Liu (Migration)

Liu (Migration) [2021] AATA 2279 (6 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Qiang Liu
Mrs Xi Chen
CASE NUMBER:  2001790
DIBP REFERENCE(S):  BCC2017/4859492
MEMBER:R. Skaros
DATE:6 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 – Skilled – Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 06 April 2021 at 12:48pm
CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – applicant provided incorrect information – bogus document – skills assessment document is not genuine – best interests of the newborn child – emotional and psychological hardship – applicant has made a contribution to the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 101, 103, 109
Migration Regulations 1994, r 2.41, Schedule 2, cl 190.212
CASES
MIAC v Khadgi (2010) 190 FCR 248
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Immigration to cancel the first named applicant’s Subclass 190 – Skilled – Nominated visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with s.101 and s.103 of the Act. The delegate found that the applicant had provided incorrect information on the visa application form for the Subclass 190 (Skilled) visa and that he had provided a bogus document as part of that application. After having regard to the considerations in r.2.41, the delegate decided to cancel the visa.
The applicant provided a copy of the delegate’s decision record with the application for review.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The secondary applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the secondary applicant.
The applicants appeared before the Tribunal on 11 September 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Act in the following respects.
In the notice dated 4 December 2019, the delegate set out the particulars of the non‑compliance as follows:
Evidence of grounds for cancellation
On 16 August 2016, you lodged an application for a Skilled - Nominated (subclass 190) visa. You completed an Application for Points Based Skilled Migration Visa form in which you provided the following responses (in italics):
Skills assessment (page 7 of 13)
A provisional skills assessment for a subclass 485 visa is not a suitable skills assessment to apply for any other visa.
Skills assessment
Skills assessment details
Nominated occupation:          Welder (First Class)
Does the applicant have a suitable skills assessment from the relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa?
Yes
Name of assessing authority: Trades Recognition Australia
Date of skills assessment: 16 May 2016
Reference I Receipt number: TS282319
Declarations (page 12 of 13)   Warning:
Giving false or misleading information is a serious offence.
The applicants declare that they:
Have read and understood the information provided to them in this application.
Yes
Haye provided complete and correct information in every detail on this form, and on any attachments to it.
Yes
Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time.
Yes
Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.
Yes
In your visa application, you provided a Skilled Migration Assessment Result purportedly issued by Victoria University conducted on behalf of Trades Recognition Australia (TRA) dated 16 May 2016 in your name bearing TradeSET number TS282319.in the nominated occupation of Welder (First Class) - 322313.
The primary criteria for a Skilled - Nominated (subclass 190) visa are at regulation 190 of the Migration Regulations 1994 and, part thereof, states:
PRIMARY CRITERIA 190.212
(1)      At the time of invitation to apply for the visa:
(a)the relevant assessing authority had assessed the applicant's skills as suitable for the applicant's nominated skilled occupation;
On the basis of the Skilled Migration Assessment Result provided in your Skilled - Nominated visa application, alongside meeting other relevant criteria, you were granted your Skilled - Nominated visa on 9 November 2016.
The Department has conducted verification of your skills assessment results with TRA, who have advised the Department that the above noted Skilled Migration Assessment Result was not issued by Victoria University and is not genuine. This information appears to indicate that this document is bogus which in turn appears to indicate that at the time of your visa application you did not have a suitable skills assessment from the relevant assessing authority in your nominated occupation of a Welder (First Class).
Based on this information, I consider you provided incorrect answers as following in your
Application for a Skilled - Nominated Visa:
·     by stating at page seven that you have a suitable skills assessment in your nominated occupation of Welder (First Class) from the relevant assessing authority in TRA dated 16 May 2016 with the reference number TS282319
·     by declaring under Declarations at page 12 that you have provided complete and correct information in every detail on your Skilled - Nominated visa application form, and on any attachments.
Based on the above information, it appears that you have not complied with section 101(b) of the Act, as you have provided incorrect answers to the Department in your Skilled - Nominated visa application.
