She (Migration)

[2022] AATA 3604

She (Migration) [2022] AATA 3604 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zheyu She

REPRESENTATIVE:  Mr Jia Li

CASE NUMBER:  2111677

HOME AFFAIRS REFERENCE(S):          BCC2021/1427240

MEMBER:Michelle East

DATE:29 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Statement made on 29 September 2022 at 1:22pm

CATCHWORDS

MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled - Nominated – genuine and continuing relationship – bogus document – fraudulently altered bank statements – no shared household or finances – applicant in a new relationship – high-risk pregnancy – business established in Australia – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 197, 198, 359
Migration Regulations 1994, rr 2.03, 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 190 - Skilled - Nominated visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with sections 101(b) and 103 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 15 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Li ZOU.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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?

9. 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 in the following respects:

   -The applicant provided answers at pages 3, 4 and 5 of the Skilled Nominated (subclass 190) visa application where it was stated that he and the primary visa applicant (PVA) were in a de facto relationship and that the relationship began on 18 July 2015.  As the evidence provided to demonstrate the parties were living together appeared to have been intentionally altered, it indicates the parties were not living in a de facto relationship at that time.

   -Furthermore, the applicant provided a document entitled ‘Love Story’ with the visa application which contradicts the date on which they stated their relationship began.

   -By answering ‘yes’ to the declaration on page 11 of their visa application to provide complete and correct information in every detail of their application form, they have not complied because it appears the applicant and the primary visa applicant were not residing in Rhodes as de-facto partners.

   -The delegate reasonably suspected that the three bank statements provided as part of the visa application had been digitally altered because a forensic examination undertaken by the Department on the documents found the residential address shown on the document to not match the residential address officially linked and registered to those documents.  Therefore, the applicant appears to have not complied with his obligations under section 103 of the Act.

10. The applicant does not concede that incorrect information was provided as part of the visa application, nor does he concede that a bogus document as defined by section 5(1) was provided in support of the visa application.

    Non-compliance with section 101(b) of the Act

11. Various documents were submitted as part of the applicant’s visa application as evidence that he was in a de facto relationship with the PVA.

12. Included in these documents were the following Commonwealth Bank statements:

    -Mr Z SHE and PVA – Rhodes, 1.7.15 – 31.12.15

    -Mr Z SHE and PVA – Rhodes, 1.1.16 – 30.6.16

    -Mr Z SHE and PVA – Rhodes, 1.7.16 – 23.11.16

13. The applicant provided a letter entitled ‘Love Story’ where he said he met the PVA at an Easter party in 2015, where he asked her to be his girlfriend, spent the night together on 18 July 2015 and then moved in together on 20 August 2015.

14. On his incoming passenger card (PAX) dated 22 February 2016, he declared his intended address to be in Bexley.  Another PAX dated 12 February 2017 declared an address in Maher St, Hurstville.  Prior to the PAX which gave the Bexley address, another address in Hurstville was provided.

15. During the time the applicant had declared he was in a de facto relationship with the PVA, the Rhodes address was not stated on his PAX.

16. The delegate noted that the first statement dated 1.7.15 – 31.12.15 which included highlighted transactions in July 2015 to demonstrate shared expenses, pre-dated the date on which the applicant said his de facto relationship with the PVA commenced.

17. The delegate also noted that the majority of the transactions occurred in Hurstville with only one in Rhodes.  Given the distance between the two suburbs and the time the applicant and the PVA were said to be living together, the delegate did not consider it unreasonable to expect some transactions to be in Rhodes.

18. The delegate therefore considered that there was non-compliance with s 101(b) of the Act because the parties were not in fact living in a de facto relationship at the time of the visa application.

19. The applicant responded to the Notice of Intention to Consider Cancellation (NOICC) on 30 July 2021.

20. In that response he affirmed that his relationship with the PVA had been genuine but they had separated ‘in the peaceful breakup because of our difference idea of life’. (sic)

21. The applicant said that he used to live in Hurstville prior to living in Rhodes but still ate and drank there regularly with his former partner, only returning to Rhodes at night.

22. The applicant said the incorrect addresses on his PAX cards were an honest mistake because he previously used those addresses which were more convenient for parcel and mail delivery.  This is despite the PAX card of February 2016 being completed immediately after the supposed commencement of his relationship.

