LU (Migration) - [2017] AATA 932

LU (Migration) [2017] AATA 932 (30 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Shanshan LU
Master Yinuo LI
CASE NUMBER:  1614023
DIBP REFERENCE(S):  BCC2014/2546624
MEMBER:R. Skaros
DATE:30 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 30 May 2017 at 9:19am

CATCHWORDS
Migration – Cancellation – Employer Nomination (Permanent) Visa – Subclass 186 (Employer Nomination Scheme) – Provision of bogus documents – Contrived employment arrangement – Applicant claimed no deliberate part – One child has Australian citizenship – Can acquire Chinese citizenship – Credibility issues – Serious and significant breach
LEGISLATION
Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014), Schedule 7
Migration Act 1958, ss 5(1)(b), 65, 103, 107, 109(1), 140(1), 362, 375
Migration Regulation 1994, r 2.41
CASES
Ahmed v MIBP [2016] FCCA 708
MIAC v Khadgi (2010) 190 FCR 248
Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202
Lloyd (Pauper) Appellant v Grace [1912] AC 716

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 186 - Employer Nomination Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with s.103 of the Act which requires bogus documents not to be given. 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 other visa 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 other applicant.
The applicant provided a copy of the decision record with the application for review.
The applicant made a request for access to written material under s.362A. On 15 December 2016 the Tribunal granted partial access to written material. Folios 1 to 6 and 18 were excluded from release as they were subject to a certificate under s.375A of the Act.
On 17 February the Tribunal received detailed submissions from the representative which provided a summary of the applicant’s immigration history, background leading up to the cancellation and matters relevant to the exercise of discretion.
The applicant appeared before the Tribunal on 23 February 2017 by telephone from China to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jason Chen, a friend of the applicant. 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 agent attended the hearing by telephone.
At the hearing the Tribunal informed the applicant about the s.375A certificate and explained to her that this restricted the Tribunal’s disclosure of those documents. The Tribunal explained to the applicant that it had regard to the information contained in the affected documents, and noted that even though the relevant folios had not been released to her, the substance of the adverse information contained in those documents was provided to her in the notice of intention to consider cancellation and was set out in some detail in the decision record.
Whilst considering the review, the Tribunal reviewed the content of the s.375A certificate and formed the view that it is not valid. Even though the applicant was aware of the substance of the information contained in the relevant folios, the Tribunal nevertheless decided to provide a copy of the affected folios, subject to obligations under the Privacy Act, so as to rectify any potential errors that may have occurred in response to the request for access to documents.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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.
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?
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.103 in the following respects:
Particulars of grounds for cancellation
On 20 March 2014 you lodged an application for an EN 186 visa (Employer Nomination Scheme).
A copy of an employment contract dated 01 January 2014 between Shanshan Lu and Oak Financial Partners was provided to the Department in support of the ENS application. The signature block of this contract states the signature was from Cameron Vallve, Managing Director Valkyrie Private Wealth Management Pty Ltd t/a Oak Financial Partners. The contract is also signed by Shanshan Lu agreeing to the terms and conditions.
On 08 August 2014 your EN 186 Employer Nominated Scheme visa was granted by the Department on the basis of the sponsorship provided by Valkyrie Private Wealth Management Pty Ltd t/a Oak Financial Partners.
Since the grant of the EN 186 visa the Department has become aware of the following contrary information:
A letter was received by the Department from Mr Cameron Vallve, Managing Director, Oak Financial Partners dated 09 September 2014. A copy of an employment contract was submitted with the letter.
The letter stated in part:
The employment contract he gave me which appears to be from our company (using our logo) has a signature next to my name which is definitely not my signature, eg. Someone else has signed this without my knowledge or consent.
The employment contract (2 pages) is completely different from any contract our business has ever used. It's also written in broken English in parts (eg. 'you self' and 'you' instead of 'your' throughout), and has clearly been written by someone other than me or my HR Manager who has excellent grammar. Our employment contracts are typically 20+ pages long and don't look anything like this.
The address (4/224 Upper Heidelberg Rd) and phone number on the Approval letter from the Dep 't of Immigration were once the correct details of our businesses, but these are now old and have not been used for over 4 years.
Nobody has ever been employed at either of our businesses on an Immigration Visa at any point in time, and I am certain of this as I am the founder of both companies.