I also consider you provided a bogus document to the Department in the Skilled Migration Assessment Result dated 16 May 2016. Based on the above information, it appears that you have not complied with section 103 of the Act because you have provided a bogus document (within the meaning of section 5(1)(b) of the Act) to the Department in order to satisfy the legislative requirements for grant of your Skilled - Nominated visa.
Accordingly, your Skilled - Nominated visa is liable for cancellation under section 109 of the Act. It is not relevant whether you deliberately or inadvertently did not comply.
Response to the notice
On 18 December 2019, the applicant’s former representative sought an extension of time of 28 days to respond to the notice. The former representative submitted that the applicant was shocked by the allegations that he had submitted a bogus document and that he would be contacting Victoria University to understand the basis of the allegations. It was also submitted that the applicant had engaged a migration agency in China to handle the visa application process and that the applicant would be contacting the agency to understand what happened with the application. The former representative referred to case law relevant to the reasonable exercise of discretion when considering whether an extension of time should be granted.
On 19 December 2019, the Department wrote to the former representative advising that the response period had not been extended as there were no provisions within the Act which allowed an extension of the response period with respect to cancellation consideration under s.109 of the Act. The former representative was, however, advised that the delegate would consider any information provided up to when a decision is made. By the time of the decision, on 22 January 2020, the delegate had not received any further submissions or supporting material.
Evidence before the Tribunal
In a detailed written statement to the Tribunal, dated 18 September 2021, and entitled ‘Personal Statement’, the applicant set out the circumstances leading up to the lodgement of the visa application. This evidence will be set out in more detail below, however, of relevance to the issue of whether there was non-compliance, the applicant did not dispute the evidence from Victoria University that the skills assessment in the occupation of Welder was not issued by the University and is not genuine. The applicant explained that he had engaged an agency in China, whom he had been communicating with for a long time about the migration process, and to whom he had provided his personal, education and employment documents. He stated that he had provided evidence of his engineering qualifications and employment as a Design Engineer / Mechanical Quality Engineer, and that he was informed by the agent that his qualifications and experience was in demand in Australia.
The applicant provided copies of his employment certificates, pay confirmation and curriculum vitae noting his employment in China with both state-owned and private enterprises. None of the information provided by the applicant to the Tribunal about his employment matched the information on the application form for the Subclass 190 visa.
At the hearing, the applicant gave evidence that he had provided the documents submitted to the Tribunal regarding his qualifications and work experience as a Mechanical Engineer to the agent in China. He stated that he does not understand why the agent would indicate on the application that he worked as a Welder despite being informed that his skills as an Engineer in the machinery industry were in demand in Australia.
The applicant gave evidence that he had not been given a copy of his visa application form. When asked why he had not requested a copy of his application so as to verify the information that was being provided on his behalf, the applicant stated that he was informed by the agent that he had the required skills and that the application consisted of his personal and employment information which he believed was the information he had given the agent.
The Tribunal discussed with the applicant the information in the visa application form regarding the skills assessment and the claimed employment experience as a Welder with Enaromingcheng Mechanical Processing Plant and Mengyin Shengli CNC Machinery Co. Ltd. The applicant indicated that he had no knowledge that the skills assessment was bogus and confirmed that he did not work as a Welder.
As to the claimed work experience, the applicant confirmed that the information was incorrect and that he worked for Qiqihar Heavy CNC Equipment Co. Ltd (a state‑owned company) from 2007 to 2010, Carl Zeiss Fixture Systems (Changchun) Co., a German company, as a Design Engineer from 2010 to 2014, and for Faurecia Automotive Exteriors, a French company, as a Mechanical Quality Engineer.
The Tribunal asked the applicant if he had sat an English test as part of the visa application, to which he confirmed that he had. He stated that he had to travel to Changxi province, which was about five hours away from his home to sit the test. When asked if that was his nearest test centre, the applicant explained that it was not and that he had previously sat the English test in Changdu city, which was his nearest centre, but that he could not resit the test for some time there as there was no availability. When asked about how he acquired his English language skills, the applicant indicated that he had some basic English skills and that he also enrolled at the English Academy Institute in 2015 and 2016.
