Liu (Migration)

[2019] AATA 5980

Liu (Migration) [2019] AATA 5980 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuxuan Liu

CASE NUMBER:  1908438

DIBP REFERENCE(S):  BCC2017/3804907

MEMBER:Kira Raif

DATE:13 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 – Skilled – Independent visa.

Statement made on 13 September 2019 at 7:39am

CATCHWORDS
MIGRATION – cancellation – Independent (Permanent) (Class SI) visa – Subclass 189 –
incorrect answers – child not biological child of applicant – date of birth –
no evidence applicant adopted child – lack of evidence – credibility issues – refused to undertake DNA test – best interests of child – decision under review affirmed
 
CATCHWORDS
Migration Act 1958 (Cth), ss 101, 107, 109, 140

Migration Regulations 1994 (Cth), r 2.41, PIC 4017

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 Immigration to cancel the applicant’s Subclass 189 – Skilled – Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China born in February 1986. She was granted the Skilled Independent visa on 12 May 2016. On 8 March 2019 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 s.101 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 4 April 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 September 2019 to give evidence and present arguments. 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.

   Did the notice comply with the requirements in s.107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

8. 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 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision which contains the following information.

   a.The applicant made the application for the Skilled – Independent visa on 30 January 2016. The application included her partner Umit Emrah Kaplan and two children Brian Huang and Hanyu Liu.

   b.On the application form, the applicant gave details about her daughter Hanyu Liu, including her name and date of birth. The applicant signed a declaration that the information she provided was complete and correct in every detail.

   c.In her application the applicant stated that she was in a de facto relationship with Umit Emrah Kaplan, which commenced in December 2014 and that the father of her two children Brian Huang and Hanyu Liu was her ex-husband Song Huang.

   d.The applicant provided with the application a divorce decree dated 29 December 2015 showing that she and Song Huang divorced on 13 June 2013.

   e.The applicant provided with the application a birth certificate for her son Brian, which lists the applicant as the mother and Song Huang as the father. It is also signed by Song Huang.

   f.The applicant did not provide a birth certificate for her daughter Hanyu but included a notarial certificate stating the child was born in June 2013 in Inner Mongolia and specifying the applicant as the mother and Song Huang as the father.

   g.The applicant included with her application a statement in which she claimed that she and her ex-husband had a negative relationship and that he was unwilling to provide any support to their daughter and that she could not obtain family custody papers for the daughter. The applicant included Form 1229 – Consent to grant an Australian visa for the two children signed by Song Huang.

   h.The applicants were granted the Skilled – Independent visas on 12 May 2016.

   i.The Department received information indicating that the applicant and Song Huang may not be the biological parents of Hanyu and that she is the daughter of the applicant’s sister Ting Liu.

   j.The primary decision record refers to the movement checks which show that the applicant departed Perth airport on 12 June 2013 on a Cathay Pacific flight. This was 8 days prior to the birth of Hanyu. Cathay Pacific policy indicates a 32-week cut-off for pregnant women to fly.

   k.The overseas post confirmed that the content of the notary certificate relating to Hanyu is genuine but the notary office confirmed that both parents are not required to attend the office in person and only one parent is acceptable and in this case, only the mother attended.

   l.The Alashan Zuiqi Health Bureau informed the Department that on 20 August 2012 Yuxuan Liu gave birth to a baby girl. Yuxuan Liu’s mother applied for Hanyu Liu’s birth certificate where the time of birth was mistakenly completed.

   m.The Department also received information that Form 1229 – Consent to grant an Australian visa to a child under 18 – was signed by Song Huang as a blank document to facilitate the migration of his son Brian and he was unaware that his signature would also be used to infer parentage of the applicant’s claimed daughter Hanyu.

   n.The delegate noted that as Hanyu’s correct date of birth is 20 August 2012, it is not possible for the applicant to be her biological mother as she was in Australia between 2 June 2012 and 12 June 2013.

