunal the applicant explained that she needed to complete additional study before she could apply for the visa on her own. Thus, the applicant’s eligibility for the visa was dependent on her meeting the secondary criteria. There is no suggestion that the applicant met any other definition of being a member of the family unit of the primary visa applicant other than his de facto partner. Thus, the Tribunal finds that the applicant’s claimed de facto relationship with the primary visa applicant, and evidence of that relationship such as phone bills and bank records, were central to the decision-maker’s finding that the applicant met the secondary criteria for visa grant.

23. The Tribunal finds that the decision to grant the visa was based, partly but to a very significant extent, on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

24. The applicant claims in her written evidence, essentially, that she approached a migration agent (she provided with her response to the NOICC evidence of her interactions with the agent) who suggested that she could obtain the visa by being included in another person’s application. The applicant claims that she was desperate to remain in Australia due to family issues and she paid the agent $30,000. The applicant submits that she gave only genuine documents to the agent.

25. The applicant told the Tribunal that she had family issues (her father was a gambler and a drinker), her mother was suffering from depression, there was a history of domestic violence and she did what she could to help the family by obtaining the Australian visa and sponsoring her mother. The applicant stated that in order to apply on her own, she had to do another course and she did not think her mother could wait that long. The applicant states that she wanted to get the permanent visa so she could work and support her mother’s migration.  Th applicant also said that her Student visa was about to expire and her father was no longer supporting her financially and she had no money to support her study.

26. The Tribunal acknowledges the applicant’s stated reasons and motivations for making the application. However, the applicant’s evidence is that her occupation was not on the SOL and that the agent did inform her that the basis of her application was to be included in another person’s application as a dependant. The applicant knew that she had no relationship with that person and was not his de facto partner. Neither does the Tribunal accept the applicant genuinely believed she was a dependant of the primary visa applicant. Whether the applicant had prepared the bogus documents herself or the agent did it to assist the applicant with the application is, in the Tribunal’s view, irrelevant because the applicant was well aware that she was making the application on a non-existent basis and making fraudulent claims about being in a relationship with the primary visa applicant. That is, the applicant was aware of the fraud and agreed to it, whether or not she knew the precise details or was involved in the preparation of bogus documents.

    The present circumstances of the visa holder

27. The applicant provided detailed information in her response to the NOICC and her evidence to the Tribunal. The applicant refers to evidence of her relationship with an Australian partner, Mr Chen, and the birth of their child, who is an Australian citizen. The applicant provided to the delegate evidence of the relationship. The Tribunal accepts, for the purpose of this application only, that the applicant is in a genuine relationship with her partner (noting the applicant’s evidence that his application for the Partner visa was refused and there is an application for review presently before this Tribunal). The Tribunal also accepts that the applicant has a child who is an Australian citizen. 

28. The applicant provided evidence in relation to her business, including evidence of business operations including the GST records, registration, financial records and other materials. The Tribunal accepts that the applicant operates a business. The applicant provided to the Tribunal her partner’s taxation record. The Tribunal accepts the applicant has significant business, financial and family ties in Australia.

29. The applicant provided to the delegate a GP Mental Health Care plan dated July 2021. The Tribunal accepts the professional opinions expressed in the medical reports and accepts that the applicant suffered from post-natal depression. 

30. The applicant provided evidence of having purchased a property and evidence of mortgage repayments. The applicant also provided evidence that her mother had purchased a property in Australia and she provided to the Tribunal her mother’s land tax assessment notice. The applicant submits that if they are to leave Australia, they may be unable to repay the debts. The Tribunal accepts that if the cancellation of the visa is to lead to the applicant having to depart Australia, this may affect the applicant’s earning capacity and ability to repay the loan and may cause financial hardship to the family.

