Shen (Migration)

Shen (Migration) [2023] AATA 342 (15 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kaihao Shen
REPRESENTATIVE:  Ms Xiangyue Hu
CASE NUMBER:  2117469
HOME AFFAIRS REFERENCE(S):          BCC2021/1383430
MEMBER:Antonio Dronjic
DATE:15 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 15 February 2023 at 4:50pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – bogus documents with previous visa application – fraudulently altered invoices – relationship was not genuine – payment to be included in a visa application as a partner – allegations against former migration agent – property and business purchases in Australia – intentionally false statement – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 359
Migration Regulations 1994, Schedule 2, cl 189.311; rr 1.03, 1.12, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the applicant’s Resident Return (Subclass 155) visa (hereafter referred to as the RRV) on the basis that there was non-compliance with s 103 of the Act in relation to a previously held Skilled Independent Subclass 189 visa.
The delegate concluded that the visa holder provided a bogus document in the form of Vodafone tax invoices, dating from 17 January 2014 to 16 November 2014, with his application for a Subclass 189 visa that was granted by the Department on 15 May 2015.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant first came to Australia on 18 July 2011 as a holder of a Student visa that remained valid until 30 August 2015. On 13 February 2015, he and Ms Zhang registered their de facto relationship at the NSW Registry of Births Deaths & Marriages.
On 13 March 2015, the visa holder was included in an application for a Subclass 189 visa as the dependent spouse of Jing Yi Zhang. The visa was subsequently granted on 15 May 2015. On 15 July 2019, the visa holder made an application for the RRV, and this visa was granted by the Department on 18 July 2019.
Following the grant of the Subclass 189 visa, the Department conducted integrity checks on the information and documents the applicant provided in support of the application for the Subclass 189 visa. A forensic examination undertaken by the Department of the Vodafone mobile phone bills provided with his Subclass 189 visa application revealed that the residential addresses shown on the invoices did not match the residential addresses officially linked and registered to those documents.
On 16 September 2021 a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant. The applicant responded to the NOICC on 1 October 2021 and on 17 November 2021, the delegate decided to cancel the RRV. The delegate concluded that the Vodafone invoices submitted with the application for a Subclass 189 visa were bogus documents as they had been altered by a person without authority to do so.
The applicant applied to the Tribunal on 24 November 2021 for review of the delegate’s decision. With the application, the applicant submitted a copy of the primary decision record.
On 6 December 2022, the Tribunal wrote to the applicant advising him that it had considered the material before it but was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 2 February 2023.
On 30 January 2023, the Tribunal received submissions from the applicant’s representative. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 2 February 2023, the Tribunal received submissions in several emails from the applicant’s representative. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
The applicant appeared before the Tribunal on 2 February 2023 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. The representative attended the Tribunal hearing.
The applicant is 34 years of age and a citizen of China. He is single and has no blood relatives in Australia. His parents live in China. He gave evidence that he does not own any property in China.
He first arrived in Australia on 18 July 2011 as a holder of a Student visa. By 2013, he had completed a Diploma of Management in Australia. In 2017 he purchased a property at Wentworth Point in Sydney for AU$1.98 million and the outstanding mortgage on this property is approximately $700,000.
The applicant confirmed that he submitted his statutory declaration dated 30 September 2021 to the Department, that everything stated in that declaration is true and correct and that he does not wish to change or add anything stated in the declaration.
The applicant further confirmed that he submitted his statutory declaration dated 29 January 2023 to the Tribunal, that everything stated in that declaration is true and correct and that he does not wish to change or add anything stated in the declaration.
The Tribunal noted that in his statutory declaration of 29 January 2023, the applicant stated that he has owned a profitable business in Australia since 2013 (Duck King International Pty Ltd) where he employs three Australian citizens or permanent residents. The business is leasing a commercial property for which it pays a monthly rent of $5,500.
When ask if he could provide profit and loss statements for his business for the two most recent financial years, the applicant gave evidence that he cannot do that because the Australian Taxation Office (ATO) is still conducting an audit of his business.
