Lyu (Migration)

[2022] AATA 3140

Lyu (Migration) [2022] AATA 3140 (31 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hui Lyu

REPRESENTATIVE:  Ms Marta Mamarot

CASE NUMBER:  2201271

HOME AFFAIRS REFERENCE(S):          BCC2018/4767314

MEMBER:Kira Raif

DATE:31 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2022 at 7:08am

CATCHWORDS

MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 – Skilled–Independent – incorrect information in the visa application – bogus documents – member of the family unit claim – employment – plans to start a family – property ownership – decision under review affirmed       

LEGISLATION

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

CASES

MIAC v Khadgi (2010) 190 FCR 248

statement of decision and reasons

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 189 – Skilled – Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in April 1987. He was granted the Skilled visa in March 2017. In December 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant had not complied with s 103 of the Act. It appears that the applicant did not respond to the NOICC and his visa was cancelled in January 2022. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Xu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

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

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 103 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he made an application for the Skilled visa on 25 October 2016. In that application, the applicant included Ms Yichun Wang as his de facto partner. On the application form the applicant gave personal details for Ms Wang and stated that their de facto relationship commenced on 14 March 2015. The applicant gave his residential address in Kingsgrove and completed a declaration that he had read and understood the information provided in the application and that the information in the application was complete and correct in every detail.

9. In support of his claimed relationship with Ms Wang, the applicant provided a number of documents, including:

   a.    three Commonwealth Bank statements in Ms Wang’s name, addressed to the Kingsgrove address, dated form April 2015 to October 2016;

   b.    a Commonwealth Bank statement in his own name (under an alias) addressed to a Strathfield address, for the period from April to October 2015.

10. The applicant and Ms Wang were granted the Skilled visas on 30 March 2017. Following the visa grant, the Department had carried out a forensic examination of the abovementioned bank statements which determined that the residential addresses on the presented documents did not match the residential addresses officially linked and registered to these documents. The delegate concluded that the documents were altered by a person without authority and were bogus documents.

11. The primary decision record shows that the applicant did not respond to the NOICC. In his statutory declaration provided to the Tribunal, dated 19 July 2022, the applicant states, with respect to his application for the Skilled visa, that he had made the application with the help of a migration agent, and he did not prepare the application and did not check it. He had used the same agent for his previous application, and when applying for the Skilled visa he attended their office and gave them the documents. The applicant states that the agent proposed to him that he could add someone onto his visa as a partner and that person would pay the visa lodgement fees and the agency fee and the agent told him ‘it was no big deal’. The applicant states that he knew it was not right but due to ‘financial issues’ he decided to go ahead it, which he regretted. The applicant states that he met Ms Wang only once in order to take photos, and everything was organised by the agent; he has had no contact with Ms Wang since. The applicant states that the visa evidence, including bank statements, was organised by the agent.

12. In oral evidence, the applicant confirms that he agreed to add the de facto in his application but he did not know what documents were submitted with the application as he had only given the genuine documents to the agent. The applicant states that he did not see the bogus bank records until he learnt about the visa cancellation.

13. Having regard to the result of the forensic examination of the bank records, and the applicant’s own evidence, the Tribunal finds that the bank statements have been altered by a person without authority and that they are bogus documents. The Tribunal finds that the applicant gave, presented or provided to an officer bogus documents, or caused such documents to be so given, presented or provided. The Tribunal finds that there was non‑compliance with s 103 in the way described in the notice.

    Should the visa be cancelled?

14. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

15. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994. They are as follows.

    The correct information

16. This is not relevant in the present case.

    The content of the genuine document (if any)

17. Genuine documents would have different addresses and may not show cohabitation of the applicant and Ms Wang. The applicant confirmed that he did not live with Ms Wang and had very limited contact with her.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

18. One of the requirements for the grant of the Skilled visa was PIC 4020. The Tribunal has found that the bank records are bogus documents and, therefore, the applicant provided bogus documents with his application. If that was known to the delegate, it may have affected the assessment of PIC 4020. The Tribunal finds that the decision to grant the visa was based, in part, on bogus documents.

