So (Migration)

[2022] AATA 612

So (Migration) [2022] AATA 612 (6 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Pak Ting So
Mr Renhao Liu

CASE NUMBER:  2111363

HOME AFFAIRS REFERENCE(S):          BCC2019/3330375

MEMBER:Kira Raif

DATE:6 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189  (Skilled) Independent visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 06 January 2022 at 5:54pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa – bogus documents –had given incorrect answers in the application – applicant had provided inconsistent and untruthful information about the nature of her relationship – couple were never in a de facto relationship– no jurisdiction with respect to the other applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109, 501
Migration Regulations 1994, r 2.41, Schedule 2

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 first named applicant’s Subclass 189 (Skilled) Independent visa under s 109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a national of China, born in March 1990. She was granted the Skilled visa in October 2016. In June 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 s 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The visa held by the second named applicant was cancelled as a consequence.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 4 January 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 applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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.

   Did the Notice comply with the requirements in s 107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. 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 with s 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for the Skilled visa on 12 May 2016. In that application she included Mr Renhao Liu as her de facto partner, stating that their de facto relationship began in November 2014. The applicant completed a declaration that she had read and understood the information in the application and had provided information that was complete and correct.

11. As evidence of her relationship with Mr Liu, the applicant provided a number of documents, including several Vodafone bills in Mr Liu’s name, addressed to an address at Berala, for the period between December 2014 and May 2016 and St George bank statements for the period from September 2014 to May 2015, also addressed to Mr Liu at the Berala address.

12. The applicant and Mr Liu were granted the Skilled visas in October 2016. Subsequent to the visa grant, the Department had completed a forensic examination of the above documents which determined that the residential address shown on these documents did not match the residential address officially linked and registered to these documents. The delegate concluded that the bank records and phone bills were bogus documents.

13. In her response to the NOICC the applicant submits that she was planning to apply for a visa and found a migration agent, Mr Chen, who informed her that she could apply for a Skilled visa and that her partner Mr Liu could be included in the application. The agent created an email address but she was never given the password. The agent requested bank records and mobile phone statements. The applicant states that after she commenced the relationship, she did not bother changing the address on these documents but the agent informed them there was no issue as they had been in a de facto relationship for over 12 months. The agent recommended for her to update the address with other organisations, which she has done. The applicant states that she paid the agent and was not aware of any fraud. When her partner Mr Liu found another agent to sponsor his mother, he received notice of the character issues. She later attempted to contact Mr Chen but he did not respond to her. The applicant states that she had never seen the bogus documents until she received a copy of the file in September 2019 and she was shocked to see the alterations made. The applicant states that the decision to grant her the visa was not based on bogus documents and the decision to grant the visa to Mr Liu was only partly based on these documents.

14. The applicant provided further written submissions and evidence to the Tribunal on 29 December 2021 and 4 January 2022. These are addressed below as relevant.

15. In oral evidence the applicant told the Tribunal that she trusted the agent, who assured her that she could get enough points. The applicant states that she only provided genuine documents to the agent. The applicant states that she and Mr Liu met through the agent and became friends and later started dating. The applicant states that she met Mr Liu in 2016 when she approached the agent about the visa. She confirmed she did not have a relationship with Mr Liu from 2014 and states that she did not know that information was provided in the application. The applicant states that she met Mr Liu around January 2016. Gradually they chatted on WeChat and got along very well. The applicant states that Mr Liu stayed at her home maybe four nights a week, they spent time together and she met his uncle. The applicant states that her relationship with Mr Liu started around February or March 2016.

16. The Tribunal has formed the view that the applicant’s evidence about the relationship development was quite vague. The applicant claims, essentially (and this is consistent with the oral evidence of Mr Liu) that they were introduced by their migration agent Kevin Chen around January 2016, chatted on WeChat, went to see a movie together in February 2016, held hands and therefore, formed a relationship. Mr Liu told the Tribunal that he was introduced to the applicant by the migration agent. Mr Liu stated that Mr Chen told him it would be hard for him to get the visa on the basis of his study but there was ‘another way’ if he had an Australian partner. Later Mr Chen introduced the applicant to him and he was keen to make friends, so he met her and liked her. The Tribunal does not accept Mr Liu’s suggestion that he met the applicant because he was keen to make friends and she was from the same country. His evidence is that the migration agent, Mr Chen, told Mr Liu that it would be better for him to have an Australian partner to get the Australian visa and soon after that conversation, Mr Chen introduced him to the applicant. The Tribunal is of the view that in such circumstances, it is likely that Mr Liu would have recognised that the introduction was made in order to assist him with the visa.