He gave evidence that the ATO commenced auditing in May 2019 and that the initial outcome was ‘unsatisfactory’. His accountant has lodged an objection to the auditing outcome, according to which the applicant owes the ATO approximately $40,000.
The applicant stated in his evidence that in late 2013 he commenced living at a property in Forest Road, Hurstville. This was a 2-bedroom apartment for which he signed a tenancy agreement for the period of 12 months, and paid bond and monthly rent (by bank transfer) of $1,600.
He gave evidence that, before moving with him to the Forest Road apartment in May 2014, Ms Zhang lived with her ‘sister’ at Dean Street in Strathfield South, NSW. The applicant has never been to the Dean Street apartment.
Upon moving to the Forest Road apartment, Ms Zhang did not sign the tenancy agreement. In addition, the applicant did not inform his landlord that another person was moving into this apartment. Ms Zhang did not make contributions toward the rent payment. The applicant stated that that this was the ‘man’s responsibility’.
The Tribunal noted that in his statutory declaration of 30 September 2021, the applicant stated that he and Ms Zhang opened a joint bank account on 16 December 2014. Considering the applicant’s claim that Ms Zhang moved into the Forest Road apartment in May 2014, the Tribunal enquired why they waited approximately six months before opening a joint bank account. The applicant stated that they ‘did separate spending’ before opening a joint account.
When questioned by the Tribunal, the applicant gave evidence that they registered their de facto relationship and opened a joint bank account acting on advice given by their then migration agent.
The applicant stated that he and Ms Zhang lived together at the Forest Road apartment from May 2014 until 3 December 2015, when Ms Zhang travelled to the USA.
The applicant gave evidence that he first met his then migration agent Ms Yue Jia in early 2014. He attended her offices located at King Street, Sydney on one occasion and without Ms Zhang. On the second occasion, he and Ms Zhang had a coffee with their agent outside the agent’s office.
When questioned, the applicant gave evidence that they did not sign any written agreement with their agent, that Ms Zhang paid for the agent’s fees, and he paid the immigration fees for both. He was unable to remember how he paid for those fees.
When asked if he checked the answers provided in the application form and documents submitted with their application for a Subclass 189 visa, the applicant initially stated that he did. When asked if he checked Vodafone bills issued in Ms Zhang’s name (from 17 January 2014 to 16 November 2014), the applicant gave evidence that he only checked documents he provided to the agent and not documents provided by Ms Zhang.
The Tribunal observed that in his written submissions of 30 January 2023 provided by his current adviser, it was stated that neither he nor Ms Zhang provided bogus documents to the Department. The Tribunal questioned how the applicant could be sure that Ms Zhang did not provide bogus documents if he never checked documents provided by her.
He then stated that he only saw one Vodafone bill issued in Ms Zhang’s name from 17 November 2014. That invoice stated Forest Road as Ms Zhang’s residential address.
The Tribunal noted that it was his responsibility to check that all answers provided in the visa application form are correct and all documents submitted with the application age genuine documents, regardless of whether he had a migration agent acting on his behalf at the relevant time.
The Tribunal’s oral invitation to comment on or respond to information
In accordance with s 359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of a reason for affirming the decision that is under review. The information was:
In her response to NOICC of 7December 2021 Ms Zhang acknowledged that the information provided was incorrect and that the documents provided had been fraudulently altered.
In her statutory declaration of 7 December 2021, Ms Zhang declared that In November 2014 migration agent advised her to add dependant applicant who did not met the visa criteria.
In the same statutory declaration, Ms Zhang stated all addresses where she lived during the period from February 2014 to January 2016 and the Forest Road address in not included on that list. In fact, she declared that from Feb 2014 to August 2014 she lived at Belmore Street Burwood and from August 2014 to January 2016 at Strathfield address.
On 4 January 2015, she declared Dean Street address in her incoming passenger card.
According to the primary decision record related to her visa cancellation, Ms Zhang agrees the answers provided in the in her Skilled – Independent visa application form, where you were named as her defacto partner, and that she resided with you at Forest Road Hurstville are incorrect.
The visa holder states that her migration agent Ms Jia had given her advice to include Mr Shen as a dependent applicant, even though the relationship was not genuine.