10. In her written submission in response to the NOICC the applicant stated that according to all legal documents, she and her ex-husband are the legal parents of Hanyu Liu and she needs to take the child with her. The applicant stated that she had applied for the visa for the child to make sure the child can stay with her and after the visa was granted, both children, Brian and Hanyu came to Australia and they have been living together in Australia. The applicant states that her ex-husband is the legal father in all official documents for her daughter because it was him who applied for the certificate of delivery for the child but once the relationship fell apart, he would not take the responsibility, had not paid maintenance and made things difficult. The daughter could not stay in China as her mother is in Australia and there are no court papers to make the mother the sole guardian. The applicant describes her relationship with her ex-husband, stating he was violent. The applicant states that the documents used for the visa application are genuine copies from China and she had never forged or provided fake documents to the authorities. She does not have guardianship papers for her daughter due to her ex-husband’s attitude and abusive behaviour. The applicant describes her settlement in Australia.

11. In her written submission to the Tribunal dated 6 April 2019 the applicant states that she completed the form to the best of her ability and understanding and only used genuine documents, which was recognised by the delegate. The applicant stated that she did not believe the delegate gave appropriate weight to her circumstances, in particular, her relationship with her partner and the best interests of the children, who would be affected by the cancellation, as well as to the family’s financial circumstances, referring to the existence of the mortgage.

12. In oral evidence, the applicant stated that while the birth certificate was not provided for her daughter, she did provide the notarial certificate, which should be equivalent to the birth certificate. The applicant stated that when making the application, she used all genuine documents and in March 2016 she provided a statement to the Department stating she could not provide custody documents for her daughter.

13. In oral evidence the applicant stated that the daughter is her biological daughter. The Tribunal invited the applicant to undertake the DNA test to confirm that relationship. The applicant said that she has many things in her life and would not be willing to do the DNA test because she is concerned that the hospital mixed up the records or there may be other problems. To the extent that the applicant claims there may have been a hospital mix-up and that the child may be found to be unrelated to her for that reason, the Tribunal also suggested that the applicant’s sister may do the DNA test to exclude any relationship with the child. The applicant confirmed that she was unwilling to engage in that process.

14. The Tribunal considered the applicant’s explanations. The applicant is well aware that her relationship with the child is central to the decision to cancel her visa. The applicant claims that the child is her biological child. If that relationship is established, it is likely to result in the setting aside of the cancellation of the visa. The issue can be easily resolved through a relatively quick and simple procedure of DNA testing. The Tribunal does not accept that the applicant is concerned about the hospital mix-up, given that the DNA testing would be completed in Australia by an entirely independent organisation and if the applicant is suggesting that due to a hospital mix-up, the daughter is not her biological daughter, that supports the finding that there is no biological relationship between the applicant and the child. In the Tribunal ‘s view, a more likely explanation is that the child is the child of the applicant’s sister, as is stated in the allegation set out in the primary decision record, rather than someone else’s child due to a hospital mix-up.

15. Given the significance of proving the relationship between the applicant and the child, of which the applicant is well aware, the applicant’s refusal to undertake the DNA testing to confirm her relationship with her claimed daughter, when taken together with other concerns set out elsewhere in this decision, offer strong indication, in the Tribunal’s view, that the child is not the applicant’s biological child and that the applicant is well aware of it. In the Tribunal’s view, that is the real reason for the applicant’s refusal to undertake DNA testing. The Tribunal has formed the view that the applicant is not a person of credibility and that she continues to provide untruthful evidence to the Tribunal concerning the child’s parentage.

16. The primary decision record indicates that the Department received information that Mr Huang did not sign the consent for both children to migrate. The applicant told the Tribunal that her former husband did sign the consent for both children but he later changed his mind. The applicant said that her husband had been difficult and abusive towards her and tried to make things difficult for her, so he changed his mind about signing the form. The applicant states that Mr Huang has never recognised this child. The applicant told the Tribunal that she sent her ex-husband the blank consent form 1229 but she said that he knew what he was signing because he agreed to sign but he is now using this to harm her. The applicant agreed that the form she had sent to Mr Huang was a blank form and it is difficult for the Tribunal to accept that Mr Huang knew that he signed the consent for both children, if the form was a blank form. The Tribunal prefers the evidence before the delegate that Mr Huang’s consent did not include the daughter. This is consistent with the evidence that Mr Huang never accepted the daughter.