17. The Tribunal has found both applicants’ evidence about the formation of their relationship to be perfunctory and lacking any level of depth that may be expected when a couple do form a genuine relationship. The Tribunal has several significant concerns about the applicant’s and Mr Liu’s description of the claimed relationship.

18. Firstly, there is no documentary evidence before the Tribunal to show that by the time the application for the Skilled visa was made, or in the 12 months before then, the applicant and Mr Liu shared their finances or pooled their financial resources or shared liabilities. There is no evidence that they represented themselves to others as being in a relationship (the applicant told the Tribunal she did not mention Mr Liu to her parents but she did meet his uncle) or that they viewed their relationship as a long term one. There is no evidence that they shared the household or domestic chores. The applicant notes that the relationship could have been registered if they received proper advice but it is not in dispute that the relationship was not registered. The Tribunal is not satisfied the applicant and Mr Liu were in a de facto relationship. The evidence before the Tribunal does not support a claim that the applicant and Mr Liu were in a de facto relationship at the time the application for the visa was made. The Tribunal is of the view that, at best, the applicant and Mr Liu were boyfriend and girlfriend and not de facto partners within the meaning of the Act and the Regulations.

19. Secondly, the Tribunal is mindful that the applicant’s oral evidence to the Tribunal concerning the circumstances of the relationship and visa application is inconsistent with her written response to the NOICC. In her submission to the delegate dated 2 July 2021 the applicant stated she did have a relationship with Mr Liu and by the time she approached the migration agent in early 2016, the agent told her that she and Mr Liu already had a relationship for 12 months and therefore it was ok for him to be included in the visa application. That is, the applicant’s evidence in response to the NOICC is that she had known Mr Liu prior to approaching Kevin Chen while her evidence to the Tribunal is that she was introduced to Mr Liu by Kevin Chen. The applicant’s response to the NOICC is that the de facto relationship had been in existence for 12 months by the time she approached Kevin Chen while the applicant’s evidence to the Tribunal is that the relationship only commenced in early 2016. The applicant also told the Tribunal that she did not know on what basis Mr Liu was included in her application, particularly as she appears to concede that there was no de facto relationship between them but only a ‘boyfriend–girlfriend’ relationship, while in her response to the NOICC the applicant claims she was clearly informed by Kevin Chen that Mr Liu could be included in her application because they had been in a de facto relationship for 12 months. In her response to the NOICC the applicant expressly stated that she believed Mr Liu met the visa requirements as they had a de facto relationship for 12 months prior to the Skilled visa application while the applicant’s evidence to the Tribunal clearly indicates the relationship was not in existence for that period.

20. The applicant explained these inconsistencies by stating that her lawyer who prepared the response to the NOICC did so on the basis of the FOI records and only asked her ‘basic questions’. The Tribunal does not accept that explanation because the applicant’s relationship with Mr Liu was central to the intended cancellation of her visa, which was the very purpose of her submission, and the Tribunal does not accept that the applicant and her then representative would not have discussed the circumstances of that relationship. The Tribunal is mindful that the submission in response to the NOICC refers to the instructions from the applicant and while there is no separate statement from the applicant herself, the Tribunal does not accept that the lawyer would indicate that submission was prepared on instructions when no such instructions were received. The applicant submits that the inconsistencies between her response to the NOICC and her oral evidence are ‘minor’. The Tribunal does not consider this to be the case. The inconsistencies are outlined above and, importantly, in one submission the applicant claimed to have been in a de facto relationship with Mr Liu for 12 months by the time the Skilled visa application was made and in her oral evidence to the Tribunal she claims the relationship started only a few months before the application was made. In one claim the applicant states she was introduced to Mr Liu by the migration agent and in another she claims they met prior to meeting the agent. These inconsistencies are not minor in the Tribunal’s view.