The Tribunal explained to the applicant the effect of s.98 of the Act that he is responsible for the content of his visa application form notwithstanding that it had been completed by an agent on his behalf. In response, the applicant stated that he was not aware of what the agent had indicated on the application form.
In considering the evidence before it, the Tribunal observes that the visa application form contained numerous inaccuracies, including those related to the applicant’s employment history, and was not just limited to information regarding the skills assessment. However, for the purpose of determining whether there was non-compliance in the way described in the notice, the Tribunal has limited its considerations to the information set out in the notice, which in this case relates to the answers given in the visa application form regarding the skills assessment purportedly issued by Victoria University and the provision of that skills assessment document with the visa application.
The Tribunal has considered the applicant’s contention that he had engaged an agency in China to act on his behalf in relation to the skilled visa application, to whom he paid a fee for the service, and that he was under the impression that the information and documents submitted on his behalf were those that he had provided to the agency. In essence, the applicant claims to have had no knowledge of the incorrect information provided in the visa application form or the non-genuine document that had been submitted with the application.
The Tribunal observed that the visa application form does not indicate that any agent was acting on behalf of the applicants in relation to their visa application. However, this does not necessarily undermine the applicant’s claims to have engaged an agency to act on his and his spouse’s behalf. The visa application form was electronically generated and lodged online and could have been completed and lodged by a person other than the applicant. Furthermore, the applicant provided evidence regarding his dealings with the agency in China, including details of the agency’s name, location, contact information, payment schedule and correspondence with persons employed by the agency. On that evidence, the Tribunal accepts that the applicant had engaged an agent to act on his behalf in relation to the Subclass 190 Skilled visa application. The Tribunal is also prepared to accept that the applicant was not aware that inaccurate information and a non-genuine document had been provided with the visa application. However, this does not assist the applicant in this case because the provisions of the Act stipulate that a person who does not fill in their application form is taken to have done so if he or she causes it to be filled or if it is otherwise filled on their behalf, and an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect: ss.98 and 100 of the Act. It is therefore not relevant, for the purpose of establishing whether there was non-compliance as described in the notice, whether or not the applicant had knowledge of the information that was provided on his behalf by the agent.
The applicant did not dispute or challenge the information received by the Department from Victoria University, as set out in the notice, indicating that the skills assessment document was not issued by them and that it is not genuine. The Tribunal finds on the evidence before it that the answers in the visa application form about the applicant having obtained a positive skills assessment from the relevant assessment authority in the occupation of Welder (First Class) were incorrect. It follows that there has been non-compliance by the applicant with s.101(b) of the Act in the way described in the notice.
The Tribunal also finds on the evidence before it that the skills assessment document purportedly issued by Victoria University is a document that the Tribunal reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so. It follows that the skills assessment document provided with the visa application is a bogus document as defined in s.5(1)(b) of the Act. Having accepted the applicant’s evidence that he had engaged an agency in China to act on his behalf in respect of the visa application, the Tribunal finds that the applicant has caused a bogus document to be given. It follows that there has been non-compliance by the applicant with s.103 of the Act in the way described in the notice.
For the above reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. The Tribunal has considered each of the circumstances as follows.
The correct information
The correct information is that the applicant did not obtain a suitable skills assessment in the nominated occupation of Welder (First Class). Without a suitable skills assessment, the applicant would not have qualified for the skilled visa.
When this was discussed with the applicant at the hearing, he stated that he had given the agent all of his documents which indicated that he worked as an Engineer and he had no idea that the agent would choose the occupation of Welder. The applicant stated that he was advised by the agent that his skills were listed on the occupations list and that he had the required qualifications and experience to be eligible for the visa.

While the Tribunal is prepared to accept that the applicant may not have been aware that incorrect information regarding the applicant having obtained a skills assessment had been provided by his agent, this does not overcome the fact that the applicant would not have been granted the visa had the delegate known that the information regarding the skills assessment was incorrect. The Tribunal gives weight to this consideration in favour of cancelling the visa.