31. The applicant provided to the Tribunal evidence of running a cat breeding business. She told the Tribunal that she would need to re-home the pets and has not found anyone who could take over 30 cats. The applicant also refers to her cat transport business. The applicant provided to the Tribunal multiple documents about business operations and the Tribunal accepts the applicant’s evidence about her business. The applicant states that in China, if an animal owner tests positive to COVID, the animal may be killed (the applicant provided to the Tribunal a media article about that which suggests that the reported incident where an animal was killed was an exception rather than the usual practice). The Tribunal accepts that if the applicant was to leave Australia, it may be hard or impossible for her to continue operating her business and that it may be difficult to find new homes for the animals.

32. The applicant refers to her husband’s employment, stating that the type of work he performs in Australia as a financial consultant is prohibited in China and that he would be unable to find a comparable job in China. The Tribunal is prepared to accept that Mr Chen may be unable to find an identical job in China. However, there appears to be no reason why he would not be able to find a different job in the same or related field or an entirely different field. The applicant certainly has not presented probative evidence to satisfy the Tribunal that her husband would be unable to find employment in China. The Tribunal is also mindful that Mr Chen does not have an Australia permanent visa and as such, he cannot have an expectation that he would be able to remain in Australia and work in Australia in his chosen occupation before he is granted an Australian visa.

33. The applicant states that her partner had previously lived with his parents and they have no property of their own in China and would find it difficult to settle with a newborn. The Tribunal does not accept that evidence. The applicant’s evidence to the Tribunal is that she has a property in Australia, as does her mother. Should she decide to relocate to China, she would have the option of selling that property and that may assist the applicant in finding accommodation in China. The applicant’s evidence is that if she has to leave Australia, she might keep her property and house the cats and her mother does not intend to sell the property. It may be possible to derive some income from the properties or the applicant and Mr Chen may look for gainful employment in China but the Tribunal does not accept that the applicant and her family would have nowhere to live if they were to return to China.

1. The applicant told the Tribunal that she has an ongoing financial dispute with the business partner and her lawyer suggested to her that she would have to be present in Australia for the court date. The applicant told the Tribunal that there is no hearing date yet and no action at present because her business partner is on maternity leave and has three months to make repayments. The applicant claims that if they return to China, they would be unable to pay even the legal fees. The Tribunal accepts that there is an ongoing case at present and the Tribunal is prepared to accept that the applicant’s presence in Australia may be beneficial to pursuing that case (including in paying the legal fees).

2. The applicant told the Tribunal that she has taken deposits from multiple customers and if her visa is cancelled and she cannot continue with the business, she would have to repay double the amount and she cannot afford to do that. As noted above, the Tribunal accepts that the cancellation of the visa may cause financial hardship to the applicant and her family.

3. The applicant refers to having an abusive relationship with her father and states that if she was to live in China, she would face her father’s manipulations and demands for money. The applicant told the Tribunal that her father, who is in the police, may find them no matter where they live, and harm the baby. The applicant claims that her father found her previously and they reported the matter to the police but the police told them it was a domestic matter and they did not want to get involved. Mr Chen also described an incident when the applicant’s father had been violent and claims if they return to China, no matter where they live, her father would find them. Following the hearing, the applicant provided statements from third parties confirming their observations of family violence. The applicant also states that she is concerned about her own safety due to her father, and his demands for money, noting that her father had previously harmed her mother. The applicant states that her father may believe she has money, if she comes from Australia, and may wish to harm her or the baby if money is not given.

4. The Tribunal is mindful that in her written evidence, the applicant referred to the family violence and her father’s gambling and drinking but she has not mentioned that she was fearful of extortion or physical violence by her father. The applicant’s claims appear to have escalated from what was provided in her written submissions. Nevertheless, the Tribunal is prepared to accept that the applicant’s father has been abusive towards her and her mother and the Tribunal accepts that the applicant may be genuinely fearful that he may again be abusive towards her and demand money from her. The Tribunal acknowledges that this may result in significant hardship for the applicant, should she be required to return to China.

5. The applicant told the Tribunal that she has not lived in China for over six years and has no social connections there so it would be hard to re-establish herself. The Tribunal does not accept that evidence because the applicant has spent the majority of her life in China and has some family connection there. The applicant was also able to establish herself in Australia, despite initially having no social connections here. The Tribunal does not accept the applicant would have difficulty re-establishing herself in China. The Tribunal generally accepts that the applicant has been living in Australia since May 2014 and is well settled in this country. The Tribunal accepts that the applicant has strong family, employment, financial and social tier in Australia but the Tribunal is of the view that the applicant will be able to establish similar ties in China.