21. The Tribunal is also mindful that the response to the NOICC contains a considerable degree of detail about the applicant’s relationship with Mr Liu, including its duration, her interactions with Kevin Chen about the visa eligibility based on the relationship and the reasons for breakdown (which would not have been available simply through the FOI request). Given the level of details about the relationship in the response to the NOICC, the Tribunal has formed the view that the applicant did have involvement in the preparation of that response, contrary to her evidence to the Tribunal.

22. Neither has the applicant ‘corrected’ the information if she believed the information in response to the NOICC was inaccurate or incorrect. The applicant did provide submissions to the Tribunal prior to the hearing and has had several months from the time her response to the NOICC was submitted to review the documents and correct any errors. In the Tribunal’s view, if the information in the NOICC about the applicant’s relationship with Mr Liu was incorrect or inaccurate, the applicant had the opportunity to correct the information prior to being questioned by the Tribunal. The inconsistencies in the applicant’s evidence bring into question the truthfulness of her answers and the applicant’s overall credibility.

23. The Tribunal has formed the view that the applicant is not a person of credibility and that she had provided inconsistent and untruthful information about the nature of her relationship with Mr Liu. In light of that finding, as well as the lack of evidence of the relationship as noted above, the Tribunal has formed the view that the applicant did not have a de facto relationship with Mr Liu by the time she made the application for the visa. While the NOICC does not refer to the breach of s 101 (and therefore, the Tribunal does not rely on this finding in determining if there are grounds for cancelling the visa), in the Tribunal’s view, it is relevant to the exercise of discretion.

24. The primary decision record indicates that the application included Mr Liu’s bank records and phone bills showing an address in Berala from 2014 or 2015. Both the applicant and Mr Liu confirmed that they did not meet each other before 2016. The Tribunal finds that the bank records and phone bills showing Mr Liu’s address at Berala are bogus documents as they were altered by a person without authority. The Tribunal finds that the bank statements and phone bills are bogus documents within the meaning of s 5(b) of the Act.

25. Both the applicant and Mr Liu claim they gave only genuine documents to the agent and were not aware of the content of the application and did not read the forms. The applicant submits that she had no access to the email address and did not think to (or could not) check the forms. The applicant suggests she is a victim of poor advice. The Tribunal does not accept that claim. The Tribunal is generally of the view that it is the responsibility of a visa applicant to check the content of a visa application. The Tribunal is mindful that not only did the application include Mr Liu’s bank records and phone bills (which the applicant suggests were created by Mr Chen) but the application form also referred to the existence of a de facto relationship from 2014. The Tribunal does not accept the applicant had no chance to check the content of the form. Further, the Act makes it clear that even if another person – such as a migration agent – completed the form on behalf of the applicant, the applicant is taken to have done so. That is, the Act makes it clear that the applicant is responsible for the content of her application, including the completion of the forms and the provision of supporting documentation.

26. The Tribunal has found that the bank records and phone bills are bogus documents. The Tribunal finds that the applicant gave, presented, produced or provided, to an officer or the Minister, bogus documents, or caused such documents to be given, presented, produced or provided. The Tribunal finds that the applicant did not comply with s 103 of the Act in the way described in the s 107 notice.

    Should the visa be cancelled?

27. 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).

28. 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

29. This is not relevant in the present case because the NOICC does not refer to a breach of s 101.

    The content of the genuine document (if any)

30. The genuine documents would not be addressed to Mr Liu at the Berala address from late 2014. The applicant told the Tribunal that although Mr Liu spent 4 days a week at her home, he did not change the address while Mr Liu told the Tribunal that he did change the address on his bank statements.

    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

31. The applicant claims that the decision to grant the visa was not based on the bogus documents because she met the points requirement. The Tribunal considers that assessment somewhat simplistic because the applicant would have been required to meet criteria other than the points test. In particular, the applicant would have been required to meet the requirements of public interest criteria (PIC) 4020 and if the delegate was aware that the applicant provided bogus bank and phone records, the delegate may have concluded that there was evidence that the applicant gave, or caused to be given, bogus documents in relation to her visa application and that would have necessitated the assessment of PIC 4020. Further, the Tribunal is of the view that if it was determined that the applicant made a false claim of being in a de facto relationship and that relationship did not exist, the applicant may have committed an offence under the Act and that may have been relevant to the assessment of the applicant’s character for the purpose of s 501.

