Qian (Migration)

[2022] AATA 5178

Qian (Migration) [2022] AATA 5178 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Houhua Qian

REPRESENTATIVE:  Ms Xuefang Chen (MARN: 1464604)

CASE NUMBER:  2111954

HOME AFFAIRS REFERENCE(S):          BCC2021/1509105

MEMBER:Kira Raif

DATE:11 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 11 July 2022 at 7:08pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – ground for cancellation – incorrect information in visa application – de facto relationship – inconsistent with information in other visa applications – bogus document – phone bills – bank statements – consideration of discretion – grant of visa based on incorrect information – decision under review affirmed

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

Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 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 December 1990. He was granted a Skilled visa in March 2018 on the basis of being a de facto partner of the primary visa applicant, Ms Wang. In August 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss. 101 and 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in September 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 June 2022 to give evidence and present arguments. 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

1. 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.

2. 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.

3. 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?

4. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss. 101 and 103 of the Act.

5. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in October 2017 Ms Wang made an application for a Skilled visa and the applicant was included as her de facto spouse and a member of the family unit. The application included Mr Qian’s personal details and it was stated that the de facto relationship commenced in May 2016.

1. The application was accompanied by a number of documents as evidence of the applicant’s relationship with Ms Wang. These included

   -Vodafone bills in the name of Ms Wang, issued between October 2016 and October 2017, addressed to an address at Ryde,

   -Vodafone bills in the applicant’s name, addressed to the same address at Ryde, issued between August 2016 and August 2017,

   -Commonwealth bank statements in the names of the applicant and Ms Wang, also addressed to the Ryde address for the period from April 2016 to October 2016,

   -AGL electricity account in the applicant’s name, addressed to the Ryde address, for the periods from November 2016 to November 2017.

2. It is stated in the decision record that both the applicant and Ms Wang also provided statements outlining the nature of their relationship. The applicant signed a statement on 9 November 2017 in which he claimed he first met Ms Wang in February 2016 on a dating app, and again in 2016 at a friend’s party. He claimed that their relationship commenced on 6 April 2016 and on 12 May 2016 he moved to Ms Wang’s home. It is noted that the applicant also provided a rental agreement dated 8 May 2016 for the Ryde property showing him and Ms Wang as co-tenants.

3. The applicant and Ms Wang were granted the Skilled visas on 20 March 2018. Since the visa grant, the Department completed a forensic examination of the above documents and determined that the residential addresses provided on these documents did not match the addresses officially registered to those documents.

4. The primary decision record indicates that in November 2016 the applicant made an application for a Student visa and stated in that application that he was never married. The application did not include a secondary applicant. The applicant gave his address at Rhodes in the Student visa application, contrary to the information in the Skilled visa application which refers to his relationship with Ms Wang from May 2016 and residence at Ryde.

5. It is also noted that in February 2017 the applicant applied for the Subclass 485 visa and in that application he also stated that he was never married and he did not include any dependents. The applicant stated that he was living at Rhodes. The applicant gave the same address at Rhodes in his Citizenship application made in April 2019. The applicant stated that he did not live at any other address in the previous five years.

6. In April 2019 the applicant sponsored his partner Ms Xue for a Partner visa. In that application Ms Xue stated that she and the applicant met in February 2018 and commenced a shared life together from June 2018. The applicant stated on the sponsorship form that he had never been in a relationship with another person previously.

7. In his response to the NOICC the applicant outlined his personal and immigration background. The applicant states that he started the de facto relationship with Ms Wang in May 2016 and had the relationship when the application was made for the Skilled visa. Since that time the relationship broke down and the applicant recommenced his relationship with his present partner. The applicant states that the incorrect information in the Skilled visa application and other (Student and Subclass 485) visa applications was submitted by his migration agent who did not consult with the applicant and made ‘discretionary’ disclosure of information without the applicant’s knowledge of consent. The applicant states that he provided relevant information, including his marital status and his addresses to his agent but he was not aware of what information was submitted with the applications and he only became aware of this when he received the NOICC. The applicant states that his agent was not a registered agent and at the time he did not know about agent registration. The applicant provided with his submission to the delegate evidence of payment and of his interactions with the agent and the Tribunal accepts that the applicant had utilised the services of an agent when preparing his Skilled visa application.