6. The applicant told the Tribunal that her child has not been vaccinated and she is concerned about the child’s health due to COVID. The Tribunal accepts that evidence but is mindful that COVID exists in Australia as well as in China and the applicant has not satisfied the Tribunal that the child would be at greater risk in China than he is in Australia.

7. Mr Chen told the Tribunal that he works for a trading company and that work is illegal in China.  He has worked hard to progress to become an account manager and his work experience would not count for anything in China. Mr Chen stated that when living in China, he worked for an international transportation company but he no longer has the connections or the relevant experience. Mr Chen stated that he would not be able to support his child. Mr Chen states that because he has not paid taxes in China, it would be difficult for their child to go to a proper school. Mr Chen told the Tribunal that he and his wife made mistakes but their child is innocent and should not be penalised. The Tribunal accepts Mr Chen’s evidence about his employment in Australia and, as noted above, the Tribunal accepts that he may be unable to perform the same work in China.

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

8. 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

9. There are no known instances of non-compliance.

   The time that has elapsed since the non-compliance

10. The application for the Skilled visa was made in May 2016. About six years has passed since the non-compliance. The Tribunal acknowledges it is a significant period and that the applicant has settled in Australia in that time.

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

11. There are no known breaches of the law.

    Any contribution made by the holder to the community

12. The applicant refers to her business and work in support of animal welfare. The applicant provided a number of character references in response to the NOICC. The Tribunal accepts that evidence. The applicant also provided evidence of having made donations to a temple and other charity organisations. She also refers to vaccinating pets. The Tribunal accepts that the applicant has made a contribution to the community.

13. 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

14. The applicant’s evidence to the Tribunal is that she has sponsored her mother and husband for visas but these have not been granted. It appears that if the applicant’s visa is cancelled, nobody else’s 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

15. The applicant has a child who is an Australian citizen and who was born in Australia. The Tribunal is generally of the view that given the child’s young age, he would be easily able to adapt to life in any other country, including China. It is not uncommon for children to migrate to a new country with their parents and there is nothing in the applicant’s evidence that would indicate that in the particular circumstances of this case, the child would be unable to adapt to the new environment.

16. The Tribunal is of the view that given the child’s young age, it is in their best interests to be cared for by both parents. However, this need not necessarily occur in Australia, irrespective of the child’s citizenship or country of birth. If the applicant is required to leave Australia as a result of the cancellation of her visa, her partner is also not a permanent resident of Australia so there is a real chance that both the applicant and her partner may depart Australia. As such, their child would continue to be in the care of both parents irrespective of whether he resides in Australia or in China. Ordinarily, this would mean that the best interests of a child would not be adversely affected if a parent’s visa is cancelled and if both parents leave Australia as a result and the family unit is preserved.

17. However, the Tribunal acknowledges that the situation in the present case is different because China does not recognise dual citizenship. The applicant told the Tribunal that it may take several years for the child to acquire the Chinese citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that “Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce”. The Tribunal acknowledges that if the children retain their Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the children are unlikely to be able to acquire the Chinese citizenship and that may mean that they do not have access to public systems including healthcare and education. It may be necessary for the children to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the children will require residence permits to remain in China on a long-term basis.

18. The Tribunal accepts that the residence of the Australian citizen child in China, where he cannot acquire the Chinese citizenship without renouncing the Australian citizenship, and where he may be required to reapply for visas and routinely register with the local authorities and have limited access to government services may cause hardship to the family and the children. The Tribunal accepts that given his Australian citizenship, the child may experience significant limitations in various aspects of his life in China, including residence permits, access to education, healthcare and employment unless the Australian citizenship is renounced and the Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant’ child requires the child to remain in Australia and that the best interests of the child would be adversely affected by the cancellation of the applicant’s visa. This is a primary consideration but it is not a determinative one.