She agreed that acting on Ms Jia’s advice, she changed her address for Vodafone bills from 18 November 2014 onwards, opened joint bank accounts with Mr Shen, took photos with her parents and registered de-facto relationship.
The Tribunal explained the relevance of the information and consequences of the Tribunal relying on this information. The applicant confirmed that he understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so.
The applicant indicated that he intends to provide his comment on or response to the information without seeking additional time to do so.
In his response, the applicant stated that Ms Zhang directed him to say ‘all of this’ as she is soon getting married and because she may not know that her visa would be cancelled. He stated that his visa was cancelled before Ms Zhang’s visa and that all evidence he provided was after her visa cancellation.
The Tribunal asked the applicant to explain why Ms Zhang would instruct him to give answers that are not correct. He stated that Ms Zhang never lived at the Forest Road address with him. He was asked by Ms Zhang to say that.
When asked why he would listen to her instructions as to what evidence he should give, the applicant stated that ‘she was worried before her visa was cancelled’. The Tribunal noted that the applicant knew that Ms Zhang’s visa was also cancelled and asked why he continued to provide incorrect information at the hearing. The applicant stated that since he knew that he provided something untrue, he could only continue to ‘play the same way’.
When the Tribunal ask the applicant if he paid money to Ms Zhang to include him in her visa application, the applicant stated that he paid her about $80,000 to be included in her application. He stated that the last time he had any contact with Ms Zhang was in September or October 2021 after his visa was cancelled. He attempted to contact her two or three weeks ago, but she did not respond.
He stated that Ms Zhang never lived with him at the Forest Road apartment and that they were never in a genuine de facto relationship.
The Tribunal noted that the applicant provided two statutory declarations where he stated that he was in a genuine relationship with Ms Zhang and that from May 2014 to December 2015 they resided together, none of which is true. The Tribunal observed that in each statutory declaration he signed it was stated that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence punishable by up to four years of imprisonment. The Tribunal also reminded the applicant that he gave sworn evidence at the hearing.
The Tribunal noted that the applicant’s adviser provided submissions of 24 August 2021 and 21 March 2022, in which she addressed matters relevant to discretionary considerations in relation to whether to cancel the visa. The Tribunal explained the requirements of reg 2.41 and the Department’s policy. After confirming with the applicant that he read and understood those submissions, the Tribunal invited the applicant to bring to its attention any other matters that were previously not addressed in those submissions.
The applicant stated that in 2020, Ms Zhang told him about her fiancée and that she was planning to get married, so she did not want to have any issues with her visa. To avoid cancellation of her visa, she instructed him what to say to the Tribunal about the de facto relationship.
On 3 February 2023, the applicant’s representative provided post-submissions addressing the privilege against self-incrimination.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.
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 as Attachment C.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s 107 notice was non-compliance with s 103 of the Act and was based on the provision of bogus documents by the applicant with his application for a Subclass 189 visa in the form of Vodafone tax invoices dating from 17 January 2014 to 16 November 2014. It was further stated in the s 107 notice that the Vodaphone invoices referred to above were bogus as they have been altered by a person without authority to do so.
On 13 March 2015, the applicant applied for a Subclass 189 visa as a member of the family unit (de facto partner) of Ms Zhang. The Subclass 189 visa application form indicated that the applicant and Ms Zhang commenced a de facto relationship on 14 February 2014. In his statutory declaration and oral evidence, the applicant stated that he and Ms Zhang lived together at the Forest Road apartment from May 2014 until 3 December 2015.
The applicant declared in the visa application form that he understood that the giving of false or misleading information is a serious offence, that he read and understood the information provided in the application and that he provided complete and correct information in every detail in the form and on any attachments.
The delegate who issued the s 107 notice considered that the applicant had to satisfy the definition of ‘Member of the family unit’, as provided for in regs 1.03 and 1.12 to meet the requirements in cl 189.311 for the grant of the visa.