Although the signature on the contract purports to be Mr Vallve's signature, Mr Vallve has stated to the Department that the contract was signed by someone other than him and without his knowledge or consent.
The delegate considered that the employment contract dated 1 January 2014 offering the applicant a position of Marketing Specialist (Manager) is a bogus document within s.5(1)(b) of the Act.
The applicant responded to the notice by providing a statutory declaration dated 17 August 2016 and supporting documents. Those documents included a copy of a Chinese passport for the applicant’s first son, Yinuo LI (Roy) (DOB: 12.10.2010), School report for Roy - Semester 1 Kindergarten issued by Kent Rd Public School in Marsfield, NSW, birth certificate for the applicant’s second son, Liam Lee (DOB: 02.09.2015) who was born in Australia and a copy of Liam’s Australian passport.
In her statutory declaration the applicant claimed that she engaged the Awesome Group in Shanghai China who promised to find an employer in Australia that would sponsor her for permanent residency. She indicated that no details of the employer or the job were disclosed to her at the time. She stated that the Awesome Group asked her to sign some forms and documents which included an employment contract. When the applicant asked for the details of the contract she was informed that if a permanent visa was granted this would be disclosed to her. The visa was granted on 08 August 2014 and the applicant arrived in Australia with her son around 4 October 2014. The applicant claimed that since arriving she attempted a number of times to contact Awesome Group to discuss commencing employment. The applicant claimed that the staff of Awesome Group avoided her and did not let her contact the employer directly. On 2 September 2015 the applicant’s second son, Liam Lee, was born and is an Australian Citizen by birth. The applicant stated that she had no idea the employer who sponsored her did not actually offer to employ her and that it was not until she received the Department's letter dated 25 July 2016 that she learnt the truth about the employment contract. She stated that if Mr Vallve’s information is true then she considers herself an innocent party adversely affected by Awesome Group's wrongdoing. The applicant made claims about the effect the visa cancellation would have on her and her children, which the Tribunal has considered further below.
At the hearing the Tribunal discussed with the applicant the adverse information set out in the notice which it explained is relevant to whether there had been non-compliance with s.103 which requires no bogus documents to be given. The applicant stated that she had trusted the Awesome Group because they had successfully got Subclass 163 visas for her parents in May 2013. She wanted to live in Australia with her parents. The agency promised to find her a job in Australia based on her experience. She gave evidence that she signed a contract with the agency, paid three instalments totalling RMB 1 million, for them to help her find work and immigrate to Australia. When asked if she had attended an interview or whether the agency had arranged for her to speak to the proposed employer, she stated no they only asked her to provide a CV. The Tribunal asked the applicant if she did not get suspicious about the genuineness of the employment given she had not attended an interview and had not been given any information. She stated that she was not suspicious at all. The Tribunal found it difficult to believe that the applicant would not have been wary of the arrangement given she had not been given information about the employment and had not attended an interview for the position. When this concern was discussed with the applicant, she stated that at the time the agency had frequent contact with her parents and successfully applied for her parents. She had great trust in the agency that they would find a suitable position. The Tribunal finds it difficult to accept that the applicant genuinely believed that the employment was legitimate in circumstances where she had not attended an interview, spoken to the proposed employer or been given details about the employment.
The Tribunal asked the applicant if she had signed the contract, she initially stated yes but it was blank and things had to be done. The Tribunal clarified with the applicant that it was asking about the employment contact with Oak Financial Partners and whether she had signed that employment contract. The applicant then stated that she did. When asked about the information contained in the employment contract, she stated that it contained information about the position and duties, the salary and the address of the Company. When asked if she took a copy of the contract, she stated that she did. When asked why she did not contact the employer after she came to Australia, she stated that after she came to Australia she contacted Awesome and they recommend a person to her that would negotiate between her and the Company and she maintained contact only with the agency. The Tribunal considers that if the applicant believed that the employment offered to her by Oak Financial was genuine as she has claimed then she would have made direct contact with the employer, whose details she indicated had been included in the employment contract, soon after arriving in Australia or at least after Awesome had not responded to her enquiries about the employment. When this concern was discussed with the applicant at the hearing, she stated that she had trust in Awesome and asked them to contact the employer for her and to tell her when she could go to work. She then stated that the contact was in Melbourne but there was no specific address and no contact details. The Tribunal has had regard to the applicant’s evidence but considers it inconsistent with her earlier evidence that the contract, of which she took a copy, had the contact details of the Company. Of further concern is that Oak Financial Partners, as confirmed by the applicant, is located in Melbourne however the applicant had been living in Sydney. The fact that the applicant was not even living in the same state as her nominating employer casts further doubt over her claim that she believed the employment was genuine.