23. The applicant included bank statements for the period 1.1.16 – 30.6.16 which had identical transactions to those provided with the visa application, except that the account is in his name only and reflects an address in Hurstville.

24. The applicant provided further information to the Tribunal about the legitimacy of his relationship with the PVA.  This is as follows:

    -Statutory Declaration of Li Zou, the applicant’s current partner dated 7 September 2022

    -Signed statement from Kang (Kenny) Liu, a friend of the applicant, dated 2 September 2022

    -Signed statement from the applicant’s parents dated 2 September 2022

    -Signed statement from Jialong Liu, younger brother of Kang Liu dated 8 September 2022

    -Statutory Declaration of Weihan Li, friend of the applicant dated 9 September 2022

    -Updated statement from the applicant dated 8 September 2022

25. In the updated statement from the applicant, he details the aspects of his relationship as evidence that he was in a genuine de facto relationship with the PVA, his previous partner. His statements are supported by evidence provided in the statements submitted by his friends and family members.

26. None of these witnesses was available for cross-examination or verification of their evidence.

27. The Tribunal questioned the applicant extensively on whether he was legitimately in a de-facto relationship with the PVA. 

28. The Tribunal acknowledges the difficulty with retrospectively assessing the merits of a claimed partner de-facto relationship.  Without any independent witnesses available for oral testimony and questioning it is almost impossible to accurately determine the legitimacy of that relationship.  The applicant did confirm in his oral evidence that he was not living with the PVA and had acknowledged that he therefore did not satisfy the co-habitation criteria in s5CB(2) of the Act and reg 2.03A of the Regulations.  Although the requirement for 12 months co-habitation is not part of the de-facto definition in s 5CB, the length of the relationship may be relevant in assessing whether the relationship was genuine and continuing.

29. The Tribunal finds, on the basis of the applicant’s oral evidence that he was not living with the PVA at any time, instead saying it was more convenient for him to be living in Hurstville which was closer to his work.

30. The applicant had claimed that their relationship began in July 2015 and the visa application was lodged in November 2016.

31. Taking the evidence at its best, the parties may have commenced a romantic relationship in July 2015 but at the date of the visa application, didn’t satisfy the definition of de-facto partners. 

32. The Tribunal makes these findings for the following reasons.  At no time, did the parties live together at the same address, despite bank statements and other documents being provided to indicate a shared address in Rhodes.  They appeared to have some social recognition of their relationship.  They did not have a shared household, despite the applicant claiming he spent many nights staying with the PVA in her apartment.  They did not share their finances, although the applicant said he gave money to the PVA for expenses and there was no clear evidence that the parties had a mutual commitment to the relationship which was seen as long term and continuing. 

33. The applicant’s current partner in her statutory declaration has said that they are unable to provide any evidence because both of them have changed their phones several times and they had also bought a new computer.

34. In addition to this, the applicant claimed at the hearing that he had been the victim of an unethical migration agent who fraudulently altered his documents without his knowledge or consent.  He also said that the migration agent who submitted the visa application incorrectly stated they were living together.

35. When the Tribunal referred to the Form 80 provided which was signed by the applicant and listed him as living in Rhodes from August 2015, the applicant had no response.

36. Evidence was led from the bar table by the applicant’s representative that they were aware of this agent and that they were allegedly charging exorbitant sums for fraudulent visa claims.  The Tribunal asked the applicant how much he had paid the agent and he said that had been the PVA’s responsibility, although he had given her some money.

37. The Tribunal also noted that the visa application had been uploaded from a private email account and no migration agent was registered on the application form.  The representative again said that this agent had allegedly created false email accounts to upload the forms.

38. This evidence of an allegedly fraudulent un-named migration agent led from the bar table cannot be given any weight at all.  For the Tribunal to even consider this as a possibility, it would require more than evidence from an unsworn representative from the bar table.  The allegations are extremely serious, and it would be entirely inappropriate for this Tribunal to make any factual findings with respect to the allegations without any probative evidence to support them.

39. Accordingly, the Tribunal gives no weight to the allegations that the application was submitted by an unregistered, unethical migration agent without the applicant’s knowledge or consent.