1. The applicant’s representative submits that the agent acted unlawfully and did not provide proper advice to the applicant and Mr Liu. The representative submits that the de facto relationship could have been registered so that Mr Liu would have been considered as a de facto partner and been eligible for the visa. However, there is no evidence that the relationship was in fact registered (so that option was not open to the couple) and, for the reasons stated elsewhere, the Tribunal is not satisfied on the evidence before it that all the aspects of the de facto relationship were met when the application was made. That is, the Tribunal is not satisfied Mr Liu was a de facto partner of the applicant irrespective of the duration of their relationship.

2. The Tribunal accepts that if the applicant did not include Mr Liu in her visa application, she may have nevertheless been granted the visa. However, having included Mr Liu in the visa application, the inclusion of the secondary applicant was then relevant to the assessment of certain criteria such as PIC 4020 and s 501. The applicant submits that the visa may have been granted even if the provision of incorrect information and bogus documents was known but it is not necessary for the Tribunal to determine whether or not the visa would have been granted. It is sufficient that the decision to grant the visa was based, in part, on bogus documents.

   The circumstances in which the non-compliance occurred

3. The circumstances in which the non-compliance occurred are addressed above. The applicant submits, essentially, that she entrusted a migration agent to prepare her application and that she was unaware of the submission of the bogus documents. The applicant claims the agent had arranged an email address to which she had no access.

4. The applicant told the Tribunal that she and Mr Liu were dating when she made the application and she did not understand what a de facto relationship meant. She confirmed that she did not check the application form to see what claims were made about the relationship. As noted above, the Tribunal is of the view that it was the applicant’s responsibility to check the content of the application and the applicant claims she did not think to do that. The Tribunal is not satisfied the applicant had taken reasonable or adequate steps to ensure the application was correct.

   The present circumstances of the visa holder

5. In her response to the NOICC the applicant provided evidence concerning the operation of her business. The applicant claims that if she has to leave Australia, her business may have to be closed. The applicant told the Tribunal that she runs the business with her business partner and they provide a ‘personalised shopping experience’ for their clients and help import things from other countries. The applicant states that she and her business partner are very close and her partner would be affected financially and emotionally if she was to leave Australia and if the business were to close. The applicant’s business partner provided a reference letter to the Tribunal.

6. The applicant states that they have a shop in Australia and their customers are based in Australia and it is not possible to manage the business with just one person. The Tribunal is prepared to accept that the applicant plays a significant role in the business but the applicant has not satisfied the Tribunal that her role cannot be performed by others, should the applicant decide to leave the business if her visa is cancelled. It is also not apparent why certain functions in the business cannot continue to be performed by the applicant from another country (given the import / export nature of the business). The Tribunal accepts that the applicant may be unable to contribute to the operations of the shop in Australia if she is not resident in Australia, and also that there are other functions she performs – such as driving – that would require her physical presence here, but there are other aspects of her role, such as contact with suppliers and customers and movement of goods, that appear to be capable of being performed from another country.

7. The applicant submits that if she leaves the business, her partner cannot trust anyone else and if she were to sell her share in the business, it would take time and effort to train someone and in the meantime the business would suffer. Even if that is the case, the applicant has not satisfied the Tribunal that this cannot be done, even if in the immediate future it may cause financial and other difficulties to the business and the applicant and her business partner. That is, while the Tribunal accepts that the applicant’s departure from Australia will, to some extent, disrupt the operation of the business and will cause some degree of hardship to the applicant’s business partner and may cause financial losses at least in the immediate future, the Tribunal is not satisfied the applicant would be unable to continue some degree of involvement in the business, should she choose to maintain that connection, or that she would be unable to dispose of her share in the business.

8. The Tribunal is also mindful that the applicant provided minimal documentary evidence about the business operations, its financial records, the nature of her involvement, etc. In the absence of probative evidence as to the business operations, the value of the assets and the applicant’s general financial circumstances, the Tribunal is not satisfied that financial hardship would be caused to the applicant or her business partner if the applicant does not have direct involvement in the business or if she contributes to the business from another country (even assuming her involvement would be lessened).

9. The applicant refers to adopting a dog and states that her dog has separation anxiety and cannot survive without her. The applicant states that she only has a small property in Hong Kong and may not be able to bring the dog with her. The Tribunal is prepared to accept that evidence. The applicant states that if her visa is cancelled, her parents would be devastated. The Tribunal is prepared to accept that evidence.