At the hearing, the Tribunal explained to the applicant that there are obligations for employer sponsored visa holders to commence work with their nominating employer. The Tribunal noted that she had not commenced the employment promised to her and had not made any complaints about the agent or contacted the Department of Immigration to report the agent and seek advice. The Tribunal formed the view that the applicant’s failure to report the agent or make relevant enquiries with the Department, suggests that she was aware that the employment with Oak Financial was not genuine. When this concern was discussed with the applicant, she stated that she did not know clearly about the Subclass 186 visa and it was later when her lawyer told her that she realised she had to contact her employer after coming to Australia. She stated that Awesome did not tell her anything in particular and she relied on them to make contact on her behalf and she kept waiting for them to tell her. She stated that she had been trying for a long time to contact the agency, until April / May 2015 and then she was 5 to 6 months pregnant and it was not suitable for her to work. When asked why she had not made a compliant about the agent given 6 months had passed and she had not started the promised employment, she stated because she did not understand the 186 visa or what she should do in the circumstances. The Tribunal is not satisfied with the applicant’s response and considers that if the applicant genuinely believed that the employment arrangement was indeed genuine, she would have made every effort to inform herself of her obligations, by either contacting another agent/lawyer for advice or contacting the Department, or she would have at least have made efforts to contact the employer directly.
The Tribunal asked the applicant if there was any other information she wanted the Tribunal to consider regarding the non-compliance. The applicant stated that during the whole process she followed instructions of Awesome. She provided her CV, IELTS and had no direct contact with the employer. She was the victim and after she came to Australia they let her wait and prevented her from work. She was not aware of the consequences of the law or that she should have complained to the relevant Department or something else. The Tribunal put to the applicant that she would have signed forms or given the agent authority to act on her behalf and had the obligation to ensure that information provided on her behalf was correct and that she understood what type of visa she was applying for and her obligations under that visa. In response, the applicant stated that she was negligent in that regard and as a lay person she trusted Awesome with the whole process. She knew she should work for the employer but was not aware of a time limit and thought it was an adjustment period and she should wait.
The Tribunal has considered the evidence before it and notes that the applicant paid a large sum of money, RMB 1 million is equivalent to approximately $175,000[1], to the agent which, as she claimed, was for the agent to find her suitable employment and immigration to Australia. If this was the true nature of the agreement, then the applicant would, in the Tribunal’s view, have made a concerted effort to find out if, and how, she could take action against the agent given their failure to provide the services promised in the agency agreement that they would find her employment in Australia. The applicant’s failure to make enquiries about her rights, the agent’s obligations and her avenues of redress, after arriving in Australia casts considerable doubt over her claim to be an innocent victim.
[1] Using the exchange rate as at 31 March 2014 as guided by rates used in the business skilled migration - >
The combination of all of the above concerns, strongly suggest that the applicant was aware that the employment arranged between her and the sponsoring employer, Oak Financial Partners, was not genuine and that information provided with the application regarding the employment had been contrived for the purpose of securing a migration outcome for the applicant and her child.
The Tribunal has considered the relevant evidence before it and for the reasons that follow, has found that there was non-compliance with s.103 in the manner particularised in the notice.
Section 103 of the Act requires 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.
Although the applicant stated that she believed the employment contract was genuine, she did not dispute the information provided by Mr Vallve, the Managing Director of the sponsoring Employer – Valkyrie Private Wealth Management Pty Ltd t/a Oak Financial Partners, to the Department which indicates that the employment contract that was provided with the visa application, does not resemble the Company’s employment contacts, was signed by someone other than Mr Vallve without his knowledge or consent.
The Tribunal has first considered whether the employment contract is a ‘bogus document’. The evidence in this case, which is not disputed, is that document does not resemble the employment contacts issued by Oak Financial Partners and that the signature on the employment contract is not that of the Managing Director, Mr Vallve, and has been signed without his consent or authority. The Tribunal is satisfied on the evidence before it that the employment contract, 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. The Tribunal accordingly finds that the employment contract is a bogus document within the meaning of s.5(b) of the Act.