8. The applicant also provided a statement to the Tribunal outlining his relationship with Ms Xue. The applicant also provided a declaration to the Tribunal in his submission of 1 June 2022. In that declaration the applicant also claims that he and Ms Wang moved in together to an apartment in Ryde in May 2016 and at the time he continued to sub-let his Ryde apartment to a friend. The applicant states that when he stated ‘never married’ in his Student visa, it was his misunderstanding because in his opinion, living together is not the same as marriage and he did not understand the meaning of de facto. He thought the same when applying for the Skilled visa in February 2017. The applicant states that during that period he had a conflict with Ms Wang and he sometimes lived at the apartment in Ryde with a friend for short periods during the arguments. The applicant states that he and Ms Wang engaged an agent to apply for the Skilled visa and were told that they could make the application and they trusted the agent. The applicant states that he later broke up with Ms Wang and moved to his Rhodes apartment and he was comforted by his friends, including his present partner. He met her before and they quickly formed a relationship. He engaged the same agents to handle his wife’s Partner visa application.

9. In oral evidence, the applicant told the Tribunal that he met Ms Wang in early 2015 at a party and they got to know each other in September 2015. They started a relationship in December 2015. The applicant states that he did not know what documents his migration agent submitted on his behalf but he gave only genuine documents to the agent.

10. The Tribunal finds the applicant’s evidence about his relationship with Ms Wang and his evidence about the inconsistencies in the various applications unconvincing.

11. Firstly, the Tribunal considers it problematic that the applicant has not provided convincing or probative evidence of his relationship with Ms Wang to this Tribunal. The Tribunal wrote to the applicant on 15 February 2022 inviting him to provide evidence of his relationship with Ms Wang, including evidence relating to social and financial aspects, nature of the household and their commitment. In response, the applicant provided a statutory declaration describing the relationship. The Tribunal discussed with the applicant the paucity of that documentation and its concerns during the hearing and the applicant was granted time to provide post-hearing submissions. However, there remains very limited evidence of the applicant’s claimed relationship with Ms Wang. There are no independent and contemporaneous documents before this Tribunal concerning the applicant’s relationship with Ms Wang (such as, for example, social photographs, statements from family members, friends or other relatives, evidence of sharing financial resources, a statement from a real estate confirming cohabitation, etc).

12. The applicant offered several explanations for not submitting evidence of his relationship. He told the Tribunal that he deleted all the evidence after the relationship breakdown but even if that was the case, there is no obvious reason why evidence from third parties, for example, could not be available to the applicant now. It might also be possible to obtain copies of the documents that had been previously available to him (such as, for example, it may have been possible to have phone bills or other electronic records showing communication between the applicant and Ms Wang reissued and it may have also been possible to obtain historical financial records showing the sharing of finances or even old social media representations). The applicant then told the Tribunal that he did not know these documents were important (which is an odd statement, given the Tribunal’s express request to provide these) and also that he did not know how to submit documents (a claim the Tribunal does not accept as the applicant is represented by a migration agent). The applicant then said that he tried to get the electronic records but could not, which contradicts his earlier claim that he did not know how to present the documents or that he did not think it was important. The fact that the applicant has not presented any independent and preferably contemporaneous evidence of his relationship with Ms Wang, and his inconsistent explanations for such failure, suggests to the Tribunal that he never had a de facto relationship with her.