17. The Tribunal is also mindful that the daughter is not mentioned in the divorce agreement. In her submission to the delegate the applicant explained that the daughter was not born yet but given the very short time between the divorce agreement and the birth of the child, the Tribunal does not accept that the court would have ignored the daughter’s interests. The applicant told the Tribunal that they could not agree, so the care of the daughter was left to her and they did not mention the daughter to the court clerk. They had agreed on the property settlement and there was no dispute about anything and Mr Huang did not recognise the daughter, so they did not mention the child. The Tribunal does not consider it plausible that the divorce agreement would mention one child but would not make any mention of the second child, even if there was agreement about the child’s custody and support. The applicant does not suggest there was any disagreement about the son and yet he is mentioned in the divorce agreement. The fact that the document makes no mention of the daughter supports the Tribunal’s finding that the daughter is not the child of the relationship between the applicant and Mr Huang, as the applicant claims.

18. The applicant said that she first came to Australia in June 2012. Mr Huang came to Australia around September 2012. They stayed together for a week, he then travelled to China and returned in November 2012. They were not living together from December 2012. The applicant said that her daughter was born 2 weeks’ premature and she claims the child was born on 20 June 2013. If that is the case, the child would have been conceived in October. When the Tribunal pointed out that the dates may not match, the applicant’s evidence changed and she said that Mr Huang came to Australia in late September or October, which contradicts her earlier evidence that he was in Australia in September and only stayed for one week with her. In the Tribunal’s view, that evidence, together with the applicant’s ability to travel a week before the child’s birth, supports the finding that the child was not born in June 2013 as the applicant claims.

19. The applicant told the Tribunal that she had informed the Department of everything. The applicant referred to her correspondence to the delegate in March 2016 when she told the Department that she could not provide custody papers for her daughter and informed the Department about it and offered to withdraw her daughter’s application. The applicant states that it is unfair that the visas were granted and now these issues are raised. However, the issue here is not the absence of custody papers for the daughter but the applicant’s claim that the child is the biological child of the applicant and Mr Huang. The Tribunal has formed the view that the child is not the child of the applicant and Mr Huang. The Tribunal has placed weight on the information that was before the delegate indicating that the child is not the child of the applicant and Mr Huang. The Tribunal places significant weight on the applicant’s refusal to undertake a DNA test to prove the relationship with the child and finds her explanation for it to be unpersuasive, given the significance of this evidence to the cancellation decision. The Tribunal also places weight on the fact that the applicant would have been very unlikely to be able to travel between Australia and China 8 days before the baby’s birth, even if she bought the ticket online as she claims. Her advanced pregnancy would have been very obvious to any airline employee.

20. The Tribunal acknowledges that the applicant had provided a number of documents relating to her daughter, including her ID card, passport and other documents. However, the applicant has not satisfied the Tribunal that these had been issued on the basis of any independent verification of the applicant’s relationship with the child. The Tribunal is not satisfied that these documents establish the applicant’s biological relationship with the child.

21. The Tribunal finds that the applicant claimed her daughter to be the child of herself and Mr Song Huang. As stated in the primary decision record, the applicant submitted with her application a notarised certificate which identifies her as the mother and Song Huang as the father of this child and in accordance with s.99 of the Act, information contained in a statement such as the notarial certificate is taken to be an answer on the application form. The Tribunal has formed the view that Hanyu Liu is not the child of the applicant and Mr Song Huang and that the answers the applicant gave with her application concerning the child’s parentage were incorrect.

22. Further, the applicant stated in her application that her daughter’s date of birth was 20 June 2013. The Tribunal has formed the view that this information was incorrect.

23. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given in relation to the parentage of Hanyu Liu and her date of birth. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. The Tribunal finds that there are grounds for cancelling the applicant’s visa.

    Should the visa be cancelled?

24. 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).

25. 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. Briefly, they are:

    The correct information

26. The correct information is that Hanyu Liu is not the biological child of the applicant and her former husband Mr Huang and the applicant has not provided any evidence to show – and does not claim – that Hanyu Liu is her adopted child. The correct information is that Hanyu is not the child of the applicant.

