Sun (Migration)

[2021] AATA 4396

Sun (Migration) [2021] AATA 4396 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yitian Sun

CASE NUMBER:  2109987

HOME AFFAIRS REFERENCE(S):          BCC2019/3330425

MEMBER:Kira Raif

DATE:8 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

Statement made on 08 November 2021 at 3:47pm

CATCHWORDS
MIGRATION – Skilled Nomination – Permanent (Class SN) visa – Subclass 190 (Skilled – Nominated) – bogus documents provided with visa application – bank statements and mobile phone bills provided as evidence of de facto relationship – different address provided in partner visa application – boyfriend rather than de facto partner, not living together, and applicant never lived at that address – documents prepared by agent – expression of interest successful even without partner points – discretion to cancel visa – hardship if visa cancelled – applicant holds bridging visa in relation to application for partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 103, 107(1), 109
Migration Regulations 1994 (Cth), r 2.41

CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in April 1992. She was issued with the Notice of Intention to Consider Cancellation (NOICC) in July 2021 as the delegate formed the view that the applicant did not comply with s 103 of the Act. It appears that the applicant did not respond to the NOICC and her visa was cancelled in August 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Mr Liu. 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 in the following respects.

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled – Nominated visa in Subclass 190. The applicant included Mr Jiaren Han as her de facto partner. The applicant stated on the form that Mr Han was her de facto partner and a migrating family member. The applicant signed a declaration that the information provided on the form and in any attachment was complete and correct in every detail. 

10. The applicant included with the application evidence of her relationship with Mr Han, which included Vodaphone bills in the names of the applicant and Mr Han, addressed to an address at Rhodes, and bank statements issued by Commonwealth bank for the period from July 2015 to December 2015 in the names of the applicant and of Mr Han, also addressed to the address at Rhodes. The applicants were granted the visas on 12 September 2017.

11. The primary decision record indicates that following the grant of the visas, a forensic examination undertaken by the Department showed that the bank statements and the phone bills did not match the residential addresses officially linked and registered to those documents. The primary decision record also indicates that since the NOICC was issued, the applicant has made an application for a Partner visa and has recorded her address at Kingsford between January 2015 and January 2018, which also contradicts the claims made in the Skilled visa application that the applicant had resided at Rhodes from August 2015 until September 2017. The delegate concluded that these documents were bogus documents.

12. In her submission to the Tribunal of 1 November 2021 the applicant (through her representative) states that the delegate did not consider the mandatory considerations under r. 2.41. The Tribunal is of the view that this claim is entirely incorrect as the primary decision record indicates that the discretionary considerations had been taken into account when the decision was reached, even if there was limited evidence concerning the applicant’s circumstances before the delegate. The representative submission is that the applicant was delayed in obtaining the documents and the delegate failed to give her a ‘second chance’. The Tribunal is mindful that  the applicant was invited to provide evidence of her circumstances, including in relation to all the discretionary considerations as part of the NOICC and it was up to the applicant to provide whatever evidence she wished the delegate to consider. The applicant submits that she could not reach her agent and did not have the supporting documents, resulting in a delay in her response, but the Tribunal is mindful that the applicant would have been able to explain her circumstances and provide whatever information was available to her and which she wished the delegate to consider, even if her submissions may have been incomplete. The delegate was under no obligation to wait until the applicant determined she was ready to submit the evidence. The Tribunal does not accept (to the extent this is the applicant’s submission) that the primary decision is invalid because the delegate failed to consider the applicant’s circumstances. Further, whatever errors may have been present in the primary decision (and the applicant has not satisfied the Tribunal as to their existence), the Tribunal conducts a review de novo and will consider the applicant’s circumstances afresh.

13. The applicant appears to concede in her written submission to the Tribunal that the Vodafone bills were bogus documents because the address on these documents had been altered or ‘manipulated’. In her oral evidence the applicant admits that the phone bills and bank records are bogus documents and confirms that she never lived at the Rhodes address. The applicant states that she did not manipulate the documents herself and she did not know what the agent did.

14. The applicant told the Tribunal that she was dating Mr Han and they had some relationship but not a de facto one and they did not live together. The applicant subsequently told the Tribunal that she did have a de facto relationship. However, she states that they did not live together because she did not believe in living with someone she was not married to. She states that she introduced Mr Han to others as a boyfriend and not as a partner and she did not believe there was a difference. She could not recall whether they had a joint account and states that they shared money when they went out and paid for food but had no other sharing of resources. The applicant states that she could not tell how long the relationship would last. On the evidence before it, the Tribunal is not satisfied the couple lived together or not apart on a permanent basis and that the applicant and Mr Han had established a joint household. The Tribunal is not satisfied there was any sharing of financial resources. The Tribunal is not satisfied they represented themselves to others as being in a relationship. The Tribunal is not satisfied they viewed their relationship as a long term one. The Tribunal is not satisfied they relied on each other for emotional support. The Tribunal finds that the applicant did not have a de facto relationship with Mr Han, even if there was some sort of relationship between them. The applicant concedes in her oral evidence to the Tribunal that her relationship with Mr Han was of different nature to her relationship with her present partner (which started as a de facto relationship before the couple were able to register their marriage). The Tribunal has formed the view that the applicant did not have a de facto relationship with Mr Han. The Tribunal finds that the applicant was aware of his inclusion in her Skilled visa application as a de facto partner. The Tribunal does not rely on any breach of s. 101, which was not specified in the NOICC.

15. The applicant’s evidence to the Tribunal confirms that she never lived at the Rhodes address. Having regard to the information in the primary decision record, as well as the applicant’s evidence to the Tribunal, the Tribunal finds that the Vodaphone phone bills and Commonwealth bank records addressed to the Rhodes address are bogus documents because they had been altered by a person without authority. The Tribunal finds that the applicant gave, produced or provided bogus documents to the Minister or an officer, or caused such documents to be given, produced or provided. The Tribunal acknowledges the applicant’s evidence that she was not involved and the documents were prepared by an agent, however, the applicant also concedes that she was aware of Mr Han’s inclusion in her visa application and that  she did not check the content of her application. in the Tribunal’s view, the applicant was aware of the fraud and indifferent as to the actions of the agent. The Act makes it clear that if another person assists the applicant with the form, the applicant is taken to have completed the application form.

16. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

17. 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).

18. 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

19. The NOICC does not refer to the non-compliance with s. 101.

    The content of the genuine document (if any)

20. The genuine documents would not be addressed to the Rhodes address that was shown on the presented documents and, therefore, would not show the applicant’s cohabitation with Mr Han. The applicant concedes that she had never lived at the Rhodes address.

    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

21. In her submission to the Tribunal the applicant states that she had made a successful EOI in 2016 and had obtained sufficient points to apply for the Skilled visa. She states that the phone bills were altered to facilitate the visa for the dependent applicant while she did not claim additional points from the dependent applicant for the EOI and there was no difference to her whether the dependent applicant was included in the application. The applicant notes that this has been accepted by the delegate. The Tribunal accepts that the applicant did not require the additional partner points to achieve the pass mark or the points specified in the EOI. However, the allocation of points is not the only criterion of the grant of the Skilled visa. The Tribunal is mindful that the applicant would have been required to meet PIC 4020 and in this case, the Tribunal found that there is evidence that the applicant gave bogus documents and false or misleading information with her visa application. If this information was known to the delegate, that would have been relevant to whether the applicant met PIC 4020.

    The circumstances in which the non-compliance occurred

22. In her evidence to the Tribunal the applicant explains that when she was preparing her Skilled visa application, she was approached by an agent, who persuaded her to include a dependent in her visa application. The applicant claims that the agent told her there was no risk involved. The applicant states that they did not live together and she was not aware of the consequences. She thought she was helping an international student to have a chance to live in Australia without any consequences. The applicant stated that when her visa was granted, she realised that another email address was used.

23. The applicant told the Tribunal that even though she was dating Mr Han, they did not live together and the agent told them they did not have to live together to be in a de facto relationship. (The Tribunal acknowledges that  is the case but for the reasons stated above, has formed the view that the other indicia of a de facto relationship were also absent.) The applicant claims that the agent told her that if her application unsuccessful, she could apply for another one so there was no risk to her and she thought she was helping another international student. The applicant states that she did not falsify the documents and it was all done by the agent.

24. The Tribunal finds the applicant’s evidence unpersuasive. The applicant knew she was not in a de facto relationship with the secondary  applicant. Even though her evidence to the Tribunal is that there was a relationship with Mr Han, the applicant appears to concede it was not a de facto one and in her written submissions the applicant expressly states that she was persuaded by the agent to included Mr Han and thought she was doing him a favour This supports the Tribunal’s view that the applicant was well aware that Mr Han was not her de facto partner and was not entitled to be included in the application. The applicant’s evidence is that the agent told her there was ‘no risk’ as she did not have to live with that person, however, the Tribunal is of the view that the applicant would have been well aware that she was making a claim in her application that was untrue. The Tribunal does not accept that the applicant did not understand the consequences and her claim that there was ‘no risk’ appears to suggest that she believed the falsehoods would not be discovered, or that  she could get the visa by other means, rather than that her actions were in compliance with the law.

25. The Tribunal finds that the applicant had had deliberately provided false information to the Department, whether the benefit was to herself or another person. The applicant was well aware of the falsehoods and engaged in it willingly. It is unclear to the Tribunal why the applicant believed that helping another person to stay in Australia was of greater importance than complying with the Australian laws and being truthful in her visa application. The Tribunal finds that the breach was deliberate and it is of little consequence, in the Tribunal’s view, that the main beneficiary of that breach was the secondary applicant and not the applicant herself.

    The present circumstances of the visa holder

26. In her submission to the Tribunal the applicant states that she met her partner in 2019 and they gradually developed a relationship. They married in October 2021 (the registration of marriage was delayed due to Covid) and she has made an application for a Partner visa in July 2021. The applicant describes the various aspects of her relationship with her partner. The Tribunal accepts the applicant’s evidence and acknowledges that the applicant has an outstanding application for a Partner visa. The applicant states that she has been able to get a bridging visa and can remain in Australia with her partner.

27. The applicant refers to her employment as a treasury consultant for two years. She states that she has not been able to work following the cancellation of her visa but the company was willing to offer her job back once she is able to work and now that she has been granted work rights, her position has been reinstated. The applicant refers to the support of her employer and colleagues and had provided a statement of support. The Tribunal accepts that evidence.

28. The applicant told the Tribunal that she has been living in Australia for seven years and is settled here, having her partner and employment in this country. She states that her colleagues value her and she has good relationships in Australia and has lost her contacts in China. The Tribunal accepts the applicant’s evidence, but is mindful that the applicant has an outstanding application for a substantive visa and is bridging visa to enable her to remain in Australia, so it does not appear that the applicant’s connections to Australia would be affected by the cancellation of her permanent visa because it would not lead to the applicant’s departure from Australia.

29. The applicant told the Tribunal that she and her partner have plans for the future and, in particular, having children. The applicant states that they have not been able to travel abroad to see parents and would not be able to travel abroad before her Partner visa is granted as she holds a Bridging E visa. The applicant also states that she may not be entitled to Medicare as a holder of a Bridging visa. The Tribunal accepts that she may be unable to travel as a holder of a BVE and acknowledges that  there is uncertainty about Medicare and other entitlements before the grant of the temporary visa. The applicant also suggests that purchasing a property may be an issue if she does not hold a visa. The Tribunal is prepared to accept that some of the applicant’s entitlements may be affected if the applicant is not a holder of a temporary or permanent visa, although the Tribunal is of the view that these difficulties are likely to be temporary until the applicant is granted her Partner visa in Australia (and the Tribunal acknowledges there can be no certainty about the visa grant).

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

1. 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

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

   The time that has elapsed since the non-compliance

3. The application was made in May 2017 and approximately four and a half years passed since the non-compliance. The applicant claims that it has been a long time for her but the Tribunal does not consider a period under five years to be significant.

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

4. There are no known breaches of the law.

   Any contribution made by the holder to the community

5. The applicant refers to her employment in Australia and the contribution through employment. The applicant also provided a letter for support from the NSW Southern Region Business Association which refers to the applicant’s voluntary activities. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to the community.

6. 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.

7. The visa held by Mr Han would be subject to consequential cancellation. The Tribunal has no information about his circumstances.

   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.

8. There are no children who would be affected by the cancellation.

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

9. The applicant does not claim, and there is no evidence before the Tribunal that Australia’s non-refoulement obligations arise in this case. The applicants partner is in Australia, however, the cancellation of the visa would not result in the applicant being required to leave Australia as she holds another visa that permits her to remain in Australia. The Tribunal finds that the cancellation of the visa would not result in the breach of any family unity obligations and Australia’s international obligations more broadly.

   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.

10. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. (Evidence before the Tribunal is that the applicant has made an application for a Partner visa which has not been finally determined.) If the visa is cancelled, the applicant would lose certain entitlements she may have acquired as an Australian permanent resident (the applicant refers to Medicare entitlements). There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore.

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

11. The applicant had provided a number of letters of support, including those from work colleagues and others. The Tribunal accepts the evidence in these letters.

12. The applicant refers to the uncertainty associated with the new visa process and the effect of the visa cancellation. She claims that the cancellation of her visa is creating a lot of stress and uncertainty. The Tribunal accepts that this is the case. Mr Liu also told the Tribunal that it would be preferable for them if the visa is reinstated, rather than rely on the existing partner visa, given the uncertainty.  

13. The applicant refers to other Tribunal decisions. The Tribunal considers such comparisons unhelpful because each case must be determined on its facts. In this case, there is a significant distinguishing feature in that the applicant has made an application for another visa and has been granted a Bridging visa. That is, the cancelation of her Skilled visa will not result in the applicant being required to leave Australia and to be separated from her partner. It is a relevant and an important consideration, in the Tribunal’s view, that may not have been present in other case. As such, the Tribunal does not consider other decisions cited by the applicant to be helpful.

14. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave, or caused to be given, bogus documents with her visa application and that there are grounds for cancelling the visa.

15. The Tribunal acknowledges the applicant’s evidence about the various hardships that would be caused to her by the cancellation of the visa and accepts that some hardship would be caused, primarily due to the uncertainty of the ongoing visa process relating to the Partner visa application and the uncertainty of the outcome. The Tribunal also accepts that while the applicant holds a Bridging visa, her travel rights and other entitlements may be adversely affected. In the circumstances of this case, the Tribunal is of the view that much of the hardship that is generally caused by a cancellation of a visa would be mitigated by the fact that the applicant has an outstanding application for a substantive visa which, if granted, would permit her to remain in Australia. The applicant holds a Bridging visa which allows her to remain in Australia and maintain her social, employment and other connections, while the application for the Partner visa is being considered. As such, the Tribunal is of the view that any hardship that would be caused to the applicant by the cancellation of the Skilled visa is not significant but the Tribunal accepts that some hardship exists.

16. The cancellation would not result in the breach of Australia’s international obligations and would not adversely affect the interests of any children.

17. The Tribunal acknowledges that the applicant is gainfully employed and has the support of her employer and colleagues. The Tribunal is mindful that she can continue her employment as a holder of a bridging visa. The Tribunal accepts the applicant has made a contribution to the community. The Tribunal accepts that the applicant is settled in Australia, has lived here for seven years and has strong family, employment, social and other ties in Australia. These are factors that weigh against the cancellation. The applicant expressed her remorse for the ‘big mistake’ and the Tribunal acknowledges that evidence.

18. The Tribunal accepts that the applicant did not rely on the additional partner points to gain the requisite score and that weighs considerably against the cancellation. However, in the circumstances of this case, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred. The Tribunal has formed the view that the applicant was well aware that incorrect information was being provided in her application concerning her relationship with the secondary applicant. She was informed of that prior to her visa being lodged but decided to go ahead with the falsehoods. For some reason, the applicant determined that helping the other person (or gaining whatever benefit she had gained from it) would be preferable to being truthful in her dealings with the Department. That is, the applicant had been untruthful deliberately and in full knowledge of what was included in her visa application. While the applicant claims she did was not involved in the preparation of the bogus documents, the applicant concedes that she took no steps to check the application. This is not the case where the applicant was not aware of the fraud or took no part in it. This is a case where the applicant deliberately chose to present untruthful information in order to assist her boyfriend, because she believed there would be no adverse repercussions for her. The Tribunal finds that such circumstances outweigh other considerations, particularly in the circumstances of this case where the Tribunal has determined that the hardship that would be caused by the cancellation would not be significant.

19. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

    Kira Raif
    Senior Member