As to whether the applicant had given the bogus document or caused it to be given, the Tribunal is satisfied, for the reasons that follow, that she has.
The Tribunal has considered the representative’s submission that the Director of Awesome has been subject to disciplinary action by the registration authority on the basis of a complaint made by the proposed employer. The agent referred to the OMARA decision record in respect of Mr Jun Cao which was on the Department’s file. The agent’s business is noted as JC Migration and Education. The Tribunal notes that the decision was relevant to the nomination application that was lodged without the nominator’s consent or knowledge and makes limited reference to the agent’s (Mr Jun Cao) dealings with the applicant. The decision record refers to individuals who gave the agent documents belonging to the nominating company however it does not shed much light on whether the applicant had dealings with those individuals directly and whether there was some other association between them and Mr Jun Cao. The Tribunal has not had the benefit of taking evidence from anyone other than the applicant regarding her dealings with the Awesome Group and has only assessed her evidence when considering the nature of that agreement.
The Tribunal accepts that the applicant did not actually give the bogus document to the Department with her application, however, she did authorise an agent to lodge the application on her behalf and as such had caused the bogus document to be given. The applicant in this case signed an agency agreement and paid a fee for the Awesome Group to find her employment and secure a visa for Australia. The applicant gave evidence that she trusted the staff of Awesome Group and relied on them to prepare and lodge her application. The representative submitted that the applicant had no knowledge of Australian migration laws and held total trust and confidence in Awesome as they had over 10 years’ experience in Australian migration. It was also submitted that the applicant trusted Awesome to comply lawfully with her instructions.
The Tribunal has considered the above submissions but nevertheless considers that the agent, having been engaged by the applicant, acted within the scope of the authority given by the applicant to lodge an application on her behalf. The evidence before the Tribunal indicates that the applicant did not play an active role in her own visa application and made little effort to check the documents and information being lodged on her behalf. She engaged an agency to secure a visa for her to travel to Australia and turned a blind eye to how that outcome was achieved. In the circumstances, the Tribunal finds that the applicant is liable for the actions of her agent.[2]
[2] Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; Lloyd (Pauper) Appellant v Grace [1912] AC 716 as cited in Sran at paras.63 and 78.
Having considered the evidence, the Tribunal is satisfied that the applicant has caused a bogus document to be given to the Department. The Tribunal accordingly finds that there was non-compliance with s.103 by the applicant in the way described in the 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 and have been considered by the Tribunal as follows.
The correct information
The Tribunal considers that the correct information is that the applicant was not offered the nominated position of Marketing Specialist (Manager) by Valkyrie Private Wealth (t/a Oak Financial Partners).
When the above was discussed with the applicant at the hearing, she stated that she was eager to work for the employer and made constant attempts to get in contact so she could start working but did not know what was going on. The agency did not tell her anything, the employer did not contact her and she is a victim. She stated that she will look for new employment and will work and has provided her CV to a few companies.
For the reasons discussed above, the Tribunal does not accept that the applicant was an innocent victim. If the applicant believed that the information provided about the proposed employment was indeed genuine, she would have at least been living in Melbourne, where she told the Tribunal the employer was located, and not in Sydney. The applicant indicated that she had a copy of the employment contract, which had the contact details of the nominating employer. The Tribunal acknowledges that the contact information on the employment contract was not current however the applicant could have made some effort to find the current details of the employer, through an internet search, and contact them directly. The Tribunal also considers that if the applicant had indeed made numerous attempts to contact the agency about commencing employment without success, then she would have sought to take some action against the agency to whom she had paid a substantial sum of money to secure the employment for her. The applicant’s failure to seek advice or take any action against the agent strongly suggests that the applicant was aware that the information provided regarding the proposed employment was not correct and was contrived for the purposes of securing a migration outcome.
The applicant’s willingness to look for employment does not overcome the fact that incorrect information has been provided about employment which was not genuine which resulted in her being granted a visa.
The content of the genuine document (if any)
In relation to this consideration, the applicant stated that she thought the employment document was genuine and trusted the Awesome Company to submit her application and had no idea how they operated. These claims have been more appropriately considered elsewhere in this decision.
It was held in the case of Ahmed v MIBP[3] that this consideration requires regard be had to the genuine version (if any) of a document found to be bogus. Although the Tribunal has found the employment contract to be a bogus document, there is nothing before the Tribunal to indicate that there is a genuine version of that document.