13. The applicant also told the Tribunal that he continues to have a ‘reasonably friendly’ relationship with Ms Wang and they comminate with each other, yet Ms Wang was not available to give evidence to the Tribunal about the relationship. When asked why she was not available to give oral evidence, the applicant noted that she had provided a written statement however the Tribunal does not have an opportunity to test the evidence in a written statement. The applicant offered multiple reasons why Ms Wang was not available. He said that Ms Wang is not in Australia and cannot return to Australia but the Tribunal is mindful that she could have easily given evidence electronically, which would have been obvious if not to the applicant then to his agent. The applicant then said that Ms Wang decided not to return to Australia and was not cooperative, which seems to contradict his earlier statement that they have a reasonably friendly relationship. The Tribunal has formed the view that the applicant was not truthful in his evidence about his present interactions with Ms Wang and the reasons why she was not available to give evidence about the relationship. The Tribunal has significant concerns about the applicant’s overall credibility.

14. Secondly, the Tribunal considers it significant that the addresses the applicant gave in his Skilled visa application were different to the addresses he provided in other applications, which were largely consistent among themselves. The addresses in the other applications show that the applicant did not live with the primary visa applicant as claimed in the Skilled visa application. In his response the applicant claims he relied on agents to prepare the application but he also states that he had applied for previous visas himself and only used the agent for the Skilled visa. If the applicant completed the application form for the Subclass 485 visa himself, there is no reason why he would provide incorrect addresses and there is no reason why the addresses specified in the Skilled visa should be taken as correct while the addresses specified on other visa applications, including the citizenship application, should be taken as being inaccurate or incomplete. Even if the applicant did use agents in other applications, that does not explain, in the Tribunal’s view, the inconsistent addresses as this information is likely to have been supplied to the agents by the applicant himself.

15. The applicant states he was “too lazy” to list all his addresses in the citizenship application and did not realise it was important. The Tribunal does not accept that the applicant did not appreciate the significance of a citizenship application and of providing complete and truthful information in that application, particularly as there was a specific question about his past addresses. The Tribunal is mindful that the information in question concerned the applicant’s residential addresses, it is neither complex, nor something that required specialist knowledge or skills. The Tribunal does not consider that the fact that the applicant did not utilise the help of migration agents in these applications means that he was incapable of correctly specifying his residential addresses. As noted above, if he did use the agents in other applications, the Tribunal is of the view that the applicant was capable of supplying the correct information to the agents.  

16. The Tribunal does not accept that the applicant had consistently provided incorrect or incomplete information in his various applications and that is only the information in his Skilled visa application that was complete and correct. In the Tribunal’s view, a much more likely explanation is that the applicant did not live at the address specified in the Skilled visa application (that is, he never lived with Ms Wang) and that it is the information in the other applications that is correct.

17. Thirdly, the Tribunal considers it relevant that the applicant’s relationship with Ms Wang broke down almost immediately after they were granted the permanent visa. The applicant claims that there was a lot of fighting between them due to being from different origins but the Tribunal is mindful that despite these claimed arguments, the applicant claims that he and Ms Wang were able to maintain their relationship until after the visa grant and it was only after the visa grant that the claimed arguments ended the relationship. The applicant states that it was Ms Wang’s idea to apply for the visa together and it was merely a coincidence that the relationship broke down once the visa was granted. The fact that the applicant’s relationship with Ms Wang ended very soon after the visas were granted also suggests that the applicant did not have a genuine relationship with Ms Wang but simply claimed to have such a relationship in order to qualify for the visa. There was no longer a need for him to claim the existence of the relationship once the visa was granted.

18. Fourthly, and significantly, the applicant stated when sponsoring his partner Ms Xue that he was never in a relationship previously. The applicant explains that he did not understand the concept of ‘de facto’ which does not exist in China. The Tribunal does not accept that explanation. The applicant had previously made several visa applications (even if with the assistance of migration agents) and had himself obtained the Skilled visa as a de facto partner of Ms Wang. Even though he claims the agent did not explain much to him, the applicant’s evidence to the Tribunal is that he was told by the agent that he met the de facto requirements for the grant of the Skilled visa and he would have certainly been aware that he was making that  application as a partner of Ms Wang and not as a primary applicant. He also knew that he was not married to Ms Wang. In the Tribunal’s view, that means that the applicant would be aware of the concept of de facto (even if did not know details) and would have recognised his relationship with Ms Wang (if it existed) as a de facto one when he was applying for the Skilled visa. There is no reason why he should fail to recognise the same when sponsoring Ms Xue.