10. The applicant states that she has never worked in Hong Kong. The Tribunal accepts that this is the case but the applicant has not satisfied the Tribunal that she would be unable to find gainful employment in Hong Kong. There is no evidence of the applicant seeking a job or being denied employment in Hong Kong. Nevertheless, the Tribunal accepts that certain hardship would be caused to the applicant due to having to seek employment and start afresh. The applicant states that she has only a very small apartment in Hong Kong where four people live. She states she wants to have a better life and a better future. The Tribunal acknowledges that the applicant has been living in Australia for a lengthy period, including the period before her permanent visa was granted, and that she is well settled in Australia. Overall, the Tribunal thus accepts that considerable hardship would be caused to the applicant if she is required to leave Australia as a result of her visa being cancelled.

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

11. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

12. The applicant’s evidence is that she did not have a de facto relationship with Mr Liu from 2014 and the Tribunal has formed the view that she did not have a de facto relationship with him. The applicant stated on the application form that they had been in a de facto relationship from 2014. The Tribunal has formed the view that this answer was incorrect and constitutes non-compliance with s 101 of the Act.

    The time that has elapsed since the non-compliance

13. The application for the visa was made in May 2016 and approximately five and a half years passed since the non-compliance. The Tribunal accepts it is a meaningful period.

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

14. The applicant stated in her response to the NOICC that she has been sentenced as a result of driving while unlicensed. The applicant presented a medical certificate in which her treating doctor expressed the view that due to the applicant’s disposition, she is unlikely to have knowingly breached the law. The Tribunal acknowledges that evidence, although the Tribunal is not convinced that a general practitioner is necessarily an expert in determining one’s willingness to comply with the law.

15. The applicant explained to the Tribunal that she was stopped by the police due to stopping at the ‘no stopping’ sign and the police checked her licence and realised that her licence was suspended. The applicant states that her licence was suspended because she was seen using a phone while driving but she did not receive any communication about the suspension. These events suggest that the applicant does not appear to have much regard for the road rules. The applicant states that these events occurred in 2018 and since that time she had completed a course and has not had any problems with her driving. The Tribunal accepts that evidence. There are no other known breaches of the law.

    Any contribution made by the holder to the community

16. The applicant provided evidence of having made charitable donations. The applicant told the Tribunal that she also helped the community during the pandemic and made donations. The applicant gave other examples of her contribution to various events, organisations and individuals. The Tribunal accepts that the applicant has contributed to the community.

17. 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

18. The visa held by Mr Liu would be subject to consequential cancellation. His circumstances are addressed elsewhere in this decision.

    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

19. There are no children who would be affected by the cancellation of the visa.

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

20. The applicant referred to the security situation in Hong Kong, stating that she would be unable to speak about anything and if she participates in any demonstrations or other activities, she may be arrested. The representative notes that the situation in Hong Kong has been recognised by the Australian government and those in Australia have been offered a pathway to obtain visas but the applicant does not qualify. The Tribunal finds the applicant’s evidence opportunistic. The applicant’s evidence is that in her 15 years of her residence in Australia she has not participated in any activities that may be considered to be of a nature that may bring her to adverse attention if done in Hong Kong. There is no evidence before the Tribunal – other than the applicant’s vague claims – that she has had any interest in any political or other activities that would bring her to the adverse attention of the authorities. The applicant claims she may become involved in such activities but the Tribunal does not accept the applicant has any interest in participating in such activities if she was to live in Hong Kong. The Tribunal has formed the view that the applicant has not been truthful in her evidence to the Tribunal concerning her intended participation in activities in Hong Kong. The Tribunal has formed the view that she has no interest in such activities and will not participate in any such activities.

21. The Tribunal is also mindful that the applicant has an option of seeking a protection visa if she genuinely believes she might be adversely affected upon return to Hong Kong. If it is determined that the applicant is owed protection, she may be granted such a visa. In such circumstances, the Tribunal finds that the cancellation of the visa would not result in the breach of Australia’s international obligations.