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
[3] [2016] FCCA 708 (Judge Barnes, 7 April 2016) at [79]).
Some of the common requirements for the grant of the Employer Nomination Subclass 186 visa include that the position to which the application relates will provide to the applicant the relevant employment and that the position is still available to the applicant. The Tribunal considers that delegate who granted the applicant the employer nomination visa would have had regard to the information contained in the employment contract indicating that the applicant had been offered employment as a Marketing Specialist with Oak Financial Partners. The Tribunal considers that the decision to grant a visa was based, partly, on incorrect information or a bogus document.
When this factor was discussed with the applicant at the hearing, she did not dispute the information and stated that if she had the opportunity she would continue to apply for work and can find jobs in Australia and has received the reply of certain companies. The Tribunal has had regard to the applicant’s evidence however this does not alter the fact that at the decision to grant the applicant the Subclass 186 visa was in part based on the bogus employment contract and the information contained in it.
The circumstances in which the non-compliance occurred
The non-compliance occurred when the bogus document, namely the employment contract between the applicant and Oak Financial Partners, was provided to the Department with the visa application.
When this factor was discussed with the applicant at the hearing she stated that she had no idea and that it was all the work of Awesome. The Tribunal expressed its concern that the applicant had made little effort to check the information provided on her behalf. The applicant stated that she knows little about the Subclass 186 visa and Australian immigration law and could only rely on Awesome as they were her only means to contact the employer and they kept her hanging.
In the written submissions to the Tribunal, the representative stated that the applicant played no deliberate part in producing or procuring the bogus document. It was submitted that the applicant was deliberately led to believe that the employment contract document is genuine and represented her proposed employment conditions. As she had no knowledge of Australia’s workplace practices or Australian migration she trusted Awesome. It was submitted that the applicant’s signing of the document and the provision of it to the Department with the 186 visa application was involuntary to the extent that it was tainted by alleged fraud. It was submitted that the applicant’s intention at the time of travelling to Australia were genuine – i.e. to find meaningful employment in her field of work and enjoy the Australian way of life. It was submitted that had the applicant known of the alleged fraud the document would not have been relied upon in her visa application as she would not have participated in any action that was contrary or capable of jeopardising her long-term goal of sitting in Australia. It was submitted that the applicant had no way of possessing the proper knowledge of the alleged fraud at the time the document was provided to the Department and that she expected Awesome to comply with their obligations and expected them, contractually and morally, to comply with their professional obligations.
The Tribunal has considered the above submissions. Firstly, the Tribunal notes that the applicant made limited effort to inform herself of her rights and the agent’s professional obligations, and on her own evidence relied completely and unquestionably on Awesome without checking the information provided on her behalf. In these circumstances, the Tribunal considers that the applicant is responsible for the conduct of the agent, even if she did not produce or procure the bogus document herself. The Tribunal considers that if the applicant had been led to believe that the employment contract is genuine and represented the conditions of the employment, and had been defrauded by the agent as claimed, then she would made efforts to seek advice and/or inform herself of her rights and the agent’s obligations and would have sought to take some action against the agent or would have at least made a complaint. The applicant’s failure to take any action against the agent despite claiming to have contacted the office on numerous occasions about the promised employment strongly suggests that she was aware that the employment arrangement with Oak Financial Partners was not genuine.
The Tribunal accepts that the applicant did not produce or procure the bogus document. The Tribunal also accepts that the applicant does not possess knowledge of Australia’s workplace or immigration laws and that she trusted Awesome. The Tribunal however is not satisfied that these factors establish that the applicant was not aware that the employment was not genuine and that she would not have relied on the employment contract in her application. The evidence before the Tribunal, as discussed above, strongly indicates that the applicant was aware that the employment agreement was not genuine. On her own evidence, the applicant did not attend an interview for the position nor did she at any time have any communication with the employer who offered the nominated position. This, in the Tribunal’s view, would have alerted the applicant about the legitimacy of the employment and, had she been concerned, would have led her to make further enquiries about the employment. Furthermore, the applicant’s conduct after travelling to Australia – i.e. by choosing to live in Sydney rather than in Melbourne where she indicated the employer was located, also suggests that she was aware that the employment was not genuine. Furthermore, her failure to make direct contact with Oak Financial Partners after arriving in Australia in circumstances where had a copy of the employment contract confirming her employment as a Marketing Manager with the Company also indicates that she was aware the employment was not genuine.