19. The Tribunal also acknowledges the applicant’s claims that her child may be at risk of harm from her father but, as noted above, the applicant has not satisfied the Tribunal that her father has any intention to harm the child.

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

20. The applicant refers in her evidence to the Tribunal to her father’s violent behaviour towards herself and her mother. The applicant states that her father is a police officer and would always be able to find her no matter where she lives. She claims he may also demand money from her because she would be coming from a western country and he needs money for gambling. The applicant states that when they reported his conduct to the police in the past, the police refused to intervene because it was a family matter. The applicant also states that her child may be harmed if she cannot meet her father’s demands. The applicant refers to her father’s gambling and drinking problems and states that her and her child’s safety may be at risk. As noted above, the Tribunal is prepared to accept that the applicant may have observed, or experienced family violence from her father. The Tribunal is mindful, however, that the applicant is able to seek a protection visa if she is genuinely fearful of such harm. The Tribunal does not consider that the cancellation of the visa would be in breach of Australia’s non-refoulement obligations.

21. As for the principles of family unity, the Tribunal is mindful that the applicant’s partner is not a holder of an Australian visa and there does not seem to be anything preventing the entire family from leaving Australia, should the applicant’s visa be cancelled. The Tribunal does not consider that the cancellation of the applicant’s visa would lead to her removal in breach of 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

22. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. There is nothing to suggest the applicant would be detained indefinitely. The applicant will face restrictions on onshore visa application, due to operation of s 48, and may be subject to an exclusion period in relation to some future visa applications. The cancellation of the visa would result in the applicant losing some of the entitlements she may have acquired as a permanent resident of Australia, including the ability to sponsor others (including her partner and mother) for Australian visas. The applicant would also lose her eligibility to seek Australian citizenship if she is not a holder of a permanent visa.

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

23. The applicant refers to loss of employment for herself and her partner, financial hardship and inability to service the home loan and hardship of resettlement in China. These are addressed above. The Tribunal generally accepts that considerable hardship would be caused to the applicant if the cancellation of the visa is to result in her departure from Australia.

24. The applicant provided with her response to the NOICC several character references and the Tribunal accepts that those who provided references believe the applicant to be a good person. The Tribunal is also prepared to accept that the applicant’s friends who provided statements would be affected if the applicant was to leave Australia.

25. The Tribunal also acknowledges the applicant’s expression of remorse but is unpersuaded by it, since remorse was only shown in response to the NOICC and there is nothing before the Tribunal to indicate that prior to receiving the NOICC the applicant informed the Department of providing incorrect information in her visa application.

26. The applicant repeatedly told the Tribunal that she did not know the basis of her Skilled visa application and that she did not see the bogus documents. The Tribunal is concerned that the applicant tried to disassociate herself from the fraud. As noted above, the applicant does not dispute that she did not have a relationship with Mr Xia and that she was making the application on the basis of such relationship and, in such circumstances, her claims that she did not know that bogus documents were submitted is meaningless.

27. Further, the applicant told the Tribunal that when sponsoring Mr Chen for the Partner visa, she referred to her relationship with Mr Xia, even though that relationship did not exist. That is, the applicant again chose to be untruthful in her claims made in support of Mr Chen’s visa application. The applicant told the Tribunal that the agent helped with the application and they decided to put whatever information they had previously provided to be consistent. It is significant that the applicant admits that she provided false or misleading information when sponsoring Mr Chen.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant had not complied with ss 101 and 103 of the Act and that there are grounds for cancelling her visa.

29. The Tribunal accepts that significant hardship would be caused to the applicant and her family by the cancellation of her visa. The Tribunal accepts that if the cancellation of the visa was to result in the applicant having to depart Australia, this may result in the loss of employment and income, financial losses associated with having a property in Australia, inability to sponsor other family members and it would affect the applicant’s extensive family, social, financial and employment ties in this country. The Tribunal accepts that the applicant has been living in Australia for a long time and has formed significant ties which she may no longer have in China. The Tribunal also accepts the applicant’s evidence that her partner may not be able to work in the same occupation in China as he does in Australia (although the Tribunal is mindful that he is not a holder of an Australian permanent visa and, as such, can have no expectation of remaining in Australia and working in Australia permanently). The Tribunal accepts that the applicant may not be able to replicate her business in China and that, with a child, it would be difficult for her to re-enter the workforce in China.