19. The Tribunal is also mindful that at the time of sponsoring Ms Xue, the applicant had been living in Australia for about ten years, he claims that he had settled in Australia and had completed tertiary study in Australia. In these circumstances, the Tribunal does not accept that the applicant was completely ignorant of the relationship options and that he had no understanding of the concept of ‘de facto’. The fact that the applicant stated in the sponsorship that he was never married or in a de facto relationship previously is strong evidence that his claimed relationship with Ms Wang did not exist.

20. The applicant submits that he was not given a proper document checklist when applying for the Skilled visa and he provided all the documents asked for by the agent but did not receive detailed advice from the agent. The agent told him he met the de facto requirements and he was not aware of the need to provide other documents to prove the relationship and the documents were organised by the agent. The Tribunal is mindful that there is no prescribed list of documents needed to establish a de facto relationship for the purpose of a Skilled visa application and hence it is possible that the applicant was not given a document checklist, nor told what documents to provide. However, that does not explain the discrepancies in addresses given in various application, nor other concerns noted here.

1. The applicant states that the agent created an Immi account under his name without his knowledge or permission. Again, the Tribunal is prepared to accept that this may have happened. The Tribunal is of the view, however, that the applicant would have had the opportunity and the means (if he had any desire to do so) to check the content of the application before it was submitted. The applicant’s evidence is that he had paid a fee to the agent. The agent was depending on the payment of the fee for his services and it would have been possible, in the Tribunal’s view, to withhold the full payment until the applicant’s conditions (such as reviewing the completed application) were met. The applicant’s evidence to the Tribunal is that he had not checked the content of the application, as he trusted the agent.

2. Fifthly, the applicant provided inconsistent accounts of his relationship with Ms Wang. In oral evidence the applicant told the Tribunal that he first met Ms Wang around February 2015 at a New Year’s party and saw her again at a party in September 2015. They became boyfriend and girlfriend in December 2015 and moved in together in May 2016 at the Ryde address. The applicant states that he used a dating app around 2013 or 2014 but not since that time and he confirmed that he had not met Ms Wang through the dating app. The Tribunal notes that this information contradicts entirely the relationship description provided by the applicant in the statement that accompanied the Skilled visa application (which is referred to in the primary decision record).

3. The applicant told the Tribunal that he gave the basic outline to the agent and did not know what the agent had submitted but in the Tribunal’s view, if the applicant did have a de facto relationship with Ms Wang as he claims, it would make no sense for the agent to create a completely different timeline and the circumstances of their meeting. It is not apparent to the Tribunal why there would be a need to falsify how the parties met and when they met and formed the relationship (provided the 12 months requirement was met, which the applicant claims was the case). The Tribunal does not accept that while the applicant provided truthful information to the agent, the agent chose to provide false information in the relationship statement that accompanied the application.

4. Similarly, there seems to be no reason to fabricate the evidence of cohabitation (and the applicant does not dispute that the Vodaphone and bank documents referred to above had been altered) if he did have a genuine de facto relationship with the primary visa applicant and they lived together from May 2015 as the applicant claims. The applicant suggested that perhaps the agent thought it would help get the visas quickly but the Tribunal does not accept the agent would take the significant risk of providing deliberately false information and bogus documents where a genuine relationship that met visa requirements was already in existence. The Tribunal does not accept that the description of the relationship provided with the Skilled visa was fabricated by the agent without the applicant’s knowledge or consent. Rather, the Tribunal is of the view that the discrepancies in the applicant’s oral evidence about the timing of his relationship with Ms Wang and the written statement submitted with the written application offer strong evidence that the applicant’s evidence about his relationship with Ms Wang is untruthful.

5. Some of these issues may not be significant. However, when considered together, the Tribunal finds that they provide strong evidence that the applicant never lived with Ms Wang and did not have a genuine de facto relationship with her for the period claimed.