    The circumstances in which the non-compliance occurred

19. These are addressed above. Essentially, the applicant submits that at the time he made the visa application, he was struggling financially and his temporary visa was about to expire, so he approached the agent who assisted him previously and the agent suggested to include another person in his application, to which the applicant agreed. The applicant submits that he met Ms Wang once in order to take photographs but had no other dealings with her and all the documents were prepared by the agent.

20. The applicant’s evidence indicates that the applicant was fully aware that his application contained false information about his relationship with Ms Wang. He gave the go-ahead to the agent to proceed with the falsehoods in return for Ms Wang paying the various fees because, he claims, he was experiencing financial hardship. The Tribunal finds that the applicant was aware of the fraud and had authorised it. He also took positive steps to engage in the fraud by taking photographs with Ms Wang in order to create the impression of their relationship.

21. The applicant told the Tribunal that he had qualified for the visa and it was the agent who suggested they include the de facto and he did not realise he had to submit the false material to prove the de facto relationship. The applicant told the Tribunal that the agent told him it would not affect his visa, and he did not appreciate the consequences. The Tribunal does not accept the applicant’s evidence as the applicant was well aware Ms Wang was not his de facto partner but was included in his application as the de facto partner. The Tribunal does not accept that the applicant lacked understanding of what was being done, even if he did not appreciate that his visa could be cancelled as a result of the fraud. In the Tribunal’s view, the applicant was well aware of the fraud and was agreeable to it because of the benefits he believed he could get (financial or speedier lodgement and processing of the application).

22. The applicant submits in his declaration and oral evidence to the Tribunal that it was the agent who had prepared the bogus documents and that he had never had access to the email account used for the visa. He states that he had only signed the form and the agent did everything else. The Tribunal is prepared to accept that this may have been the case, but the applicant’s evidence is that the agent did inform him that Ms Wang would be included in the application and he knew that he did not have a relationship with her. As noted above, the Tribunal is of the view that the applicant was aware of the fraud and had authorised it. In these circumstances, it is irrelevant, in the Tribunal’s view, that the applicant did not personally alter the documents and may not have seen them. His culpability for the fraudulent conduct is not diminished if the false evidence of the relationship was arranged by the agent with the applicant’s implied consent.

    The present circumstances of the visa holder

23. In his submissions to the Tribunal, the applicant states that he has been living in Australia since 2011 and had completed two Master’s courses at UNSW. The applicant states that he considers Australia to be his home and he has little in China, other than his parents. The applicant refers to his past and present employment, and he told the Tribunal he manages a small department of his own. He claims he had never relied on government payments. The Tribunal accepts that evidence.

24. The applicant states that he has purchased a house and has a mortgage with his partner. He provided to the Tribunal evidence of the mortgage. He refers to his marriage in December 2021 and states that he had sponsored his partner for a visa, which was withdrawn after his visa was cancelled. The applicant provided to the Tribunal evidence that was submitted in support of the Partner visa application. The Tribunal accepts that evidence.

25. The applicant refers to having a dog and states that he is concerned to return to China as dogs are not treated well in China. He provided to the Tribunal a number of media reports, but there is little to suggest the practices described there are continuing or are widespread.

26. The applicant states that he is a law‑abiding citizen and has no criminal record. The applicant provided to the Tribunal his penal certificates. The Tribunal accepts that evidence.

27. The applicant refers to the impact that the visa cancellation has had on him and his wife, stating that they are worried about their future. The applicant states that due to his age it would be hard for him to get a job in China and work conditions would be difficult. He states that because they do not have children, it would be hard for him and his partner to find employment. The applicant presented no evidence of having sought employment in China, nor of having been denied jobs, and he told the Tribunal that he has not applied for any jobs but has heard stories from friends. The Tribunal is not prepared to accept the applicant’s assertion that he or his partner would be unable to find employment in China, even if such jobs would have different, or more difficult, conditions than the jobs in Australia. The Tribunal accepts that it may take time for the applicant and his partner to find employment in China, particularly given the length of their absence from that country, and that may cause them hardship, but the Tribunal does not accept the applicant and his partner would be unable to find gainful employment.