The present circumstances of the visa holder
The representative advised the Tribunal in the written submission that the applicant had returned to China with her two sons in December 2016 so that the children can spend Christmas and Chinese Lunar New Year with their father, Mr Yongyi Li. The representative advised that since the applicant’s visa cancellation, Mr Li has not been able to obtain a visitor visa to travel to Australia and see the children and that the applicant found it difficult to look after the two children in Australia on her own. It was submitted that the applicant is keen to return to Australia as soon as possible so that her eldest son can resume his education. She is ready, willing and able to seek and secure employment in Australia and having sought proper immigration legal advice is now full aware of the conditions to which the visa is subject.
At the hearing the applicant confirmed that she had been residing in China with her children. When asked if her parents were in Australia, she stated that they were currently in China as her father has a business and her mother returned home. She gave evidence that her husband is currently employed in China with a business that imports/exports LED and that he has been in that position for the last 18 months. She is currently not working.
The applicant requested the Tribunal to consider her two children. She stated her visa has been cancelled and the children’s father does not have a visa to travel to Australia and the children need a guardian in Australia. She stated that she does not want to deprive the children, especially Liam who is an Australian citizen, of an education in Australia. The applicant gave evidence that her son Liam is residing in China as the holder of a visa that allows him to stay for up to 180 days.
The Tribunal has considered the above submissions and accepts that the applicant would like to return to Australia as soon as possible with her children. It also accepts that she would like her children to benefit from the Australian education system. While the Tribunal gives some weight to these considerations in the applicant’s favour, it also considers that the applicant’s children would not be deprived of an education in China. The applicant’s older son, Roy, is a citizen of China and would be able to resume his primary school education in China.
The Tribunal acknowledges that Liam is an Australian citizen and has had regard to the submission that he is not a Chinese citizen and would not be entitled to the same rights as citizens in China. The Tribunal gives some weight to the fact that the applicant’s younger son is an Australian citizen however it also balances this against the fact that the child obtained his citizenship on the basis that, at the time of his birth, the applicant was the of the Subclass 186 (permanent residence) visa, which, as Tribunal has found above, had been granted on the basis of a bogus document.
The Nationality Law of the People’s Republic of China 1980 allows foreign nationals to restore or acquire Chinese citizenship provided certain criteria are met. The law indicates that an Australian citizen child with Chinese citizen parents may acquire Chinese citizenship provided they do not retain foreign nationality (Article 8) and is willing to abide by China's Constitution and laws (Article 7).[4] When this was discussed with the applicant at the hearing, she stated that she does not want Liam to be a Chinese citizen and that she had made enquiries after the cancellation about foreigners in China and how he can stay with his parents but they did not give her explicit information about how he can be granted Chinese citizenship. The representative submitted that the applicant does not want to acquire Chinese citizenship for Liam and it would be difficult to relinquish Australian citizenship as it would not be in the child’s best interest.
[4] Nationality Law of the People's Republic of China 1980 (China) effective as of 10 September 1980. >
The Tribunal has considered the applicant’s response and submissions, and while it acknowledges that the applicant may not want her son to relinquish his Australian citizenship so as to acquire Chinese citizenship, the Tribunal considers that to be a matter for the applicant and Mr Li, and is satisfied that it is within their control as his parents to acquire Chinese citizenship for Liam should they wish to do so.
The Tribunal is satisfied that the applicant and her two children can continue to live in China with the children’s father as a family as they have been doing since December 2016. If the applicant is not able extend Liam’s temporary residence visa or cannot obtain some form of ongoing residence visa for him to remain in China, Chinese law nevertheless provides an option for him to acquire Chinese citizenship which would enable him to remain in China indefinitely with his parents and brother.
The Tribunal has had regard to the submission that the applicant is willing to seek, and is able to secure, employment in Australia and considers that if the applicant is able to secure genuine employment in future, it is open for her to apply for another employer sponsored permanent visa which she would be able to apply for from China.
The applicant also gave evidence about the impact of the cancellation on her two children. The Tribunal has considered that evidence together with the written submissions provided by the representative under the heading Australia’s international obligations.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act and any other instances of non-compliance by the visa holder known to the Minister.
The Tribunal makes no adverse findings in respect of the applicant’s obligations under Subdivision C of Division 3 of Part 2 of the Act or any other instances of non-compliance. The Tribunal’s concern about the applicant’s conduct after travelling to Australia has been more appropriately considered under other considerations of the discretion.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal to suggest that the applicant has breached any law since the non-compliance.