6. In reaching this conclusion, the Tribunal acknowledges that in his response to the NOICC the applicant provided evidence of some contact with Ms Wang around 2017 however evidence of the electronic contact does not establish, in the Tribunal’s view, the existence of a de facto relationship (with all the indicia that it entails) over a period of time when the applicant claims that relationship existed. As noted above, the Tribunal is of the view that if a de facto relationship existed between the applicant and Ms Wang for the period claimed, there would be a lot more documentary evidence of that relationship available to the applicant.

7. The Tribunal also acknowledges the statement from Ms Wang. Unfortunately, Ms Wang was not available to give evidence to the Tribunal and the Tribunal was thus unable to test her evidence concerning the relationship. The Tribunal is mindful that if it is determined that the applicant did not have a de facto relationship with Ms Wang as claimed, Ms Wang’s visa may also be subject to cancellation, so that there is significant benefit in Ms Wang maintaining that the relationship existed. In such circumstances, the Tribunal is unwilling to accept Ms Wang’s evidence, without having any opportunity of testing it, as truthful or probative.

8. The Tribunal has formed the view that the applicant is not a witness of truth and that he has not been truthful in his evidence concerning his relationship with Ms Wang. For the reasons set out above, the Tribunal has formed the view that the applicant did not have a de facto relationship for the period claimed in the Skilled visa application.

9. The Tribunal finds, having regard to the investigation set out in the primary decision record, that the bank records and Vodafone bills had addresses altered on them. The Tribunal finds that these documents had been altered by a person without authority and that they are bogus documents within the meaning of s. 5(b) of the Act. The Tribunal finds that the applicant gave, or caused to be given, to the Minister or the office, bogus documents. The Tribunal acknowledges the applicant’s evidence that these were prepared by an agent without his knowledge or consent but irrespective of the veracity of such claims, the Tribunal is of the view that the legislation places the onus on the applicant for the submission of information on the form and any accompanying documentation.

10. For these reasons, the Tribunal finds that there was non-compliance with s. 103 of the act by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

11. 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).

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

    The correct information

13. The Tribunal has formed the view that the applicant did not have a de facto relationship with Ms Wang for the period claimed. The applicant denies that, stating that they did have a de facto relationship, even though the relationship was not registered and he claims they did share finances but did not have a joint account.

    The content of the genuine document (if any)

14. Genuine documents would not show the applicant and Ms Wang residing together at the same address and the Departmental investigation indicates that the addresses on the bank statements and phone bills had been altered.

    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

15. Information in the primary decision record indicates that the applicant sought the Skilled visa on the basis of meeting the secondary criteria. There is no suggestion that he met the primary criteria for visa grant. The applicant claimed to be a de facto partner of the primary visa applicant Ms Wang and he does not appear to have met any of the alternative definitions of the term ‘member of the family unit. That is, the applicant’s relationship with Ms Wang was central to his eligibility for the visa.

16. The Tribunal has formed the view that the applicant has not been truthful in his claims concerning his relationship with Ms Wang. If the applicant and Ms Wang did not have a de facto relationship – as the Tribunal has determined - the decision to grant the visa, which was based on the existence of such a relationship, was based on incorrect information.

17. However, even if the Tribunal was to accept the entirety of the applicant’s claims about his relationship with Ms Wang (which the Tribunal does not), the Tribunal would still find that the decision to grant the visa was based, in part, on bogus documents. It is not in dispute that the applicant provided bogus documents to evidence his cohabitation with Ms Wang. These claims and evidence were relevant to assessing whether the applicant was the de facto partner of Ms Wang and, therefore, to the applicant’s eligibility for the visa.

18. The applicant would have also been required to meet PIC 4020 and he provided bogus documents with his Skilled visa application. The provision of these documents would have been relevant to the assessment of whether the applicant met PIC 4020.