Regulation 1.12 of the Migration Regulations 1994 (Cth) (the Regulations) relevantly defines ‘Member of the family unit’ (in part) as a ‘spouse or de facto partner’ of the family head. Section 5CB of the Act defines de facto relationship for the purposes of ‘Member of the family unit’ as:
Section 5CB De facto partner
De facto partners
(1)For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2)For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a)   they have a mutual commitment to a shared life to the exclusion of all others; and
(b)   the relationship between them is genuine and continuing; and
(c)    they:
(i)live together; or
(ii)    do not live separately and apart on a permanent basis; and
(d)    they are not related by family (see subsection (4)).
The delegate considered that, based on the material provided regarding the applicant and Ms Zhang’s cohabitation, as well as meeting other relevant criteria, the applicant was granted the Subclass 189 visa as a de facto partner of Ms Zhang.
The s 107 notice indicates that, following the grant of the visa, a forensic examination was undertaken by the Department of the above mentioned Vodaphone invoices, which found that the residential addresses shown on the Vodaphone phone bills did not match the residential addresses officially linked and registered to those documents. The Tribunal gives significant weight to the outcome of the document examination investigation.

In her submissions of 1 October 2021, the applicant’s representative stated that the applicant agrees that there was non-compliance with the s 103 of the Act but claims that Vodaphone invoices were altered by his former migration agent without his knowledge. This claim was considered by the Tribunal In considering the circumstances in which the non-compliance occurred.
For the purpose of determining whether there was non-compliance with s 103 of the Act, as described in the s 107 notice, the Tribunal notes that it is not necessary to establish that the applicant had any knowledge of or was personally responsible for the alteration of those documents. Section 103 requires that a non-citizen must not give, present, produce or provide to an officer, an authorised system or the Minister or a tribunal performing a function or purpose under the Act, a bogus document or cause such a document to be so given, presented, produced or provided. Accordingly, if it is found that a bogus document has been so provided, or caused to be provided, then the applicant will have failed to comply with the obligation in s 103 of the Act.
Based on the evidence before it, the Tribunal is satisfied 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?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in 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.
The correct information
The non-compliance in this case relates to the provision of bogus documents. The s 107 notice did not particularise information that was said to be incorrect. Accordingly, the Tribunal gives neutral weight to this factor in its considerations.
The content of any genuine document
With his application for a Subclass 189 visa, and to demonstrate the existence of his de facto relationship with Ms Zhang, the applicant provided to the Department Vodafone tax invoices dating from 17 January 2014 to 16 November 2014.
A forensic examination undertaken by the Department of the Vodafone phone bills revealed that the residential addresses shown on the invoices did not match the residential addresses officially linked and registered to those documents.
At the hearing, the applicant admitted that he never lived in a de facto relationship with Ms Zhang, that they never cohabitated at the Forest Road address and that he paid approximately $80,000 to Ms Zhang to be included in her visa application as her de facto partner.
Based on the evidence before it, the Tribunal is satisfied that the Vodafone tax invoices dating from 17 January 2014 to 16 November 2014 submitted with the application for a Subclass 189 visa had been intentionally altered by someone who did not have the authority to do so.
The Tribunal considers that the addresses on the Vodaphone invoices were altered for the purpose of demonstrating that Ms Zhang and the applicant, who was included in Ms Zhang’s Subclass 189 visa application as her de facto, had the same residential address.
The Tribunal considers intentional unauthorised alterations made to the content of genuine documents to be significant and gives weight to this consideration in favour of cancelling the applicant’s visa.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information
The applicant was granted a Subclass 189 visa based on his claim that he was a de facto partner of Ms Zhang. To satisfy the definition of de facto partner, as set out in s 5CB of the Act, the applicant would have had to demonstrate, among other things, that he and Ms Zhang lived together or did not live separately and apart on a permanent basis: s 5CB(2)(c).
According to the particulars of the s 107 notice, which was also set out in the delegate’s decision record, the applicant and Ms Zhang claimed to have commenced a de facto relationship on 14 February 2014 and to have resided at the Forest Road apartment from May 2014 to December 2015.
As evidence of their cohabitation, the applicant and Ms Zhang provided, among other things, Vodafone tax invoices dating from 17 January 2014 to 16 November 2014.