30. The Tribunal also acknowledges the applicant’s evidence about suffering from post-natal depression, although the applicant has not satisfied the Tribunal, and has not presented probative evidence, that appropriate treatment would not be available to her in China. Nevertheless, the Tribunal accepts that for a variety of reasons, the applicant and her family would suffer significant hardship as a result of the visa being cancelled. The Tribunal also accepts that the applicant has made a contribution to the community.

31. The Tribunal accepts that significant hardship would be caused to the applicant, her partner, child and mother if the visa is cancelled. The Tribunal also accepts there would be financial hardship resulting from the cancellation. The Tribunal accepts that given the length of their stay in Australia, it would be difficult for the family to return to China, at least in the short term. The Tribunal acknowledges the applicant’s evidence that her and her child’s safety may be at risk from her father and that there is a risk to the whole family. The Tribunal has accepted the applicant’s evidence that she had observed or experienced family violence in the past, perpetrated by her father, and that there is a possibility of that occurring again.

32. The Tribunal has also found that the cancellation of the visa would be contrary to the best interests of the applicant’s child, who is an Australian citizen. This is a primary consideration (albeit not the only one). All these factors weigh strongly against the cancellation.

33. However, there are factors that, in the Tribunal’s view, weigh very heavily in favour of the cancellation. Most significantly, it is the fact that the decision to grant the visa was based on incorrect information and bogus documents. The applicant’s eligibility for the visa was solely on the basis of being a de facto partner of the primary visa applicant and that relationship did not exist. If the correct information was known to the decision-maker, the applicant would not have been granted the visa. The Tribunal is also mindful that the applicant’s settlement in Australia and all the factors to which she refers as a result of her residence in Australia (such as property ownership, business operations, sponsorship of others, etc.) arise from the fact that the applicant has been living in Australia, having been granted a permanent visa to which she was not entitled. This weighs heavily in favour of the cancellation.

1. It is of some concern that the applicant repeatedly told the Tribunal that it was the agent who prepared the application and prepared the bogus documents and that she was not shown the bogus documents. The applicant appears to wish to mitigate her involvement in the fraud by suggesting it was the agent, rather than herself, who perpetrated the fraud.

2. The Tribunal also places significant weight on the circumstances in which the non-compliance occurred. The applicant’s evidence is that she knew she was included in the visa application made by another person as a partner and she knew that such a relationship did not exist. She claims she paid $30,000 to the agent to be included in the application. Whatever the applicant’s motivations for wanting an Australian visa, the Tribunal does not consider these justify the extent of the fraud. The Tribunal has formed the view that the non-compliance was deliberate and perpetrated knowingly with the sole intention of obtaining the Australian visa to which the applicant knew she was not otherwise entitled. This also weighs heavily in favour of the cancellation.

3. Another factor of concern to the Tribunal is the applicant’s decision to provide untruthful information when sponsoring her partner for a Partner visa. In that sponsorship the applicant again provided incorrect answers concerning her previous relationship, despite her claimed remorse for her past actions. The applicant’s willingness to be untruthful whenever it suits her needs is a strong factor in favour of the cancellation.

4. The Tribunal has weighed these factors. Overall, the Tribunal has decided to place the greatest weight on the best interests of the Australian child, the hardship that would be caused to the applicant and her family by the cancellation and the real possibility of the applicant experiencing family violence (and potentially her mother, who would be precluded from migrating to Australia, as well as her child). While the Tribunal decided that there are very strong reasons why the visa should be cancelled, the Tribunal decided to give these circumstances greater weight. In the particular circumstances of this case, the Tribunal has decided that the visa should not be cancelled.

   Conclusion

5. 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 not be cancelled.

   DECISION

6. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

   Kira Raif
   Senior Member