19. 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

20. These are outlined above. The applicant claims, essentially, that he did have a genuine de facto relationship with Ms Wang and either he or the agents provided incorrect information on his various applications. The applicant provided in response to the NOICC evidence of his interactions with, and payments made to, migration agents and the Tribunal accepts the applicant sought assistance of migration agents. However, for the reasons outlined above, the Tribunal does not accept that the applicant had no involvement in, and no knowledge of the preparation of his various applications, and no knowledge of their content.

21. The Tribunal has formed the view that the applicant did not have a de facto relationship with Ms Wang, as claimed, and that he provided truthful information in other visa applications rather than his permanent Skilled visa application. That is, the Tribunal is of the view that the applicant’s relationship with Ms Wang, and evidence of that relationship, were fabricated. The applicant was aware that he was making the application as the de facto partner of Ms Wang as his evidence to the delegate and the Tribunal is that the agent explained that  to him. Thus, the Tribunal is of the view that the applicant was aware that the information in his application was incorrect, even if he was not personally involved in the preparation of bogus documents.

22. The applicant claims that he did not check the content of the form because he trusted the agent, and had made a mistake. However, as noted above, the Tribunal is of the view that the applicant was aware of the basis of his application and, since that  relationship did not exist, the applicant was aware of the fraud and had authorised it.

    The present circumstances of the visa holder

23. In his evidence to the delegate the applicant refers to his relationship with Ms Xue, whom he has sponsored for a Partner visa. The applicant states that their relationship is genuine, close and loving and they rely on each other. The applicant states that if his visa is cancelled, he cannot sponsor his partner for the visa and the decision would affect her as well. In his evidence to the Tribunal the applicant stated that the relationship broke up and they are waiting for the formal divorce. He believes that Ms Xue is holding a Student visa.

24. In his submission to the delegate and the Tribunal the applicant refers to his employment as a warehouse manager. The applicant states that he is valued by his employer and is well settled in the community. The Tribunal accepts that evidence, although it is of some concern to the Tribunal that, on his own evidence, the applicant chose not to tell his employer that his visa was cancelled and that he holds a Bridging visa, rather than a permanent visa. The Tribunal accepts that if the cancellation of the applicant’s visa will result in his departure from Australia, it is likely to result in his loss of employment. The Tribunal is prepared to accept that it may also cause some hardship to the employer, but in the Tribunal’s view, any employer would make provisions for staff turnover and the applicant has not satisfied the Tribunal that another person cannot perform his role.

25. The applicant told the Tribunal that he has a property and a car in his name (and Ms Xue had contributed to the purchase). The applicant told the Tribunal that if he has to leave Australia, he would have to sell, which would be a ‘serious blow’ and cause a financial loss due to the urgent sale. The Tribunal accepts that the applicant owns a car and a property but does not accept his claim that he would suffer a financial loss due to an urgent sale. The applicant presented no evidence of the property’s initial value or current value and there is no evidence to support his claim that any sale would be at a loss.

26. The Tribunal acknowledges that the applicant has been living in Australia since 2008 for a period exceeding 14 years. He has completed his study here and has engaged in employment and previously made an application for the Australian citizenship. The applicant states that he has been law-abiding, he loves Australia and has settled here and he has a good relationship with his homestay family. In his submission to the Tribunal of 4 July 2022 the applicant provided to the Tribunal a statement from his homestay ‘family’ and some social photographs. The Tribunal accepts the information in these documents and accepts the applicant has formed social, employment, financial and other ties to this country. The Tribunal accepts that if the applicant was to leave Australia, this may cause considerable hardship to him. The Tribunal also accepts that the applicant’s homestay ‘parents’ support his stay in Australia.

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

27. 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

28. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

29. The application was made in October 2017. Close to five years passed since the non-compliance. The Tribunal does not consider this to be a significant period.

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

30. There are no known breaches of the law.

    Any contribution made by the holder to the community.

31. The applicant told the Tribunal that he had made donations to homeless people and generally helps people. The Tribunal is prepared to accept that evidence.

32. 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.