28. The applicant refers to strict lockdowns in China due to Covid, stating that he and his partner and their dog ‘can’t live like that’. The Tribunal does not accept such a broad and unspecific statement.

29. The applicant states that he and his wife plan to have a baby and hope to have a child in Australia. The Tribunal accepts that. The applicant provided with his submission to the Tribunal a number of documents, including evidence of his health insurance, property purchase and mortgage, photographic evidence of social activities, financial and taxation records, character references and other material. The Tribunal accepts the evidence in these documents.

30. The applicant told the Tribunal that he has been living in Australia for 12 years and considers Australia his home. He and his partner want to stay in Australia and he has nothing left in China, other than his parents. The Tribunal accepts that he is well settled in Australia. The applicant states that he can contribute to Australia, and the Tribunal is prepared to accept that evidence.

31. Ms Xu also told the Tribunal about their settlement in Australia. She states that there is discrimination in China for people over 30 and young couples without children, and this does not exist in Australia. (These claims are addressed elsewhere.) Ms Xu told the Tribunal that they want to stay in Australia and contribute to Australia in the future and have children here and take care of their dog. Ms Xu reiterated that evidence in her post-hearing submission to the Tribunal. The Tribunal accepts that evidence.

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

32. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

33. There are no other known instances of non-compliance. The applicant provided to the Tribunal his police clearance certificates.

    The time that has elapsed since the non-compliance

34. The application was made in October 2016. Nearly six years has passed since the non‑compliance.

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

35. There are no known breaches of the law.

    Any contribution made by the holder to the community

36. The applicant told the Tribunal at hearing that he wanted to volunteer in the dog rescue sector and he had been assigned to the bush care sector. He also intends to start doing blood donations (having done one). The applicant refers to community activities through his care for the dog and states that he helps others. In his post-hearing written submission the applicant outlined his voluntary activities. The Tribunal accepts the applicant’s evidence and accepts that the applicant has made a contribution through his employment and various voluntary and community activities.

37. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

38. Ms Wang’s visa would be subject to consequential cancellation. The applicant told the Tribunal that he has not had any contact with Ms Wang and is not aware of her circumstances.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

39. The applicant told the Tribunal that he is close to his friend’s children and they spend a lot of time with each other. In his post-hearing written submission to the Tribunal the applicant provided photographic and other evidence of his interactions with the children and he also provided a statement from his friend. The Tribunal is prepared to accept that the applicant has a close relationship with the children, however, the Tribunal is also mindful that the children are in the care of their parents and there is nothing to suggest that care is inadequate. There is nothing to indicate the applicant himself has any parental responsibilities in relation to the children (other than some playtime). The Tribunal is mindful that the applicant may be able to maintain contact with the children even if he does not live in Australia, while the Tribunal acknowledges it may not be of the same quality. On the evidence before it, the Tribunal does not consider that the cancellation of the applicant’s visa would affect the best interests of these children.

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

40. The applicant told the Tribunal that there have been strict lockdowns in China for the past three years and there are requirements for frequent PCR tests and it is depressing for people there. The applicant also states that it is difficult to find a job due to lockdowns. The Tribunal is mindful that these rules, if they are to continue, apply equally to all living in the particular region. In the Tribunal’s view, these rules, if they continue to apply, do not amount to persecution. The applicant told the Tribunal that he does not believe he would be persecuted but it would be hard for him to live in China.

41. The Tribunal is also mindful that the applicant is eligible to seek a Protection visa in Australia if he believes he would be subjected to persecution. In these circumstances, the Tribunal does not consider that Australia’s non-refoulment obligations arise in this case.

1. The applicant’s partner is in Australia but holds a temporary visa only. He has no other family in Australia and the family unity principles would not be breached as a result of the cancellation. The Tribunal finds that Australia’s international obligations would not be breached if the visa is cancelled.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision, and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

2. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. There is nothing to suggest the applicant would be detained indefinitely. The applicant will face restrictions on onshore visa applications, due to the operation of s 48, and may be subject to an exclusion period in relation to some future visa applications.