    The content of the genuine document (if any)

27. This is not relevant in the present case.

    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

28. The applicant included the two children in her visa application. An assessment of the applicant’s relationship with the children was central to the determination of whether the children met the secondary criteria as it was necessary to show that the children are dependent children, and members of the family unit, of the primary applicant. If the child was not the biological child of the applicant, her relationship with the applicant would have been assessed in relation to adoption and there is no evidence that this was done in the present case. Further, as the child has not turned 18, it was necessary to determine, for the purpose of PIC 4017, that each person who can determine where the child is to live gave consent for the child’s migration, or that the children meet the alternative requirements. Again, the child’s parentage was central to that assessment. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

    The circumstances in which the non-compliance occurred

1. The applicant states in her submission to the delegate that she has the legal responsibility for her daughter Hanyu and had to bring the child with her to Australia. The applicant states that her ex-husband refused to take any responsibility in relation to the child and there was nobody else to care for her. The applicant states that all the documents she submitted with the application were genuine. In oral evidence to the Tribunal, the applicant denied there was any non-compliance and states that the child is her biological child. For the reasons stated above, the Tribunal does not accept that evidence. The Tribunal has formed the view that the child is not the biological child of the applicant and there is no evidence of her being an adopted child of the applicant. The applicant’s belief that she had to bring the child to Australia does not justify, in the Tribunal’s view, the provision of incorrect answers.

   The present circumstances of the visa holder

2. In her submission to the delegate in response to the NOICC the applicant states that she and her two children are settled in Australia and she calls Australia home. The applicant states that she obtained her Master’s degree in Australia and started working in Perth and in a remote area. She has family and friends in Australia, her colleagues and students. She has met her partner and they have built up their family and she wants her children to grow up in Australia.

3. The applicant states that her partner and children have lived happily in Perth since 2017. The applicant refers to her relationship with her partner, who is a good father to her children, and the bond he has with the children. Her children have been attending the local primary school and both children have settled well in school. The Tribunal accepts that the family have settled in Australia and that the children attend the local school and have been integrated into the local community. The applicant states that she had bought a house. The applicant states that it would be devastating for the children to have to leave their school and friends.

4. The applicant told the Tribunal that she came to Australia in 2012 and had many marriage problems, and her husband was violent towards her. Whenever she had problems, she wrote to the Department and she obtained her visa. After her visa was granted, she learned from her parents that the date of birth was incorrect in the hospital records and she wrote to the Department seeking their advice, but received no response. The applicant states that in 2017 she moved to Perth and went to China to pick up her children and brought them to Australia. Since that time her children had been living and studying in Australia.

5. The applicant told the Tribunal that she bought a property and has a mortgage. Since she received the news about the cancellation of her visa, she has been worrying about her future and her children’s future. The applicant told the Tribunal that if her visa is cancelled, she would have to sell her property and she may not get a good price for it. The Tribunal accepts that if the applicant has no visa to remain in Australia, she may choose to sell her property, although she would be under no obligation to do so.

6. The applicant states that her partner does not speak Chinese and she cannot speak Turkish. He has a close relationship with her children and is a father figure to them. The applicant states that her children have a positive father figure but if they have to return to China, they may lose that relationship. The Tribunal is mindful that there is very little evidence before the Tribunal concerning the children’s relationship with the applicant’s partner. While the applicant claims that he plays a parental role and has developed a close relationship with the children and that his name is on the various school documents, there is little documentary or other persuasive evidence – for example in the form of social photographs, statements, school reports, medical records, evidence of social activities, etc – that establish the existence of a close relationship between the applicant’s partner and the children.

7. The Tribunal also notes that the family have spent a relatively short period of time in Australia. Their visas were granted in May 2016 and the children entered Australia in early 2017. (The Tribunal acknowledges that the applicant was previously in Australia holding temporary visas.) The period of the children’s residence in Australia has been for less than three years and the Tribunal does not consider this to be a significant period. The Tribunal is mindful that the applicant and the children had spent the majority of their lives outside of Australia and there is nothing before the Tribunal to suggest that the children had any difficulties with their schooling or social and community ties in their home country. Thus, while the Tribunal accepts that the family has integrated into life in Australia, the Tribunal is of the view that they would be able to do the same in their country of origin, should they make the decision to leave Australia if their visas are cancelled.