The time that has elapsed since the non-compliance
The non-compliance, being the provision of provision of a bogus document with the visa application, occurred on 20 March 2014. The time that has elapsed since the non-compliance is therefore just over 3 years.
Any contribution made by the holder to the community.
The applicant has not submitted, and there is no evidence before the Tribunal, regarding any contributions made by the applicant to the community.
Other considerations
Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

The representative made detailed submission addressing some of the above factors which the Tribunal has considered as follows.
Consequential cancellation under s.140 of the Act
It was submitted that the cancellation of the applicant’s visa resulted in the consequential cancellation of the eldest son’s visa and that he has returned to China with his mother.
The younger son, Liam, is an Australian citizen and he will not be affected by s.140 of the Act. There is no evidence before the Tribunal to suggest that any action will be taken to revoke Liam’s citizenship. Liam is currently residing in China with his parents and brother. Technically, Liam can reside in Australia and be cared for by either a guardian or possibly his grandparents should they wish to travel to Australia on their 163 visas. However, for reasons detailed further below, the Tribunal considers that it is in Liam’s best interest that he be cared for by both parents and that the family unit remain intact. All members of the family unit are currently living in China and have been there since December 2016 and the Tribunal is satisfied that the family can continue to live together in China. As discussed above, Liam can, if he is unable to secure a long term residence visa in China, acquire Chinese nationality. Separation of the family unit is therefore not a necessary consequence of the cancellation.
Another circumstance which the Tribunal has considered which was noted by the delegate in the decision record is that the cancellation of the applicant’s visa will impact the partner visa application made by Mr Li. The Tribunal accepts that if the applicant’s visa is cancelled, Mr Li’s partner visa will not be granted. The Tribunal gives limited weight to this consideration as Mr Li is able to continue to reside in China, with the applicant and their children, where he is currently employed.
Whether the visa cancellation may result in Australia breaching its international obligations?
The representative made detailed submissions regarding Australia’s obligations under the Convention on the Rights of the Child (CRC).
It was submitted that the cancellation will directly affect the applicant’s children, one of whom is an Australian citizen. It was submitted that the applicant’s older son is 6 years of age and has spent a better part of 3 years in Australia. It was submitted that the older son speaks and reads English, identifies as an Australian and is struggling to adjust in China and cannot read Mandarin. It was submitted that the cancellation should be set aside so that no further interruption occur s to his education and social development.
The Tribunal has considered the above submissions. The Tribunal accepts, based on the school reports from Kent Rd Public School in Marsfield that Roy attended Kindergarten in the 2016 academic year. The Tribunal accepts that Roy lived in Australia for a period of 2 years and 2 months, between October 2014 and December 2016, with his mother and that during that time he learned to speak and read English and adjust to life in Australia. The Tribunal acknowledges that Roy may have experienced some adjustment difficulties upon returning to China, including with learning Mandarin, however, Roy is still very young and the Tribunal is satisfied that he will, after a period of adjustment, adapt to the study environment, language and lifestyle in China. Roy is a citizen of China and the Tribunal is satisfied that Roy will readjust to life and the language in China with the assistance of his parents who have lived the majority of their lives in China and are fluent in Mandarin.
The representative also referred to Articles 18, 18(2), 24 and 26 of the CRC which primarily relate to the recognition that both parents have the primary responsibility for the children, the best interests of the child, assistance by States to parents in the development of institution and facilities and services for the care of the children, the right of the child to enjoy a high standard of health and access to health services, right to benefit from social security and other rights in accordance with national law.
It was submitted that the Australian citizen child will be deprived of his rights afforded under the Australian law should his mother’s visa remain cancelled. It was submitted that the Australian citizen child is entitled to benefit from the rights afforded under Australian law and that it would be to his detriment to remain in China. It was submitted that he is not a citizen of China and will not be entitled to the same rights as citizens. It was submitted that the living and education standards in China are below that of the standards in Australia. It was submitted that China experiences dangerous level of air pollution which has adverse effects on health. The representative provided referenced to a number of articles regarding the high levels of air pollution in China and its effects on the health of the population. It was submitted that the applicant hopes to see her sons benefit from Australia’s culture, the quality of air, the quality of education, the quality of social support services and Australian quality of life.