3. The cancellation of the visa would result in the applicant losing some of the entitlements he may have acquired as a permanent resident of Australia, including the ability to sponsor others for Australian visas. The applicant would also lose his eligibility to seek Australian citizenship if he is not a holder of a permanent visa. He would also be unable to sponsor his partner if he is not the holder of a permanent visa.

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

4. The applicant provided to the Tribunal a statement from his partner, including a number of social photographs. The Tribunal accepts the evidence in that statement. The applicant provided a number of character references and the Tribunal accepts that those who provided these references believe the applicant to be a good person. The applicant also provided a reference from his employer and the Tribunal accepts that he is well regarded at work.

5. The applicant refers to the length of his and his partner’s stay in Australia and the degree of their settlement. He refers to the friendships he has formed. As noted above, the Tribunal accepts that the applicant and his partner have settled in Australia and have formed significant financial, social, employment and other ties in Australia. The Tribunal accepts that significant hardship would be caused to the applicant and his partner if the cancellation of the visa was to result in the applicant and his partner having to depart Australia.

6. The applicant told the Tribunal that when he sponsored his partner for the Partner visa, he also referred to having a de facto relationship with Ms Wang in order to be consistent with the previous application as they ‘did not have the courage’ to tell the truth. It is of significant concern to the Tribunal that the applicant continued to perpetrate the falsehood in the subsequent Partner visa sponsorship.

7. The applicant states that he regrets what he has done. The Tribunal does not accept that evidence, given that the applicant had consistently provided incorrect answers regarding his previous relationship when sponsoring his present partner for a visa. The applicant states that nobody would benefit from him and his partner having to depart Australia while Australia would benefit from him and his partner living in Australia as both he and his partner can contribute to Australia through employment and social interactions. The Tribunal accepts that the applicant (and his partner) can contribute to Australia and that is a relevant consideration, but in the Tribunal’s view, it is not sufficient to overcome other concerns. The Tribunal also considers there is benefit in maintaining the integrity of Australian immigration laws.

8. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has not complied with s 103 of the Act and that there are grounds for cancelling his visa.

9. The Tribunal accepts that the cancellation of the visa would cause significant hardship to the applicant and his partner. The Tribunal accepts that they are both well settled in Australia and have been living in this country for many years. The Tribunal accepts they have purchased a property, are employed, and have significant ties in Australia. The Tribunal accepts that the applicant’s friends would prefer for him to remain in Australia and that his departure from Australia may affect the applicant’s relationship with his friend’s children. the Tribunal accepts that the applicant and Ms Xu also contribute to the community through various activities, and the Tribunal accepts the applicant’s evidence that he is able to continue to contribute if he is to live in Australia.

10. The Tribunal accepts that it may be difficult, at least initially, for the applicant and his partner to find employment in China, given the length of their absence from that country. The Tribunal accepts that the applicant has limited links to China and that both he and his partner prefer to remain in Australia and have some community support in doing so. The Tribunal also accepts the applicant’s and Ms Xu’s evidence about their concerns about the welfare of their dog. Generally, the Tribunal accepts that considerable hardship would be caused to the applicant and his partner if the visa is cancelled. These factors weigh against the cancellation.

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

12. In the circumstances of this case, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred. The applicant was aware that his application contained false claims about his relationship with Ms Wang and false evidence of that relationship in the form of social photographs. He allowed the agent to go ahead with that fraud, even if he did not himself alter the bank records and may not have seen them. The Tribunal has formed the view that the applicant was intentionally involved in the perpetration of fraud and agreeable to it in return for financial gain. It is also of some significance, in the Tribunal’s view, that the applicant continued with the same falsehood when sponsoring his present partner for the Partner visa, despite his claimed regret. These factors weigh strongly in favour of the cancellation.

13. The Tribunal also places some weight on the fact that the decision to grant the visa was based, in part, on bogus documents. Although the applicant claims he would have met the visa requirements, the inclusion of bogus documents with the visa application would have been relevant to the assessment of PIC 4020. This also weighs in favour of the cancellation.

14. Having regard to the entirety of the applicant’s circumstances, the Tribunal has decided that the factors that weigh in favour of the cancellation outweigh those against the cancellation.

15. 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

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

    Kira Raif
    Senior Member