8. The applicant states that her son has been affected by her previous relationship and has a stutter and high level of anxiety. The child is seeing a speech therapist. She claims that her children have experienced a changing environment which has affected them. The Tribunal is mindful, however, of the applicant’s evidence that she brought the children to Australia in January 2017. The children have only been living in Australia for less than three years and it appears that the applicant was not overly concerned about the children’s changing environment or changes to their education system at the time she decided to bring them to Australia. The fact that the applicant made the decision to bring her children to a new country in 2017, being a new environment, cultural and linguistic surrounding, and to a new education system would suggest that she was not concerned about the changes to the children’s environment. The applicant states that the children were younger then and at present they do not know the Chinese characters and would be behind their peers in China. The Tribunal acknowledges that evidence but is of the view that given their ages, the children would not have any difficulties adapting to the environment in China where they have spent the early years of their lives.

9. The applicant states that she did write to the Department in 2016 and would not have made the decision if she knew that her visa could be cancelled but the Tribunal also notes that the full information was not before the Department at that time of visa grant and more information is before the Department now, which led to the cancellation of the visas. The Tribunal does not consider that the cancellation of the visas is unfair because the applicant acted on the decision to grant visas to her and her family.

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

10. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the above provisions, although the Tribunal is mindful that in her evidence to the Tribunal the applicant maintained that her daughter is her biological child and the Tribunal has formed the view that this information was incorrect.

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

11. The primary decision record indicates that the applicant applied for the Australian citizenship in June 2017 with both children as dependent applicants. The applicant stated in that application that Hanyu was born in June 2013 and that she was the daughter of the applicant and Song Huang. In August 2018 the applicant withdrew Hanyu’s application as she was unable to obtain the official custody documents. The Tribunal has formed the view that the information about the applicant’s relationship with Hanyu and the child’s date of birth was incorrect.

    The time that has elapsed since the non-compliance

12. The application for the visa was made in January 2016. More than three and a half years have passed since the non-compliance. In the Tribunal’s view, that is not a lengthy period of time.

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

13. There are no known breaches of the law. The applicant told the Tribunal that she always helped and supported others.

    Any contribution made by the holder to the community

14. The applicant refers to her long-term employment in Australia and her contribution through various activities in Australia. The applicant presented with her response to the NOICC evidence of her voluntary activities, including her work as a community teacher and her involvement with the Chinese Language Teachers’ Association and the Chinese Language Advisory Committee. In oral evidence, the applicant also referred to her contribution to the community. She refers to her employment and voluntary work for various educational entities. The Tribunal accepts that the applicant has made a contribution to the community.

15. 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 Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

16. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention although there are limited types of visas for which the applicant may be able to apply onshore. The applicant may also be subject to an exclusion period in relation to future applications made offshore. The applicant may also lose some of the entitlements she may have acquired as a permanent resident if she is no longer a holder of a permanent visa. The Tribunal acknowledges that the mandatory legal consequences may result in some hardship to the applicant.

    Whether there would be consequential cancellations under s.140

17. The primary decision record indicates that the visas held by the applicant’s de facto partner and children may be subject to consequential cancellation. The applicant told the Tribunal that the visas held by her partner and children have also been cancelled and the Tribunal acknowledges that if the applicant’s visa is cancelled, the other visas may also remain cancelled. The partner and children are not the subjects of this review.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child

18. There is no evidence, and the applicant does not claim, that she would be subjected to any form of harm or persecution if she returns to China. The Tribunal does not consider that non-refoulement obligations arise in this case.

19. The applicant’s partner and children reside in Australia but since their visas were cancelled, they may not have the right to remain in Australia unless granted other visas. The applicant has no other family in Australia and her family members are in China.

20. With respect to the best interests of her children, the applicant claims that her two children are now settled in Australia. They are used to the Australian schooling system and the Australian environment and would be behind if they were to attend a school in China as they have not learned how to write. The applicant refers to a close relationship between her children and her partner and she claims it is in the best interests of her children to have a stable family environment. She claims it would cause huge damage to the children if they do not have a father figure and the children had already experienced stress and anxiety. If the visas are cancelled, they would have the same experience and it would be damaging to their future. As noted above the applicant has not presented persuasive evidence of her children’s relationship with her partner. The Tribunal is also mindful that the applicant’s claims are not supported by any probative evidence, such as medical reports or other evidence such as from a health professional or child behaviour expert. The Tribunal accepts the applicant’s claim that her son attends speech therapy but there is no established link between the child’s speech and the family situation.