The content of the genuine document (if any)
The skills assessment document purportedly issued by Victoria University and provided with the visa application is a bogus document. Victoria University advised the Department that they had not issued that document and that it was non-genuine. There is no evidence before the Tribunal of any genuine skills assessment document.
When discussing this circumstance with the applicant at the hearing, he gave evidence that he had given genuine documents of his work experience in engineering to the agency. He stated that he was not aware that they had provided bogus documents on his behalf.
Notwithstanding the applicant’s lack of knowledge about what was provided on his behalf by his agent, the fact is that the applicant would not have been granted the visa had the delegate been aware that a genuine skills assessment did not exist. The Tribunal gives weight to this consideration in favour of cancelling the visa.
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
One of the primary criteria for the grant of the Subclass 190 (Skilled) visa is that the relevant assessing authority has assessed the applicant’s skills as suitable for their nominated skilled occupation. The Tribunal considers that the decision to grant the applicant the visa was therefore based, in part, on the incorrect information in the visa application form regarding the applicant having obtained a positive skills assessment and on the skills assessment document which the Tribunal has found to be bogus.
When this was discussed with the applicant at the hearing, he insisted that he had only given the agent his genuine documents and that the agent had made no mention to him of any skills assessment. The applicant stated that he had searched online about migration to Australia and, on his understanding, he believed that his skills were in demand. He stated that he had some difficulty accessing the Department of Immigration website as it would regularly freeze and not go beyond the main page and that he relied on Chinese websites to check his eligibility. He stated that he trusted the agent who appeared confident that he (the applicant) had the required skills to obtain the visa and that it would be a straightforward case.
The Tribunal acknowledges the applicant’s evidence, which it accepts, however, the Tribunal considers it significant that the applicant was granted the skilled visa based on a bogus skills assessment document and incorrect information relating to that assessment. For these reasons, the Tribunal gives weight to this factor in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the visa application, which included incorrect information and a bogus document, was lodged. In his personal statement, the applicant provided a detailed history of his dealings with the agency that lodged the visa application on his behalf. In summary, he stated that in 2012 he was on his way to the Changchun Talent Market, a government organisation, regarding the storage of his personal files and that located in the same building was an agency named Changchun International Talent Department. He stated that due to the location, he was under the impression that the agency was a reliable company. He became acquainted with them and asked a few questions. The applicant stated that at that time he and his wife had well-established careers. He was working for Faurecia and had an annual income of RMB130,000 and his wife had a business which sold handmade qipaos and had an annual net income of around RMB500,000 to RMB600,000.
The applicant gave evidence that although their lives were stable, they started to discuss their future and providing their child with a better education. They started to consider immigration but did not have a detailed understanding of immigration policies. After consulting several agencies, they decided to engage the agency in Changchun as he had seen the physical office for himself and trusted the agency. Following further communication with the agency, he became aware that the agency updated its name to Australia Blue Ocean International Group [sic] and were headquartered in Australia. The agency promised that visa‑related matters in their office are handled by local Australian lawyers and there would not be any potential issues or concerns. He stated that he was told that as long as the conditions that they require are met, it is guaranteed that the visas would be obtained. He stated that the agency also advised them that if the application was not successful, there would be no service fee charged. The applicant stated that he previously met and talked to Ms Wang (the person in charge) when he initially went to the Talent Market. He stated that Ms Wang appeared to be a credible person, they maintained contact with her, and she provided them with information about life in Australia which was the kind of life he and his spouse yearned for. He stated that they decided to authorise the agency to apply for the visas for them and paid them the first instalment fee.
The applicant stated that the agency provided them with the list of requirements for their visa application. As instructed by the agent, they provided the agency with his and his spouse’s identity documents, academic qualifications, proof of work experience, police checks and completed personal information forms. He stated that the agency assured them that their background was exceptional and that young people like them with professional skills and work experience are exactly what the Australian government needed. He stated that Ms Wang told them that Australia has a shortage of skilled talented individuals and because Australia’s local labour costs are very high Australia encourages skilled migration.