Reference was also made to Article 25 (2), of the Universal Declaration of Human Rights which provides that motherhood and childhood are entitled to special care and assistance, which is adopted by the CRC, and is a consideration in the Department’s policy. It was submitted that the welfare and rights of the children are of paramount importance. It was submitted that the Tribunal should consider the long-term effects that the visa cancellation may have on the children and on the benefits to them should they remain in Australia, where one of the children is a citizen. It was submitted that the cancellation is to the detriment of the applicant’s children who are innocent third parties.
At the hearing the applicant also gave evidence that her children will be affected by environmental issues in China, including pollution and food safety issues. She stated that if her Australian citizen son grows up in China it will be difficult for him to merge into the Australian community later in life. She is concerned that he will be prevented from having a normal life and education in Australia which may later affect him.
The Tribunal has also considered Australia’s obligations pursuant the Convention on the Rights of the Child (CRC) and acknowledges that in taking actions concerning children, the best interest of the child shall be a primary consideration. Given the relatively young age of the children, the Tribunal considers that it is in the best interest of Roy and Liam to be with their parents and for the family unit to remain intact. As discussed above, the Tribunal is satisfied that the family, who currently reside in China, can continue to live together in China.
The Tribunal accepts that the applicant wants her sons to benefit from Australia’s culture, the air quality, education, social support services and the Australian lifestyle and gives some weight to these factors in the applicant’s favour. The Tribunal accepts that the air quality in China is of concern however there is no probative evidence before the Tribunal to indicate that the children have any health complications or would be unable to live in China for that reason. The Tribunal is also not satisfied that the children will be deprived of an education, basic levels of healthcare or other social services in China. Though the Tribunal does acknowledge that if Liam’s parents decide not to acquire Chinese citizenship for him, he may not be entitled to the same rights afforded to Chinese citizens as submitted by the representative.
The Tribunal accepts that the children are innocent third parties in that they have played no role in the breach, however, they are still very young, have spent limited time in Australia and will be able to adapt to life in China with the assistance of their parents. The Tribunal does not accept that it would be to the detriment of Liam or Roy if the children remained in China. The children continue to have the love, support and nurture of both of their parents whilst they are living in China. Their father is currently employed and can provide for them.
The Tribunal has considered the applicant’s evidence and accepts that her visa cancellation may mean that Liam is unable to live and study in Australia while he is still young, however it does not accept that this will necessary mean that will be difficult for him to merge into the Australian community later in life. The Tribunal considers the applicant’s fears to be highly speculative as there is no way of predicting how Liam will integrate into the Australian community later in life should he wish to live in Australia.
As found above, the Tribunal considers that the best interest of the children, which the Tribunal acknowledges is a primary consideration, is for the family unit to remain intact. The Tribunal has had regard to all of the evidence and submissions and is satisfied that the cancellation will not necessarily result in the children being separated from their parents. The Tribunal has considered the effects of the cancellation on the children but is not satisfied that they would amount to a breach of Australia’s obligations under CRC.
Whether the visa would have been granted if the correct information had been given?
The Tribunal is satisfied that the employer sponsored Subclass 186 visa would not have been granted had the delegate considering that visa application known that the applicant was not actually offered a position with the nominating employer Oak Financial Partners.
Conclusions
The Tribunal has considered all of the evidence before and has carefully weighed up all of the relevant circumstances in this case. The Tribunal gives weight to the fact that one of the applicant’s children is an Australian citizen. The Tribunal also gives some weight to the time the applicant and her children have spent in Australia. It also acknowledges, and gives weight to the applicant’s desire to live and raise her children in Australia where they can enjoy high quality of air, education and health services. Against these factors however is the fact that the applicant was granted a permanent sponsored employer visa partly on the basis of a bogus document, without which she would not have been entitled to the grant of the visa. While the Tribunal has accepted that the applicant did not herself procure the bogus document, the evidence strongly suggests that the applicant was aware that the employment arrangement with Oak Financial Partners was not genuine and had been contrived for the purposes of securing a migration outcome for her and her son. The Tribunal considers the breach in this case to be serious and significant, and one which seriously undermines the integrity of Australia’s immigration program. The Tribunal considers the factors in favour of cancelling the visa outweigh those against cancellation of 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 be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.
R. Skaros
Member

ATTACHMENT – Relevant Extracts from the Migration Act 1958:
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.
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.