40. On the basis of the documents provided and the oral evidence led by the applicant the Tribunal finds that the applicant was not in a genuine de-facto relationship with the PVA at the time they lodged their visa application.

41. The Tribunal finds that the applicant completed the visa application form in a way that incorrect answers were given or provided.

42. The Tribunal is therefore satisfied and finds that there was non-compliance with s 101(b) of the Act because the parties were not in fact living in a de facto relationship at the time of the visa application.

43. The Tribunal finds the applicant did not comply with s 101 of the Act in a way described in the s 107 Notice.

    Non-compliance with section 103 of the Act

44. ‘Bogus Document’ is defined in section 5(1) of the Act to include:

    (b) is counterfeit or has been altered by a person who does not have authority to do so

45. Forensic testing of the three bank statements provided demonstrated that the address shown on the documents did not match the registered address officially linked and registered to those documents.

46. The applicant claimed that the statements were altered without his knowledge or consent by his migration agent.  The Tribunal asked the applicant for the agent’s name and any receipts for payment made by him and/or his former partner.  As detailed above, this evidence was not provided.

47. The Tribunal accepts that is theoretically possible to accept the applicant’s explanation as to the genesis of the bogus document but, finds it highly improbable.

48. In any case, responsibility for the documents rests with the applicant when lodging his visa application.

49. The Tribunal finds non-compliance with s 103 of the Act by providing a bogus document, that is three bank statements which had been fraudulently altered by a person without authority to reflect a joint account at an alleged shared address.

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

    Should the visa be cancelled?

51. 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).

52. 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. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

53. 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.

    Prescribed circumstances

54. The prescribed circumstances that are to be considered before making a decision are set out in r 2.41 of the Regulations

    The correct information

55. The correct information is that the applicant was not in a de facto relationship with the PVA when he applied for his visa on 11 November 2016.

56. The only basis upon which the applicant was granted his visa was that he was a member of the family unit of the PVA.

57. The Tribunal gives this some weight in favour of its discretion to cancel the visa.

    The content of the genuine document (if any)

58. The genuine document was a bank statement in the applicant’s name only with an address in Hurstville.  This strongly indicated that the applicant was not living with the PVA as claimed and did not share finances with her, as claimed.

59. The Tribunal gives this some weight in favour of its discretion to cancel the visa.

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

60. The applicant provided bogus documents in the form of bank statements to demonstrate a shared bank account and the same residential address.  This was intended to indicate the parties were in a de-facto relationship.  As noted above, the Tribunal has found there is insufficient evidence to demonstrate the parties were in a de-facto relationship.  The applicant was granted his visa solely on the basis of being a dependent of the PVA.

61. The Tribunal gives this significant weight in favour of its discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

62. As outlined above the Tribunal has found that the non-compliance was deliberate and intentional on behalf of the applicant and most likely the PVA.  The applicant has attempted to deflect blame from himself by stating that he had an agent who fabricated the bogus documents and also submitted false information on their behalf.

63. There is simply no evidence other than unsworn evidence from the bar table as to this fraudulent activity, which the Tribunal does not give any weight to.

64. Furthermore, the responsibility to submit accurate documents ultimately rests with the visa applicant.  It is the basis upon which the integrity of the migration scheme lies.

65. The Tribunal gives this substantial weight in favour of its discretion to cancel the visa.

    The present circumstances of this visa holder

66. The applicant gave evidence that he is currently in a new relationship and that his new partner, Ms Zou, is pregnant.  Medical evidence was provided as proof of the pregnancy.

67. The Tribunal requested Ms Zou attend so that it was able to assess the legitimacy of the claimed new relationship.

68. The applicant and Ms Zou were questioned separately about relevant details regarding their relationship and the Tribunal is satisfied that the relationship appears to be legitimate.

69. The evidence submitted demonstrated that they have the indicia of a committed relationship and the Tribunal has no reason to suspect that the pregnancy is to a different father.

1. The applicant also provided his partner’s health policy which was updated on 11 June 2022 to give the applicant authority to manage her health insurance.