The Tribunal is satisfied that the decision to grant the applicant the Subclass 189 visa (as a member of Ms Zhang’s family unit) was based, in part, on the bogus documents that indicated that the applicant and Ms Zhang had been residing together at the same address at Forest Road, NSW.
The Tribunal considers it significant that the decision to grant the applicant a permanent residence visa was based, partly, on a bogus document and gives weight to this consideration in favour of cancelling the applicant’s visa.
The circumstances in which the non-compliance occurred
In the applicant’s statutory declarations and submissions provided by his current adviser, it was stated that both the applicant and Ms Zhang submitted genuine and unaltered documents via email to their former migration agent Ms Yue Jia in 2015. The applicant claims that, for an unknown reason, Ms Yue decided to alter the Vodaphone invoices to create evidence of a de facto relationship between him and Ms Zhang. He further claims that he only discovered that the agent altered the Vodaphone invoices after receiving the NOICC from the Department.
The applicant’s representative submitted that the applicant has not had adequate means to check the content of the documents submitted by the agent to the Department as the application was made through the agent’s Immi Account and the content of the documents is not visible in the Immi Account.
It was further submitted that the applicant neither colluded in the fraud committed by his migration agent nor was he indifferent as to whether the agent used unlawful or dishonest means to attempt to obtain a visa.
At the hearing, after the Tribunal invited the applicant under s 359AA of the Act to comment on or respond to adverse information, the applicant stated that he and Ms Zhang were never in a de facto relationship, and that Ms Zhang never cohabitated with him at the Forest Road property. He further gave evidence that, to be added in her visa application as a secondary applicant, he paid Ms Zhang about $80,000.
In his evidence, the applicant stated that, before lodging the application for a Subclass 189 visa with the Department, he saw a Vodafone bill issued in Ms Zhang’s name from 17 November 2014. That invoice stated Forest Road as Ms Zhang’s residential address. Despite knowing that Ms Zhang never resided at the Forest Road address, he proceeded with the lodgement of the visa application and supporting documentary evidence, including the Vodaphone invoices.
In her statutory declaration of 7 December 2021, Ms Zhang declared that in November 2014 her migration agent advised her to add a dependent applicant who did not meet the visa criteria. The applicant and Ms Zhang were also advised by their migration agent what documents to provide to establish the existence of a de facto relationship, including opening a joint bank account, registering a de facto relationship, providing evidence of cohabitation and taking photos with relatives.
Based on the evidence before it, the Tribunal does not accept the applicant’s claim that his former migration agent altered Vodaphone invoices without his knowledge and without having his instructions to do so. The Tribunal is satisfied that both the applicant and Ms Zhang willingly participated in creating false evidence of their relationship to secure the visa outcome for the applicant. In return, Ms Zhang received ‘about $80,000’ from the applicant.
Both were fully aware that they were not in any de facto relationship, and that Ms Zhang never lived at the Forest Road address with the applicant. They knowingly participated in this fraudulent action.
The Tribunal give this consideration significant weight in favour of cancelling the visa.
Present circumstances of the applicant
The Tribunal accepts that the applicant arrived in Australia in July 2011, and that he has since studied a Diploma of Management, completed in June 2014. The Tribunal also accepts that the applicant purchased a property in Australia for which he has been paying the mortgage. The Tribunal accepts that the applicant has owned a business called Duck King Pty Ltd since December 2013.
Given the length of time that the applicant has been living in Australia, the Tribunal accepts that he has established educational, economic and employment ties. In the circumstances, the Tribunal considers that cancellation of the visa may cause hardship for the applicant and gives some weight to this consideration in favour of not cancelling the visa.
The visa holder's subsequent behaviour in regard to their obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no adverse information before the Tribunal regarding the applicant’s subsequent behaviour in relation to his obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Any other instances of non-compliance
There is no information before the Tribunal which suggests that there were any other instances of non-compliance by the applicant known to the Minister. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
The time that has elapsed since the non-compliance
The non-compliance occurred when the bogus documents were provided in support of the visa application, which was lodged on 13 March 2015. The Tribunal accordingly finds that more than seven years have passed since the non-compliance. The Tribunal considers this period to be a long time and gives this consideration some weight in favour of not cancelling the visa.