The applicant stated that he doubted whether the process was as straightforward as Mrs Wang had suggested and tried to search for information, but due to the limitations on the Chinese internet he struggled to find useful information, and much of the information about migration to Australia consisted of advertisements by immigration agencies in China. He stated that he attempted to log onto the official website of the Australian Immigration Department, but it would freeze on the first page. He stated that he trusted the local migration agency as they assured him that he had the appropriate skills and background to qualify for the visa.
The applicant stated that on 19 September 2016, which was less than one month after the visa lodgement, he and his wife were requested to complete their medical examination and pay for the English tuition fee, which they did. On 9 November 2016 the agency informed the applicants that their visas had been granted and they were requested to pay the remaining service fee, which they did. He stated that he requested receipts for the English training fee but it had never been provided by the agency and they eventually became too preoccupied with finalising their affairs in China so they could relocate to Australia. In April 2017, the applicant and his spouse travelled to Australia where they have since been residing.
At the hearing, the Tribunal raised with the applicant its concern that he had simply allowed the agency to submit information and documents without at least checking what was being provided on his behalf. In response, the applicant stated that the agency had given him a list of information and documents, which he provided to them, and which was all true and genuine. He claimed to be unaware that the agency had provided information that was not genuine.
As noted above, while the visa application does not indicate that an agency had lodged the application on the applicant’s behalf and the applicant was noted as the person who would be the authorised recipient in respect of the application, the Tribunal accepts, given the level of detail and evidence provided regarding his dealings with an agency in China, that the applicant had engaged the services of an agency in China to lodge the application on his behalf. The Tribunal is also prepared to accept that the applicant was not aware of the information or documents being provided by the agency on his behalf, however, the Tribunal gives limited favourable weight to this factor because it considers that where an applicant has engaged an agent to lodge a visa application, had paid a fee for that service and had permitted the agent to submit the application and documents without verifying or checking what the agent had lodged on their behalf, as in the circumstances of this case, then the applicant is ultimately responsible for the consequences of the agent’s wrongful conduct. For these reasons, the Tribunal gives limited favourable weight to the circumstances in which the non-compliance occurred in the exercise of its discretion.
The present circumstances of the visa holder
At the time of this decision, the Tribunal has evidence before it that the applicant’s spouse has given birth to a child in Australia [details deleted].
At the time of the hearing, the applicant’s spouse was over seven months’ pregnant and the Tribunal had the opportunity to query the applicant and his spouse about their present circumstances and any hardship they may experience if their visa was cancelled and they had to return to China.
In relation to their financial circumstances, the applicant gave evidence that he is currently employed with BT Imaging, a small company which manufactures devices for inspecting efficiencies of solar panels. He stated that he is responsible for the manufacturing process and that he secured this employment on the basis of his extensive experience in the mechanical industry in China. His spouse, prior to the cancellation of the visa, was employed with a tourist company. The applicant gave evidence that he and his spouse own a property in North Ryde where they currently reside. They had an investment property and had recently placed a deposit on a third property. When asked how they had been able to fund the purchase of three properties, the applicant stated that it came from his and his spouse’s accumulated savings as they had a high income in China as well as support from their parents. The applicant gave evidence that due to the cancellation of their visa, they will not be able complete the purchase of the third property, which they bought off the plan in 2017, and will likely forfeit their deposit of $130,000.
At the hearing, the Tribunal asked the applicant and his spouse about their decision to [have a child], given they were on notice at that time that the Department had identified a problem with the visa application and that their visas may be cancelled. In response, the applicant stated that they had already [started the process] long before they received the notice from the Department. The applicant gave evidence that [details deleted].
[Details deleted].
[Details deleted].