2. Ms Zou gave evidence of a complication in her pregnancy which could impact the development of the foetus and baby.  Medical evidence in support of this evidence was also provided.  The applicant does not have working rights on his visa and his new partner is working two jobs to support herself and the applicant as well as making provisions for when the baby is born.  The parties also have two border collie dogs.  They are concerned at having to return to China and the risk to the new partner particularly with a high-risk pregnancy.  They also have concerns about taking their dogs back to China and the inherent risks of travelling and exposing themselves to the Covid-19 virus whilst pregnant.

3. The Tribunal notes that it found the evidence of Ms Zou to be particularly compelling.  She presented as a genuine, softly spoken and caring partner to the applicant. 

4. Ms Zou has a separate visa status to the applicant and his removal from Australia will not necessarily have a direct and immediate impact on her.  To minimise the impact on her of his removal however is to ignore the human aspect of this decision.  She is pregnant with their child and is having a high-risk pregnancy.  The applicant cannot work and financially support the new partner and his new baby.  Evidence provided also indicates the pregnancy was unplanned and the baby was conceived while the new partner was taking birth control.

5. This leads the Tribunal to the conclusion that the intention behind the pregnancy was not a deliberate attempt to circumvent a possible visa cancellation by the applicant and his new partner.

6. Having a baby in these uncertain circumstances is clearly less than ideal, however, it is not the Tribunal’s role to pass judgement.  The reality is that there is an unplanned high-risk pregnancy and this factor weighs heavily in favour of the Tribunal not exercising its discretion to cancel the visa.

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

7. This part of the Act contains the obligations to fill in an application form or passenger card (PAX) correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.

8. There is no information before the Tribunal to indicate the applicant provided incorrect information that may have constituted non-compliance with section 107(2) of subdivision C of the Act or that he has not complied with any other requirements in relation to subdivision C of the Act.

9. The Tribunal does note the inconsistent addresses provided by the applicant on his PAX cards however is unable to find that these were necessarily incorrect.

10. The Tribunal finds this weighs slightly in favour of not cancelling the visa.

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

11. Apart from the non-compliance particularised in the s 107 notice, the Tribunal does not have evidence that demonstrates other instances of non-compliance.

12. Accordingly, the Tribunal finds there are no known instances of non-compliance and the Tribunal gives this some weight in favour of not cancelling the visa.

    The time that has elapsed since non-compliance

13. The incorrect information was provided in the application form dated November 2016.  The Tribunal is not aware of any further instances of non-compliance since that time.

14. The Tribunal accepts a significant period of time has passed and the applicant has settled in Australia in that time.

15. The Tribunal gives this weight in favour of not cancelling the visa.

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

16. There is no evidence before the Tribunal indicating any breaches of the law since the non-compliance.

17. The Tribunal gives this weight in favour of not cancelling the visa.

    Any contribution made by the holder to the community

18. The applicant had established a travel business in Western Australia with the aim of promoting WA to overseas tourists.  Unfortunately, due to Covid, this business had to close.

19. The Tribunal therefore accepts that the applicant has made a small contribution to the Australian community and gives this some weight in favour of not cancelling the visa.

    Other circumstances

20. As stated above, the Tribunal may have regard to other circumstances, including those set out in departmental policy.

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

21. If the applicant’s visa is cancelled he will be an unlawful non-citizen and liable for detention under s 189 of the Act and removal under s 198 of the Act.  Under s 197C of the Act, for the purposes of removal under s 198 it is irrelevant whether Australia has non-refoulement obligations or whether there has been an assessment of Australia’s non-refoulement obligations.

22. The applicant may be subject to section 48 of the Act preventing him from applying for further visas, he may not be permitted to work if granted a temporary visa for a specified period and he may be held in immigration detention.

23. Whilst these are all serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation.  Furthermore, the applicant is entitled to return to China.

    Whether there would be consequential cancellations under s 140

24. Under s 140 of the Act, if a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.

25. As the applicant is himself the original dependent visa holder the cancellation of this visa would not result in the cancellation of any other visas.

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

26. The applicant is a citizen of the People’s Republic of China and has made no claim for a protection visa.  There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations.

27. The Tribunal gives this factor no weight either in favour of cancelling or not cancelling the visa.

    Best interests of the child

28. Article 3 of the Convention on the Rights of the Child requires that all actions involving children, the best interests of the child shall be the primary consideration. 

29. In this matter, there is a potential child, however, there is no suggestion that if the cancellation were to remain that the child would be separated from his father.  Indications given at the hearing were that the new partner would return to China with the applicant.

30. In any case, until the child is born the provisions of the Convention do not arise to be considered.

100.   The Tribunal gives this factor no weight either in favour of cancelling or not cancelling the visa.

Section 375A Certificate

101.   The Tribunal was provided with a section 375A Certificate regarding non-disclosure of certain information under section 375A of the Act.  This section prohibits the Tribunal from disclosing or providing information subject to the Certificate on the basis that it would:

-Disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods; and

-Where information was provided ‘in confidence’ the provider of the information has not consented to the disclosure of the information to the review applicant.

102.   At the hearing the representative was provided with a copy of the Certificate and was invited to make submissions as to the Certificate’s validity.  Extra time was provided for the response.  In his submission dated 22 September 2022 the representative accepted the Certificate was validly issued.

103.   The Tribunal did provide the applicant with the gist of the information.  The Tribunal was also satisfied that the Certificate was valid and sufficient particulars were provided of the information to enable the applicant to provide an informed response.  Furthermore, information relevant to that covered by the Certificate was traversed by the delegate in its decision.

104.   The Tribunal is satisfied that the Certificate was valid and that its procedural obligations have been discharged.

Section 376 Certificate

105.   The Tribunal was also provided with a section 376 Certificate regarding non-disclosure of certain information under section 376 of the Act.  This section gives the Tribunal discretion to disclose certain information on the basis that it contains information that was given to the Minister or to an officer of the Department, in confidence.

106.   The Tribunal again invited submissions from the representative as to the validity of the Certificate.  In his submission dated 22 September 2022 the representative accepted the Certificate was validly issued.

107.   The Tribunal gave the gist of the information to the applicant, namely, that the information was potentially adverse information from the applicant’s claimed de-facto partner.  The Tribunal made it clear that it had no intention of having any regard to that information and would not be placing on weight on the information in making its decision.

108.   The Tribunal is satisfied that the Certificate was valid and that its procedural obligations have been discharged.

Adverse Information – s 359AA of the Act

109.   As noted above, the applicant’s current partner also gave evidence at the hearing.  Two discrepancies arose on the evidence given by her and the applicant regarding relatively minor points.  These inconsistencies were put to the applicant pursuant to s 359AA of the Act and he was given further time within which to respond to them.  A statutory declaration was provided by the applicant as well as his partner explaining the inconsistencies.

110.   The Tribunal is satisfied that the inconsistencies were minor and that the explanation given by the applicant in his statutory declaration was acceptable.  Accordingly, the Tribunal has had no regard to those inconsistencies in making its decision.

Conclusion

111.   The Tribunal has serious concerns about the applicant’s behaviour.  At worst, he has deliberately misled the Department (and by extension the Tribunal) by manufacturing a partner relationship in order to gain permanent residency by non-legitimate means.  He may have also had documents deliberately altered to support those claims and provided the bogus documents to the Department.

112.   At best, he has been a somewhat ‘innocent’ victim of an elaborate scam orchestrated by an allegedly unlicenced migration agent. 

113.   Even if he did not knowingly participate in the fraud, he nevertheless was careless in entrusting the lodgement of what are important migration documents to a third party.

114.   The Tribunal is somewhat sceptical of the applicant’s claims and his complete denial of any wrongdoing.

115.   As detailed above, 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 and there are grounds for cancelling his visa.

116.   The Tribunal has considered all the factors that weigh against cancelling the visa and finds itself in a situation where it is not prepared to exercise its discretion to cancel the visa.  The reality is that there is an innocent third party (the new partner) and their unborn baby.

117.   The medical evidence demonstrates that the pregnancy is particularly high risk and the baby may face significant health issues.  The Tribunal gives these factors significant weight in favour of not exercising its discretion to cancel the visa.

118.   In the particular circumstances of this case, as discussed above, the Tribunal concludes that the visa should not be cancelled.

decision

119.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Michelle East
Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

(1)In this Act, unless the contrary intention appears:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)     purports to have been, but was not, issued in respect of the person; or

(b)     is counterfeit or has been altered by a person who does not have authority to do so; or

(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation

In this Subdivision:

application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.

A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)     giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)      stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)      requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)     visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)      having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.