Breaches of the law
In his statutory declarations submitted to the Tribunal, the applicant declared that Ms Zhang moved into his apartment in May 2014 and that they continued to reside together at the Forest Road apartment until December 2015.
The Tribunal notes that both statutory declarations provided by the applicant contain a note stating that a person who intentionally makes a false statement in the statutory declaration is guilty of an offence punishable by up to four years of imprisonment.
In his evidence, the applicant admitted that he never lived in a de facto relationship with Ms Zhang, that they never cohabitated at the Forest Road address and that he paid approximately $80,000 to Ms Zhang to be included in her visa application as her de facto partner.
The Tribunal give this consideration significant weight in favour of cancelling the visa.
Contributions made to the community
The applicant submitted that he operates a profitable business in Australia, which currently employs three Australian citizens or permanent residents. In his submissions, it was stated that he has contributed to local economic development and employment by running his business for a period of nine years.
In his evidence given at the hearing, the applicant stated that he is unable to provide profit and loss statements for his business for the two most recent financial years because the ATO is still conducting an audit of his business.
He further stated in his evidence that the ATO commenced auditing in May 2019, that the initial outcome was ‘unsatisfactory’ and that his accountant has lodged an objection to the auditing outcome, according to which the applicant owes the ATO approximately $40,000.
The applicant also stated in his submissions that he donated $51.00 to a research program into the prevention, diagnosis, treatment and cure of childhood cancer. The Tribunal gives this consideration limited weight in favour of not cancelling the visa.
Policy considerations
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual, PAM3, ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Whether there would be consequential cancellations under s 140
The applicant was granted the visa on the basis of satisfying the secondary criteria as a member of the family unit of Ms Zhang. The cancellation of his visa, as a secondary applicant, would not by operation of law (under s 140 of the Act) result in the cancellation of the visa of any other person. The Tribunal accordingly gives neutral weight to this consideration.
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
There are no children whose interests would be affected by the cancellation of the applicant’s visa. The Tribunal gives neutral weight to this consideration.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations

100. There is no evidence, and the applicant has not claimed, that cancellation of his visa would lead to a breach of Australia’s non-refoulement obligations or family unity obligations. The Tribunal gives neutral weight to this consideration.
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
101. In considering the mandatory legal consequences of cancellation, the Tribunal notes the applicant will only become an unlawful non-citizen and liable for detention and removal if he does not depart Australia within the validity period of any bridging visa he currently holds or if he is not granted another visa to remain in Australia. The Tribunal acknowledges that if the visa is cancelled the applicant will be affected by s 48 of the Act, which (without the Minister’s intervention) limits the types of visas he can apply for onshore. The applicant may also be subject to an exclusion period in relation to future visa applications.
102. The Tribunal considers that the mandatory consequences of cancellation are intended by the legislation and gives this consideration limited weight in favour of not cancelling the visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
103. The applicant claims that if his visa remains cancelled and he must close his business, this may cause difficulties for his employees and suppliers, and for the landlord who entered into a commercial lease agreement with him.
104. The applicant also claims that if his visa is cancelled and he must return to China, this may cause him hardship as he must start over again in China in his 30s. He claims that it will be very difficult for him to adapt to a new society as he has considered Australia his home and has lived here for 11 years.
105. The applicant further claims that the cancellation of the visa may cause extreme and long-term psychological hardship and disadvantage to him, by removing his business, his friendship, his properties, his opportunities and his life in Australia.
106. Finally, the applicant claims that the cancellation of the visa may cause his parents in China substantial financial loss. He states that his parents sold a property in China and sent overseas money transfers to him in 2017. He states that he used the money to buy two properties in Sydney. He claims that if his visa is cancelled, he has to quickly sell his properties in Sydney before his departure and this may cause his parents’ substantial financial loss.
107. Based on the evidence before it, the Tribunal accepts that cancellation of the visa may cause personal and financial hardship for the applicant and gives some weight to this consideration in favour of not cancelling the visa.