The Tribunal noted that the applicant and his spouse had family in China, including their parents and the applicant’s spouse’s sibling, and that the applicant had a good job and his spouse had operated a successful business, and asked why they could not return to China following the birth of their child and re-establish themselves there. In response, the applicant stated that he is 37 years old and has not worked in China for over three years and would not be able to understand the current situation of the industry. In relation to his spouse, he stated that she had sold the business. He also referred to the impact of COVID‑19 on China’s economy and stated that it would be difficult to get another job.
In relation to their child, [details deleted]..
At the hearing, the Tribunal requested the applicant to obtain additional [regarding] various matters. Following the hearing, the Tribunal received a large volume of evidence regarding the applicant and his spouse’s medical history, [other documents]. The evidence received was supportive of the applicant’s [claims].
The Tribunal has also had regard to the numerous letters of support received from the applicant and his spouse’s work colleagues and friends and is satisfied on the totality of that evidence that they have integrated well into the Australian community where they have a supportive social network.
The Tribunal has carefully considered the evidence before it and while it gives some favourable weight to the applicant and his spouse’s employment and financial circumstances, of significance to the Tribunal are the circumstances of their newborn child. The Tribunal accepts that if the applicant returns to China with his spouse and child that they would likely experience emotional and psychological [hardship].
The Tribunal gives significant weight to the current circumstances in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no evidence before the Tribunal which suggests that the applicant’s subsequent behaviour regarding their obligations under the Act was of any concern.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal which suggests that there are any other instances of non‑compliance by the applicant known to the Minister.
The time that has elapsed since the non-compliance
The non-compliance occurred on 16 August 2016 when the applicant applied for the Subclass 190 visa. While the Tribunal acknowledges that this is a period of four and a half years during which the applicants have established themselves in Australia, the Tribunal also notes that the applicants have been on notice, since being notified by the Department in December 2019, that there was evidence of non-compliance in association with the visa application which may result in the cancellation of their visas. In the circumstances, the Tribunal gives limited favourable weight to this consideration in the exercise of its discretion.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which suggests that there have been breaches of law by the applicant since the non-compliance.
Any contribution made by the holder to the community
The applicant has claimed, and the Tribunal accepts, that the applicant has made a contribution to the Australian community through his employment in the manufacturing and mechanical industry, through his and his spouse’s donations to various charities and through the spouse’s volunteer work as a guide at the Maritime Museum. The Tribunal gives some weight to the contribution made by the applicant and his spouse in favour of not cancelling the visa.
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 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.
In relation to the mandatory legal consequences of cancellation, the Tribunal notes that cancellation would not necessarily result in the applicant and/or his spouse becoming unlawful and subject to detention as they have the option of applying for a further bridging E visa, which would enable them to lawfully remain in Australia until they would be able to depart. The Tribunal also acknowledges that if the applicant’s visa is cancelled, he would be subject to s.48 of the Act and would have limited options for lodging a valid visa application onshore without the Minister’s intervention. As the mandatory consequences of cancellation are intended by the legislation, the Tribunal gives this consideration limited weight in favour of not cancelling the visa.
As to the consequential cancellations under s.140, the Tribunal accepts that cancellation of the applicant’s visa would result in the consequential cancellation of the applicant’s spouse’s visa. The Tribunal acknowledges the hardship that may be experienced by the applicant’s spouse, as discussed above, if her visa is cancelled and she has to return to China with the newborn child.
In the exercise of its discretion, the Tribunal has also had regard to the best interests of the newborn child and accepts, as submitted by the applicant and his spouse, that he may face difficulties if he had to return to [China].
Having carefully considered all the evidence and weighed up all the relevant considerations, the Tribunal considers that the preferable decision in this case is to set aside the cancellation of the visa. While the Tribunal considers the provision of incorrect information and a bogus document to be serious as it undermines the integrity of Australia’s migration program, the Tribunal nevertheless considers that the best interests of the newborn child and the difficulties he may experience if he returns to China outweigh other considerations in favour of cancelling the visa.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 – Skilled – Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicant.
R. Skaros
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 2279

6 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction