Song (Migration)

[2022] AATA 107

Song (Migration) [2022] AATA 107 (11 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sijia Song

CASE NUMBER:  2111619

HOME AFFAIRS REFERENCE(S):          BCC2021/1428152

MEMBER:Kira Raif

DATE:11 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2022 at 4:04pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – incorrect answers and bogus documents given in visa application – secondary application as claimed de facto partner of primary applicant – bank statements, rental agreements and personal statements – forensic examination – discretion to cancel visa – application prepared by agent – applicant’s willing engagement in fraud instead of pursuing other options – current genuine relationship with permanent resident – partner’s mental health, family and financial responsibilities and applicant’s work, social ties and community activities – possibility of applying for partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(b), (c), 98, 101, 103, 107(1), 109(1)
Migration Regulations 1994 (Cth), r 2.41

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of China, born in August 1990. She was granted the Skilled visa in November 2016. In July 2021 the applicant was issued with the Notice if Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s. 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Mr Shang. 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 by her 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

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

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

   Did the Notice comply with the requirements in s.107? 

6. 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.

7. 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?

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled visa on 1 July 2016 on the basis of meeting the secondary criteria. The applicant claimed to be a de facto partner and a member of the family unit of Mr Shi Bo Wang. The applicant stated in her application that she met Mr Wang in April 2014 and they commenced cohabitation as a de facto couple on 21 March 2015. The application form contains the applicant’s personal details and states that the couple resided at Rhodes, NSW.

10. The applicants also completed a declaration that they have read and understood the information in the form and that the information was complete and correct in every detail.

11. The applicant included a number of documents as evidence of her relationship with Mr Wang. These included

    a.several bank statements from Commonwealth bank in the applicant’s name addressed to the Rhodes address and other statements addressed to addresses at Epping and Forest Lodge,

    b.a relationship statement,

    c.rental agreements for the Epping and Forest Lodge addresses for the period from March 2015 to August 2016,

    d.a statement purportedly prepared by the applicant’s mother Ms Jia Lin. The statement is undated and unsigned.

12. The applicant and Mr Wang were granted the Skilled visas on 10 November 2016. The primary decision record indicates that following the grant of the visas, a forensic examination of the above documents established that the residential addresses shown on the Commonwealth bank statements did not match the residential addresses officially linked and registered to those documents. The delegate concluded that the bank statements were bogus documents.

13. In her response to the NOICC the applicant claims that she was misled by a person who claimed to be a migration agent (although there was no evidence of his registration with OMARA) and who charged her a significant fee while behaving unethically and unprofessionally. The applicant submits that the agent incorrectly advised her that there would be no adverse repercussions if her visa application was refused. The applicant explained that she was introduced to the agent, Mr Chen, by a friend and was told that there was a person who would permit her to be added to his visa application and that this was common. The applicant states that she had limited knowledge of the law but heard positive feedback about the agent from friends. The applicant stated that she provided the agent with genuine documents and the fee and signed a contract. She met Mr Wang once but did not have any information about him.

14. In oral evidence, the applicant confirmed that she met Mr Wang through her migration agent. She states that she was about to graduate with a Masters degree and wanted to stay in Australia and she was introduced to a migration agent and she totally trusted the agent. The applicant claims that she was given misleading information by the agent as the agent told her the only way she could get the permanent visa was to apply as a secondary applicant in a skilled visa and that he had done that many times. The agent told her that if her application was unsuccessful, there would be no risk and no negative repercussions. The applicant states that she paid over $120,000 to the agent because she wanted to save time in getting the visa and met Mr Wang to take some photographs.

15. The applicant’s evidence confirms that she did not have a relationship with Mr Wang and, importantly, the applicant also confirms that the Commonwealth bank records showing the Rhodes address were not issued to that address. The Tribunal finds that these documents had been altered by a person without authority and that they are therefore bogus documents. The Tribunal acknowledges the applicant’s evidence that she did not prepare these documents which were prepared by her ‘agent’ Mr Chen. However, under s. 98 of the Act, the application forms is taken to be completed by the applicant even it was completed by another person.

16. The Tribunal finds that the Commonwealth bank records and the residential agreement are bogus documents within the meaning of s. 5(b) of the Act because they had been altered by a person with no authority to do so. The Tribunal further finds that the relationship statement by the applicant and her mother and bogus documents within the meaning of s.5(c).

17. The Tribunal finds that the applicant gave, presented or provided to an officer or the Minister, bogus documents, or caused such documents to be so given, presented or provided. The Tribunal finds that there was non-compliance with s. 103 of the Act in the way described in the NOICC.

    Should the visa be cancelled?

18. 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).

19. 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 r.2.41 of the Regulations. They are:

    The correct information

20. The applicant confirms in her evidence that she did not have a de facto relationship with Mr Wang and was not a member of his family unit when making the application for the visa.

    The content of the genuine document (if any)

21. The genuine documents would not show that the applicant and Mr Wang resided together or had established a joint household. The genuine documents would not evidence a de facto relationship between the applicant and Mr Wang.

    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

22. The applicant made the application as a secondary applicant and there is nothing before the Tribunal to suggest that she relied on meeting the primary criteria for visa grant. That is, the applicant’s relationship with the primary visa applicant was central to her eligibility for the visa and if it was known to the decision-maker that the applicant was not a partner or de facto partner of the primary visa applicant (and there is nothing to indicate that the applicant met the alternative criteria of the definition of ‘member of the family unit’), it appears unlikely that the applicant would have been granted the visa.

23. The applicant told the Tribunal that at the time she made the application, she could have been sponsored by her employer or she could have applied for the visa in her own right on the basis of her Australian study and if she was not misled by the agent, she had other options. The Tribunal acknowledges that the applicant may have had other options in seeking the visa but she did not pursue those options. Instead, the applicant chose to apply for the Skilled visa on the basis of false claims because the agent told her it would be the quickest way of gaining the visa and she thought her time was important. She thus decided to pay over AUD120,000 to obtain the visa on the basis of a false claim. In the Tribunal’s view, what is relevant here is not what options the applicant had at the time she made the application but what she actually did. The Tribunal finds that the decision to grant the visa was based on the incorrect information (the applicant’s claimed relationship with the primary visa applicant) and the bogus documents evidencing that relationship.

    The circumstances in which the non-compliance occurred

24. These are outlined above. Essentially, the applicant submits that she was misled by an unscrupulous agent who falsified the documents without her knowledge. The applicant claims that she trusted the agent who behaved unethically and she had relied on that agent as she did not understand the law. The Tribunal finds these claims entirely unpersuasive.

25. The applicant’s explanation in her response to the NOICC and evidence to the Tribunal is that she was informed by the agent it was only possible for her to get the visa if she was added to another person’s application as a de facto partner, which was common practice. The applicant states that she only provided genuine documents to the agent and did not see the documents he prepared. However, the applicant also concedes that the documents she submitted to the agent were not sufficient and she would have realised something was ”not right”, particularly given the substantial amount she had paid to the agent (exceeding $125,000). The applicant does not claim she met the primary criteria for visa grant and she seems to have been well aware that she was making the application as a partner of Mr Wang. She was also well aware that she was not a partner of Mr Wang. The applicant’s evidence is that she met Mr Wang once to take some photographs so the applicant would have been under no misapprehension about the absence of a de facto or any other relationship between her and the primary visa applicant. Yet, the applicant’s evidence is that she instructed Mr Chen to lodge an application on the basis of being included in Mr Wang’s application as his de facto partner.

26. The Tribunal finds that the applicant well understood that she would be included in the application made by another person as his partner and that she was not seeking the visa on her own. That  is, the applicant had a general understanding of what the agent was preparing. The applicant would have also understood that the very basis of her claims was false because she was not a partner of Mr Wang. The applicant authorised the agent to proceed with the application, and was prepared to pay a substantial sum to produce the false claims. Even if the was not aware of every detail on the form or of every document that was submitted with the application, she was fully aware of the basis of her application and its falsity. The Tribunal finds that the applicant was aware of the fraud and had authorised it.

27. The applicant claims that she was not familiar with the Australian laws and she was young and naïve and knew nothing about the visas. The Tribunal rejects these explanations because the Tribunal does not consider that any knowledge of the law is necessary for the applicant to have understood that she was relying on the existence of a relationship that did not exist in seeking the visa. The applicant’s evidence to the Tribunal is that the agent explained to her the basis on which the application was being made and she was well aware that basis did not exist. She also claims she met the primary applicant in order to take social photographs, to support the claimed relationship. In the Tribunal’s view, the clear fraud involved in the application would have been obvious to the applicant irrespective of her knowledge or understanding of the law. The applicant engaged in it willingly and with a full understanding of what was being submitted on her behalf. She had also willingly engaged in the fraud by taking positive steps to falsify the evidence (by taking photographs). The applicant also suggests it was a common occurrence. In the Tribunal’s view, the fact that many others chose to breach the law and provide untruthful information to the Department when seeking visas does not justify the applicant’s engagement in the same conduct.

28. The applicant expressed her remorse and regret for the mistake she has made. However, she also claims it was the agent who had acted unethically and she blames her reliance on the agent whom she trusted. The applicant’s reference to the unethical agent might suggest that the applicant has little insight into her own conduct (ie knowingly claiming to be in a relationship which did not exist) as she believed the fault lies with another person. The Tribunal is also mindful that the expression of remorse has only occurred when the applicant was issued with the NOICC. There is nothing before the Tribunal to indicated that in the five years between the application being made and the NOICC being issued, the applicant had made contact with the Department to notify of the incorrect information or to correct the record about her relationship and the applicant explained to the Tribunal that she did not want to lose her visa. The applicant appears to have been content to rely on the incorrect information to obtain the visa and to maintain that visa. The Tribunal has formed the view that  in such circumstances, the applicant’s expression of remorse is opportunistic.

29. The Tribunal finds that the applicant breached the Migration Act intentionally and willingly and did so knowingly.

    The present circumstances of the visa holder

30. In her response to the NOICC the applicant states that she travelled to Australia in April 2013, completed her study in Australia and engaged in employment. In her response to the NOICC and oral evidence to the Tribunal the applicant outlined the nature of her employment and the contribution she has made to her employer. The applicant states that she is well regarded by her colleagues. The Tribunal accepts that evidence and accepts that the applicant has stable employment, is involved in various activities for, or with the support of, her employer and is well regarded by her employer (who provided a reference) and colleagues. The Tribunal also accepts that the applicant has settled in Australia during the lengthy period of her residence here. The Tribunal acknowledges the various supporting statements.

31. The applicant refers to her relationship with an Australia permanent resident from April 2019 and outlined the nature of that relationship and the activities she and her partner had undertaken. In her evidence to the Tribunal the applicant provided evidence of providing financial support to her partner, as well as other evidence of the relationship, including a statement from her partner’s mother and photographic evidence. The applicant refers to their intention to get married and have a child but claims they delayed their plans due to the pandemic. The Tribunal accepts, for the purpose of this review, that the applicant is in a relationship with an Australian permanent resident.

32. The applicant told the Tribunal that her partner used to have suicidal tendencies before they met and now that her visa has been cancelled, he suffers from depression. Mr Shang’s evidence to the Tribunal is that he had a bad relationship breakdown in the past and had suffered from depression and was placed on a mental health plan. This was irrespective of the visa issue. However, both the applicant and Mr Shang confirmed that he is not presently seeking professional health advice and support and there is no current medical evidence before the Tribunal to support the claim that Mr Shang suffers from depression. The Tribunal does not consider the applicant to be qualified to make that diagnosis. The applicant told the Tribunal that the cancellation of her visa is the only issue causing Mr Shang to be depressed and she claims that if her visa is reinstated, his condition would improve. Mr Shang confirmed that he had not sought professional help or advice with respect to his depression, citing difficulties in finding a health professional due to Covid. In the absence of any professional opinion or diagnosis or advice concerning the partner’s situation and the fact that Mr Shang has not seen a health professional to seek that diagnosis, nor to seek treatment, the Tribunal does not accept that the applicant’s partner suffers from depression, nor that his condition would be adversely affected by the cancellation of the applicant’s visa.

1. The applicant refers to her partner’s family and financial responsibilities (elderly parents and two children) and she claims if her visa is cancelled and she loses her job, this would affect her partner financially. There is little evidence before the Tribunal concerning her partner’s financial situation, income and expenses and while the Tribunal accepts that the applicant provides financial support to her partner (evidence of which she presented to the Tribunal) and on the limited evidence before it, the Tribunal does not accept that the withdrawal of the applicant’s financial support (should the applicant decide to leave Australia) would cause significant financial hardship to her partner. Nevertheless, the Tribunal accepts that if the cancellation of the visa will result in the applicant’s loss of employment, this is likely to affect the couple’s financial situation and may cause some hardship to them. The Tribunal also accepts that the applicant has provided significant settlement support to Mr Shang’s parents and accepts that if the cancellation of her visa will result in the applicant’s departure from Australia, Mr Shang’s parents may also be adversely affected.  

2. Overall, the Tribunal accepts that certain hardship may be caused to the applicant, her partner and his parents if the applicant is required to leave Australia as a result of her visa being cancelled. The Tribunal also accepts that  if Mr Shang is to depart Australia as a result of the cancellation, this may also affect his children. However, the Tribunal is also mindful that the cancellation of the visa need not equate with the removal of the applicant from Australia. In this particular case, the existence of the applicant’s relationship with Mr Wang may enable the applicant to seek a Partner visa in the future, either onshore or offshore. While there can be no certainty of the visa grant, it is significant, in the Tribunal’s view, that the applicant has an option of obtaining an Australian visa on truthful grounds.

3. The applicant has outlined to her financial circumstances. She claims she lives in a property purchased in her mother’s name and they bought a car. She provided financial records to the Tribunal to evidence the financial support she provides to her partner. The Tribunal accepts the applicant has significant financial ties to Australia. The applicant also refers to having formed strong social ties in Australia and she provided several statements from third parties. The Tribunal accepts that the applicant has considerable social ties in Australia.  

4. The applicant refers to the presence of her pets and states that she cannot live without them and if she takes them to China, she might not be able to bring them to Australia. The Tribunal accepts that evidence. The applicant refers to her social links to Australia, her participation in various community and charity activities. The Tribunal accepts that evidence.

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

5. 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

6. The applicant claimed in the application that she was the de facto partner of the primary applicant. The applicant concedes that there was no de facto relationship between them. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

   The time that has elapsed since the non-compliance

7. The application was made in July 2016. Approximately five and a half years passed since the non-compliance.

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

8. There are no known breaches of the law (although the Tribunal is mindful that it is an offence under s.243 of the Migration Act to falsely claim to be in a relationship for visa purposes). There is nothing before the Tribunal to indicate that the applicant has been convicted of any offence.

   Any contribution made by the holder to the community.

9. The applicant refers to the contribution through employment and her participation in various events and activities. The applicant provided to the Tribunal evidence of her participation in a voluntary program and other charitable and social activities and donations. The Tribunal accepts the applicant has made a contribution to the community.

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

    Whether there would be consequential cancellations under s.140.

11. There are no persons whose visas would be subject to consequential cancellation.

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

12. The applicant told the Tribunal that her partner has two children who are minor and are Australian citizens. The applicant states that if her visa is cancelled and if she and her partner decide to return to China, this would affect her partner and his children as they would  not be able to see each other for some time. The Tribunal finds that evidence problematic because the Tribunal does not accept that the applicant and her partner intend to return to China for a lengthy period if the applicant’s visa is cancelled. The applicant’s evidence is that they have not made a final decision whether she would apply for a Partner visa onshore or return to China due to financial hardship if she loses her job.  The Tribunal accepts that if the applicant’s visa is cancelled and if the applicant and her partner return to China, this may result in his separation from his children but the Tribunal considers there is very little likelihood of Mr Shang returning to China for a lengthy period. In such circumstances the Tribunal does not consider that the best interests of any children would be adversely affected by the cancellation of the applicant’s visa.

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

13. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant’s partner is in Australia, her parents are in China. The Tribunal does not consider that the principles of the family unity would be breached as a result of the cancellation, given the applicant’s eligibility to seek other Australia visas in the future.

    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.

14. If the applicant’s visa is cancelled, and if she is not granted another visa, the applicant may become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion that the applicant would face indefinite detention. The applicant will be able to apply for other visas onshore without Ministerial intervention but there are limited types of visas she may validly apply for onshore. If the applicant was to make an application for a visa offshore, she may be subject to an exclusion period in relation to some types of visas. If the visa is cancelled, the applicant would lose some of the entitlements she had acquired as a permanent resident of Australia, including the ability to sponsor her parents for the visas.

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

15. In her response to the NOICC and evidence to the Tribunal the applicant refers to the hardship she would experience if she was required to leave Australia and return to China. The applicant refers to having limited contacts and relationships in China. She claims she may not be able to find appropriate employment in China and would find it difficult to re-establish herself. While the Tribunal considers much of the applicant’s evidence exaggerated (for example, she spoke of extensive knowledge of the Chinese market and her work with the Chinese clients and her employment for a Chinese-based HSBC), the Tribunal accepts that, given the length of the applicant’s stay in Australia and her connections to this country, the applicant’s return to China may cause her and others considerable hardship. In particular, the Tribunal accepts, for the purpose of this review, that the applicant is presently in a relationship with an Australian permanent resident, that she provides some financial support to her partner and has also helped his parents since their recent migration to Australia. The Tribunal accepts these claims that accept that if the cancellation of the applicant’s visa was to lead to her departure from Australia, these relationships may be affected and the applicant’s ties to Australia may be severed, at least in the immediate future. That is, the Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant and others. However, as noted above, the applicant’s relationship with an Australian permanent resident gives her the opportunity to apply for a Partner visa, either onshore or offshore. The Tribunal acknowledges that any such application would result in considerable costs and delay and that there can be no certainty of the visa grant. However, the Tribunal considers that it would be beneficial for the applicant to be assessed against the visa criteria on the basis of truthful information.

16. The applicant states that her parents had spent all their saving to support her in Australia and she planned to bring them to Australia and if her visa is cancelled, it would delay their migration to Australia. The Tribunal acknowledges that the cancellation of the applicant’s visa (and the time it may take for her to regain permanent residence) may significantly delay the applicant’s ability to sponsor her parents for the Australian visas. The applicant also states that if she applies for a partner visa onshore, she would not be able to travel and visit her parents and elderly grandparents in China. The Tribunal accepts that the applicant may be unable to be granted a Bridging B visa and may need to wait for the grant of a substantive visa before she can travel overseas.

17. Mr Shang states that if the applicant’s visa is cancelled and she loses her job as a result, they might decide to return to China together and this would cause significant hardship to them because it would affect his family relationships in Australia and his stable employment and affect them financially. As noted above, the Tribunal does not consider that the cancellation of the visa will necessarily result in the applicant having to depart Australia and the applicant has not satisfied the Tribunal that the cancellation of her visa would result in her losing her job. The applicant states that her employer only employs permanent residents or Australian citizens but also that she has been able to continue working after the cancellation despite holding a bridging visa as she has a good relationship with her manager. The applicant suggested that she could work on a bridging visa on a short term basis but not for a number of years but these claims are not supported by evidence from her employer (who has so far permitted the applicant to continue to work on a Bridging visa for multiple months). Thus, the applicant’s loss of employment is far from certain. Nevertheless, the Tribunal accepts, as noted above, that the cancellation of the applicant’s visa has the potential of causing significant hardship not only to the applicant but also to her partner, his parents (who claim to rely on the applicant for various forms of support), her employer and others.

18. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 103 and that there are grounds for cancelling her visa. The Tribunal has also found that there was another instance of non-compliance as the applicant had completed her application form in a way that incorrect answers were given or provided, in breach of s. 101 of the Act.

19. The Tribunal accepts that if the cancellation of the visa is to result in the applicant’s departure from Australia, it may cause her and others considerable hardship. In particular, the Tribunal accepts that the applicant has been residing in Australia for a lengthy period and has formed strong social, financial, employment, family and other ties to Australia. The Tribunal accepts, therefore, that considerable hardship would be caused to the applicant, her parents and her partner’s parents, potentially her employer and possibly others, if the applicant was to leave Australia and if Mr Shang decides to travel to China as well.

20. The Tribunal places some weight on the fact that the applicant is able to seek a Partner visa onshore, so that the cancellation of the Skilled visa need not result in the applicant being required to leave Australia, and even if the applicant was to make that application offshore, if her relationship is genuine, she will have an opportunity to return to Australia in the future, even if the processing of the application takes some years. The Tribunal considers that these circumstances would to some degree alleviate the hardship that would be caused by the cancellation. Nevertheless, the Tribunal acknowledges that the applicant and others would experience significant hardship as a result of the cancellation, as it would substantially delay her becoming a permanent resident of Australia again and delay other plans including marriage and having children and forming various ties in Australia.

21. The Tribunal acknowledges that the applicant has contributed to the community through various activities and engagements. Generally, the Tribunal accepts that there are factors that are against the cancellation.

22. The Tribunal has formed the view that the cancellation of the visa would not lead to a breach of Australia’s international obligations and would not adversely affect the best interests of any children.

23. In the circumstances of this case, the Tribunal has decided to place greatest weight on the circumstances in which the non-compliance occurred. The Tribunal has found that the applicant was well aware of the basis on which she was seeking the visa and that the claimed relationship with the primary visa applicant did not exist. While the applicant claims she was misled by the agent, the Tribunal has found that the applicant was well aware of the intended fraud and had authorised it. She may have been misled about the repercussions (if the agent told her there would be no consequences) but she was under no misapprehension about the fraudulent basis on which her application was made. That is, the applicant was cognisant of, and fully involved in the fraud and engaged in it willingly. The Tribunal considers it highly significant that the visa was granted on the basis of the falsely claimed relationship between the applicant and Mr Wang. The applicant does not claim she met the primary criteria for the visa grant and it is highly likely that the applicant would not have been granted the Skilled visa if it was known to the decision-maker that the applicant was not the de facto partner of Mr Wang. While the applicant claims she may have had other options, she did not pursue such options, preferring instead to get the visa quicker on fraudulent basis. All the benefits that flow from the applicant’s residence in Australia – including the degree of her settlement in this country – arise because of the initial fraud on which the visa grant was based.

24. The Tribunal has decided that such circumstances should be given greater weight and outweigh other factors that are against the cancellation.

25. 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

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

    Kira Raif
    Senior Member