33. The Tribunal does not consider that Ms Wang’s visa would be subject to consequential cancellation (as she was the primary applicant) and there is no evidence that Ms Xue has been granted the Partner visa (the applicant told the Tribunal that he believes she holds a Student visa). There are thus no persons whose visas would be subject to consequential cancellation.

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

34. The applicant states that there are no children who would be affected by the cancellation.

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

35. The applicant states that it would be difficult for him to re-settle in China but the Tribunal does not accept that to be the case, as the applicant has been able to settle well in Australia, being at first unfamiliar with the language, country and culture and while the Tribunal accepts that it may take time for the applicant to settle again in China, the Tribunal does not accept the applicant would not be able to resettle in China, despite any differences in the culture to which the applicant refers. The Tribunal does not accept the applicant’s evidence and in any case does not consider these claims to give rise to Australia’s non-refoulement obligations.

36. The applicant has no family in Australia and the Tribunal does not consider the family unity obligations would be breached.

    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.

37. 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 operation of s. 48, and may be subject to an exclusion period in relation to some future visa applications.

38. 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 the Australian visas. The applicant would also lose his eligibility to seek Australian citizenship if he is not a holder of a permanent visa.

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

39. Many of the issues raised by the applicant are addressed above under different headings. The applicant refers to the length of time he has lived in Australia and the various ties he has formed in this country. The Tribunal accepts that evidence.

40. The applicant stated in his earlier evidence that if his visa is cancelled, he cannot sponsor his partner but his evidence to the Tribunal is that the relationship has now ended. The Tribunal also accepts that if the applicant is to depart Australia as a result of the cancellation, it would lead to the loss of his Australian employment.

41. The applicant states that he is used to life in Australia and may find it difficult to adapt to life in other places. He claims it would be difficult for him to resettle in China. The Tribunal does not accept that evidence. The applicant has spent a substantial part of his life in China, he is familiar with the Chinese culture and language and has family ties in China. The Tribunal does not accept that the applicant would have any difficulty re-integrating into the Chinese society and adapting to life in China, as he was able to adapt to new life in Australia when he first travelled to this country.

42. The applicant refers to having a close relationship with his ‘homestay’ family,  stating that they consider him as their own son. He claims he does not want to break the bad news to them. as noted above, the applicant provided some evidence from his homestay ‘parents’ in his submission of 4 July 2022 and the Tribunal accepts the information in these documents. In particular, the Tribunal accepts that the applicant has a good relationship with his homestay family. The Tribunal is of the view, however, that he will be able to continue to communicate with them electronically even if he was to live elsewhere and while the quality of that relationship may be different if the applicant was to return to China, the Tribunal is of the view that the relationship, in some form, can be maintained.

1. The Tribunal also acknowledges the character references and accepts that those who provided character references for the applicant believe him to be a good person.

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

3. The cancellation of the visa would not breach Australia’s international obligations.

4. The Tribunal acknowledges that  there are circumstances that weigh against the cancellation. In particular, the Tribunal places significant weight on the fact that the applicant has been living in Australia for a lengthy period of about 14 years, has formed extensive social, employment and financial ties to this country and may experience considerable hardship if his visa is cancelled, including financial hardship. The Tribunal acknowledges the applicant’s contribution through employment and donations and other activities, that there are no other known instances of non-compliance or breaches of the law. All these factors weigh against the cancellation.

5. However, the Tribunal decided to place greater weight on other considerations. Most significantly, the Tribunal has formed the view that the decision to grant the visa was based, in part, on bogus documents and incorrect information. For the reasons outlined in this decision, the Tribunal has formed the view that the applicant did not have a de facto relationship with Ms Wang as claimed and that was central to his eligibility for the visa. The Tribunal has also formed the view that the applicant was aware that his application contained incorrect information and was agreeable to it. That is, he had authorised the fraud. The Tribunal finds that  these circumstances weigh very heavily in favour of the cancellation and outweigh other considerations.

   Conclusion

6. 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

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

   Kira Raif
   Senior Member