Overall assessment
108. The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. Considering all the circumstances above, the Tribunal finds that the reason for cancelling the applicant’s visa outweighs any factors, both individually and cumulatively, in favour of a finding that his visa should not be cancelled.
109. While the length of time the applicant has been in Australia, and his business ties and assets in Australia weigh in favour of not cancelling the visa, the Tribunal considers that these are outweighed by the circumstances (as discussed above) in favour of cancellation. The Tribunal considers that the integrity of Australia’s migration program relies on the provision of genuine documents. In this case documents were provided which were bogus, and these documents, in part, led to the grant of a permanent residence visa.
110. In addition, the applicant admitted in his evidence given at the hearing that he and Ms Zhang were never in a de facto relationship, and that Ms Zhang never cohabitated with him at the Forest Road property. He further gave evidence that, to be added in her visa application as a secondary applicant, he paid Ms Zhang about $80,000.
111. 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
112. The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
Antonio Dronjic
Member

Attachment A: Document List
·Legal submissions addressing all submissions and response to s 107 notice from Xiangyue Hu dated 30 January 2023.
·Attachment A: WeChat communication records from 2015 January to May 2015.
·Attachment B: Email titled ‘188 Kaihao Shen Document’ dated 8 April 2015.
·Attachment C: Email titled ‘188 Kaihao Shen Fw: bill & bank statement’ dated 8 February 2015, attaching:
·     Vodaphone tax invoice dated 22 December 2014.
·     Vodaphone tax invoice dated 22 January 2015.
·     Commonwealth Bank statement dated 16 December 2014 – 31 December 2014.
·Attachment D: Email titled ‘188 Kaihao Shen Relation Certificate’ dated 17 February 2015, attaching:
·     New South Wales relationship certificate dated 13 February 2015.

·Attachment E: Statutory declaration from Kaihao Shen dated 29 January 2023.
·Attachment F: Email titled ‘188 Shen, Kaihao – PR IMMI Bridging Visa Grant Notification’ dated 13 March 2015, attaching:
·     Notification of grant of a Bridging visa Kaihao Shen dated 13 March 2015.
·     DIBP tax invoice/receipt dated 13 March 2015.
·     Notification of grant of a Bridging visa Jingyi Zhang dated 13 March 2015.
·Attachment G: Email titled ‘188 Kaihao Shen fw: Zhang Jingyi and Shen Kaihao health check info HAP’ dated 13 March 2015, attaching:
·     Shen, Kaihao HAP referral letter undated.
·     Zhang, Jingyi HAP referral letter undated.
·Attachment H: Email titled ‘188 Kaihao Shen BCC2015/814500 – 280578930 Shen, Kaihao – IMMI grant notification’ dated 15 May 2015, attaching:
·     Kaihao Shen notification of grant of a Skilled - Independent (Subclass 189) visa dated 15 May 2015.
·Attachment I: Duck King International Pty Ltd Westpac Business One account statement 2016 to 2023.
·Attachment J: Duck King International Pty Ltd employee payslips dated 2021 – 23.
·Attachment K: Kaihao Shen executed contract of sale and purchase of land dated 6 November 2017.
·Attachment L: Donation from Kaihao Shen to Great Cycle Challenge dated 30 October 2022.

Attachment B: Document List
·Deed of consent to deemed assignment of lease prepared by Hunt and Hunt lawyers undated.
·Rental tax invoice from Commercial Property Group for the period 1 February 2023 to 28 February 2023 issued 16 January 2023.
·Sub-lease commercial kitchen usage agreement between Big Mouth Foods Pty Ltd and Duck King International Pty Ltd dated 17 August 2020.
·Invoices from Pepe’s Ducks Ltd to Duck King International Pty Ltd from 4 January 2022 to 30 June 2022.
·Invoices from Pepe’s Ducks Ltd to Duck King International Pty Ltd from 30 June 2022 to 29 December 2022.
·Kaihao Shen Diploma of Management from Wentworth Institute dated 25 June 2014.
·Westpac bank statement showing rent paid by Duck King International Pty Ltd dated 1 February 2023.

ATTACHMENT C – Migration Act 1958 (Cth) (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.

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.

[2023] AATA 342

15 February 2023

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