    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

22. If the applicants’ visas are cancelled, unless they are granted other visas, the applicants would be unlawful non-citizens. The Tribunal acknowledges that unless the applicants are granted other visas, they may be subject to detention and possible removal from Australia. There may be restrictions on their future travel and future visa applications as a consequence of the cancellations and the applicants may be subject to an exclusion period in relation to future visa applications. If the visas are cancelled, the applicants would lose certain entitlements they may have acquired as Australian permanent residents. There are no provisions in the Act which prevent the applicants from making valid visa applications without the Minister’s intervention, although there are restrictions on the types of visas the applicants could apply for onshore. Mr Liu will be unable to act as a sponsor for his parents if he is not the holder of an Australian visa.

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

23. In her submission to the Tribunal of 29 December 2021 the applicant provided a number of character references in relation to both applicants. The Tribunal accepts the evidence in these documents and accepts that those who provided the references believe the applicants to be good persons.

24. The applicant provided medical records in relation to Ms Luo (the second applicant’s aunt). The Tribunal accepts the professional opinion in these reports but is mindful that these make no reference to the care being provided to Ms Luo by either applicant. Nor is it evident from these records what other care may be available to Ms Luo. The applicant also presented medical records in relation to Ms Lu (the second applicant’s mother). Again, the Tribunal accepts the medical evidence but, again, there is little evidence of either applicant being involved in the treatment.

25. Mr Liu told the Tribunal that his aunt and uncle live in Australia and while the Tribunal accepts that he may have a close relationship with them, the Tribunal is also mindful that the applicant’s parents are in China. That is, the family unity principles would not be breached as a result of the cancellation.

26. Mr Liu describes a close relationship with his aunt and states that she is like a second mother to him. The Tribunal accepts that evidence. Mr Liu refers to his aunt’s health condition and states that he feels obliged to help her. When asked how he helps her, Mr Liu states that he drives her, brings her food and shares good things with her. The Tribunal is prepared to accept that Mr Liu provides some support to his aunt but he has not satisfied the Tribunal that adequate support would not be available to her from other sources, including family members or community or health organisations. The applicant also refers to the financial support he provides to his aunt but, again, he provided no documentary evidence of such support and, importantly, no evidence that hardship would be caused to the aunt if such support is withdrawn or diminished.

27. The applicant states that she has worked hard to establish a home in Australia and has planned her future in Australia and had no intention to return to Hong Kong. The applicant states that she planned to start a family and purchase a property in Australia. (She is not presently in a relationship.) The applicant states that her parents are elderly and are worried about her and she does not know how to face them. Mr Liu also spoke about the welfare of his parents. Both applicants have expressed remorse for their ‘mistakes’. The Tribunal acknowledges that evidence.

28. The applicant states that she has learned from her mistakes and is a good person. The applicant asked to be given another chance. The Tribunal acknowledges that evidence.

29. The Tribunal has also considered Mr Liu’s evidence. His evidence is that he wants Australia to be his home and he only returned to China once. Mr Liu states that he has freedoms in Australia that he would not have in China. The Tribunal accepts that evidence.

30. Mr Liu states that because of his tattoo it would be hard for him to find a job in China. However, Mr Liu presented no evidence to support that claim and the Tribunal does not accept Mr Liu’s claim without any supporting evidence.

31. Mr Liu states that his parents had given up everything to allow him to migrate to Australia and he wants to repay them. Mr Liu states that he has sponsored his mother for an Australian visa. His father cannot migrate at present due to his work commitments. The Tribunal accepts that Mr Liu and his family prefer for him to remain in Australia and that their hopes and aspirations would be broken if the visa is cancelled. The Tribunal also acknowledges that Mr Liu cannot sponsor his parents if he is not a holder of an Australian visa. Generally, the Tribunal accepts that some hardship would be caused to Mr Liu and his family by the cancellation of the visa.

32. The Tribunal has considered the totality of the applicants’ circumstances. The Tribunal has found that they had provided bogus documents with the visa application and that there was non-compliance with s 103 of the Act. The Tribunal has formed the view that there are grounds for cancelling the visa.

33. The Tribunal accepts that considerable hardship would be caused to both applicants by the cancellation. The Tribunal acknowledges that both applicants have been living in Australia for many years and are settled in this country. They have formed social, business, financial and other ties and have every intention of living in Australia and not returning to their home countries. The Tribunal accepts that they would have limited opportunities for future visa options and that the cancellation of the visas may adversely affect their future visa options. The Tribunal also accepts that the applicant’s business and business partner may be adversely affected by the cancellation, although the Tribunal has formed the view that the applicant’s evidence on that issue has been exaggerated and, for the reasons stated above, the applicant has not satisfied the Tribunal that it would not be possible for her to have some involvement in the operation of the business irrespective of her country of residence, nor that alternative arrangements have been explored in relation to the business (such as the sale of the applicant’s share).

34. The Tribunal also accepts that Mr Liu has familial connections in Australia and that both the applicant’s and Mr Liu’s parents would prefer for the applicants to remain in Australia. The Tribunal accepts their evidence that their respective parents have spent considerable resources to enable both applicants to study and live in Australia.

35. The applicant’s representative submits that if the agent had acted honestly, “none of this would have happened”. The Tribunal does not accept that the fault lies entirely with the agent. Even if the agent did create the bogus documents, it was the applicants who were responsible for the content of the form and the application form clearly contained incorrect information about the duration of the relationship. In the Tribunal’s view, it was the applicants’ responsibility to check the content of the application form and they failed to do so. While the applicant submits that they “did not have a chance” to check the application since an incorrect email address was used, the Tribunal does not accept that was so. The evidence indicates there was an agency relationship between the applicants and Mr Kevin Chen, some payment was made for his services and the applicant instructed him to make the application for the Skilled visa and engaged in the process by providing the requested documents. The Tribunal does not accept that the applicants had no opportunity to check the content of the application forms if they wished to do so.

1. It is highly significant, in the Tribunal’s view, the de facto relationship did not exist for the 12 months before the application was made (or since 2014 as was claimed in the application) and therefore, Mr Liu was not entitled to the visa. Contrary to the representative’s submission that there were other alternatives such as the registration of the relationship, there is nothing to suggest that the applicants did register the relationship and they could not have relied on that alternative. It is also significant that, for the reasons stated above, the Tribunal has formed the view that there was not a de facto relationship between the applicant and Mr Liu. Rather, it appears the two were introduced to each other by their migration agent in order to facilitate the visa process. Their claimed relationship ended soon after the visas were granted and lasted a little longer than the visa process. As the Tribunal has formed the view that there was never a de facto relationship between the applicant and Mr Liu, the Tribunal has formed the view that Mr Liu was never entitled to the Skilled visa as a secondary applicant. There is nothing to suggest he met the primary criteria for visa grant. In the Tribunal’s view, that consideration alone outweighs other considerations that may be against the cancellation.

2. The applicant submits that she could have been granted the visa anyway as she was able to obtain the required points score and that may have been the case but it is significant, in the Tribunal’s view, that the decision to grant the visa to the applicant was based, in part, on incorrect information because she did include Mr Liu as her de facto partner. A different assessment of PIC 4020 would have been undertaken if it was known that the application contained bogus documents. These factors also weigh in favour of the cancellation.

3. The Tribunal acknowledges that there are several factors that are against the cancellation. Most notably, the hardship that would be caused to the applicants and others if their visas are cancelled, and the loss of opportunities that the cancellation would cause. The Tribunal acknowledges the applicant’s contribution to the community and the parties’ expression of remorse (which appears to have only been made after the possibility of the visa cancellation). The Tribunal has formed the view that the cancellation would not result in a breach of Australia’s international obligations and that there are no children affected by the cancellation.

4. Overall, the Tribunal has decided to place greatest weight on the fact that the couple were never in a de facto relationship and therefore that the application contained false information about that relationship. Whether or not they were cognisant of precise details, the Tribunal is of the view that both the applicant and Mr Liu were aware that Mr Liu was included in the application because of his relationship with the applicant and thus, the Tribunal is of the view that the couple were aware, or should have been aware, that his application was made on the basis of false claims. The Tribunal has formed the view that the applicants did not take adequate (or any) steps to ensure the information in the application was correct and that they were indifferent about the accuracy and veracity of their claims. The Tribunal also places weight on the fact that the decision to grant the visas was based on incorrect information. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the applicant’s visa should be cancelled.

   DECISION

5. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 189  (Skilled) Independent visa.

6. The Tribunal has no jurisdiction with respect to the other applicant.

   Kira Raif
   Senior Member