21. The applicant states that her children are aged 8 and 6. If she and her partner cannot live in the same country, the children will lose the father figure and that would add to the children’s anxiety and stress. Her children are doing well and are more confident and made friends in the community and attend many activities. If the visas are cancelled, that would all change and would add anxiety, stress and uncertainty to their lives. The applicant refers to her son’s speech issues. Given the very limited evidence about the children’s relationship with the applicant’s partner, the Tribunal is not prepared to accept that evidence.

22. As for the children’s settlement in Australia, the Tribunal has noted above that the children have spent little time in Australia, arriving in early 2017. The fact that the children have been able to settle in Australia without any difficulties – on the applicant’s own evidence – and their young age, would indicate that they would be equally able to re-settle in China, where they would also gain the support of extended family, including grandparents who cared for the children in their young age. Further, the Tribunal has formed the view that the applicant is not the biological parent of Hanyu. The Tribunal is not satisfied that the biological parents or those who can decide where the child is to reside have given consent for the child’s migration. In such circumstances, it may be in the best interests of that child to be reunited with her parents outside of Australia. The Tribunal has formed the view that the best interests of the children are neutral with respect to the exercise of discretion.

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

23. The applicant claims that she has always done the right thing and notified the Department of the correct information. After her family settled in Australia, her and her family’s life would be changed dramatically, which would be a ‘catastrophe’ to her. The applicant states that she wants to give a better future to her children and wants them to grow up happily.

24. The applicant states that if her visa is cancelled, it may bring economic difficulties. Her evidence is that if the visa is cancelled, she would have to sell the property and she would not get the same price that she bought it for. However, she also told the Tribunal that she has not explored and does not know what the property prices are like and she only relies on the information she has read. The Tribunal does not consider that to be sufficient to make a positive finding that the applicant would lose money on the sale of property. Nevertheless, the Tribunal accepts that the applicant would have paid stamp duty and interest and there may be financial loss if the property is sold.

25. The applicant refers to the hardship that the cancellation of the visa would cause to her children and the Tribunal has considered these claims elsewhere.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant has not complied with s.101 of the Act because she gave incorrect answers in her application concerning her maternity of her daughter and the child’s date of birth.

27. The Tribunal acknowledges that considerable hardship may be caused by the cancellation of the visa because it may lead to a break-up of the applicant’s relationship with her present partner and the separation of her de facto partner and the applicant’s children, who may treat him as a father figure. If the family were to leave Australia, the children would be uprooted and required to return to China, giving up their present schooling and friendships and the environment they are used to. Although the Tribunal has formed the view that the applicant’s evidence concerning the hardship to the children is exaggerated – because the Tribunal is of the view that at their young age, the children would have no difficulty re-settling in China, as they appear to have had no difficulty settling in Australia in 2017 – the Tribunal accepts that hardship may be caused to the family, and the children, if the visas are cancelled. The Tribunal accepts that if the applicant was required to leave Australia, she may have to give up on her employment and voluntary activities and sell the property and such matters may also cause hardship to the family. Her relationship with her partner may not continue, if the couple cannot relocate to the same country. Overall, the Tribunal accepts that considerable hardship would be caused to the family by the cancellation. Such matters do not favour the cancellation of the visa.

28. Against these considerations, the Tribunal notes that the breach was significant. The Tribunal places greater weight on the fact that the decision to grant the visa was based on incorrect answers. The applicant’s relationship with the child was central to determining whether the child was entitled to the visa and, unless the applicant could show that the requirements of PIC 4017 were met, it is possible that the applicant herself may not have been granted the visa if it was known that the child was not her child. The Tribunal also places weight on the fact that the applicant continued to provide incorrect information in her evidence to the Tribunal, by claiming the child was her and Mr Huang’s biological child, even though the Tribunal has formed the view that that evidence was incorrect. She also provided incorrect answers in the citizenship application. That is, there were other instances of non-compliance. The Tribunal finds that the circumstances in which the non-compliance occurred, the other instances of non-compliance and the fact that the decision to grant the visa was based, in part, on incorrect information, outweigh other considerations. The Tribunal would reach this view even if it were to find that the best interests of the two children require their presence in Australia.

29. Considering the circumstances as a whole, and having had regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 – Skilled – Independent visa.

    Kira Raif
    Senior Member