Wang (Migration)

Wang (Migration) [2023] AATA 1980 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Fang Wang
REPRESENTATIVE:  Mr Brett Li (MARN: 9792769)
CASE NUMBER:  2209435
HOME AFFAIRS REFERENCE(S):          BCC2020/1954045
MEMBER:Noelle Hossen
DATE:29 June 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 29 June 2023 at 10:20am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – employment offer letter – business founder had never sponsored any workers – processing by specialist employment agency – impact on the applicant’s family – serious medical condition – employment obtained in a different occupation – properties and business ownership in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with Sections 101(b) and 103 of the Act, as she provided an incorrect answer in the ENS visa application form, and a bogus supporting document. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant provided submissions from her daughter and submissions to the Tribunal prior to the hearing. The applicant had provided a copy of the Decision of the Delegate to the Tribunal. The applicant provided further submissions after the hearing as requested by the Tribunal.
The applicant appeared before the Tribunal on 17 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Bing Ni. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
The Tribunal has considered the terms of the section 107 notice given to the applicant and the language used by the delegate to inform the applicant of their intention to consider cancellation, subject to the applicant’s response to that notice.
The applicant had provided responses to the section 107 notice issued by the Department and it was not contended by the applicant that there was any defect in the NOICC.
From its review of the NOICC, the Tribunal is satisfied that the NOICC contains sufficient particulars to enable the applicant to identify and address the issues.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s 107 notice was non-compliance with Sections 101 (b) and Section 103 of the Act in the following respects:
On the 19 June 2015 the applicant applied offshore for an Employer Nomination Scheme (ENS) (subclass 186) visa, in the Direct Entry Scheme. Included in the application as secondary applicants, were the following members of the family unit:
Ni Bing born on the 17 March 1967 spouse
Wang Ruinisi born on the 26 November 2000 son
Ni Shiwangen born on the 29 December 2010 Daughter.
To be eligible for this visa, the primary applicant must be nominated by an Australian employer whose business actively and lawfully operating, to work in a position in the approved list of skilled occupations. In the online visa application form, the applicant provided the following answer regarding the nomination for the visa:
Application context
The position that this application relates to must be a position that the applicant has been nominated for by their respective employer. This application may be refused if incorrect information is provided relating to the nomination details.
Nomination Details
Give details of the related information
Reference number type: Nomination TRN
Transaction Reference Number TRN: EGO8P417LM
According to the Departmental records, this TRN relates to an online ENS nomination application in relation to the applicant, lodged by a registered migration agent on behalf of Cawarra Cosmetics Pty Ltd, for the applicant to work in the occupation of Corporate General Manager. That nomination extended to the applicant and members of her family as above.
To support the applicant’s nomination by Cawarra Cosmetics Pty Ltd, in support of the visa application she provided an offer of employment letter dated 18 April 2015, for a period of no less than 2 years. The applicant signed the acceptance section on the offer of employment on the 29 April 2015, purportedly issued by Kirsty Basanwicz, Director Research and Development, Cawarra Cosmetics Pty Ltd, offering the applicant the position of Corporate General Manager with the business. This position was to commence on the grant of the ENS visa, and to be a full-time permanent position, for a period of not less than 2 years to work in the occupation of Corporate General Manager. That nomination extended to the applicant and members of her family as above.
Based on the above answers and supporting documents the applicant was assessed by a delegate and accepted and she was granted her primary ENS visa.
On the 9 June 2016 the applicant her spouse and children travelled to Australia from China.
Subsequent Information confirming that the information was incorrect and the documents bogus
On the 13 November 2017 a departmental officer phoned the number provided on the Offer of employment in support of the ENS Application to speak to Kristy Basanwicz (who purportedly issued the offer letter).
The receptionist was unaware of this person, so the officer asked to speak to the founder of the business and spoke to Greg Milham. Mr. Milham said that he did not have any dealings with the Department and has never sponsored anyone to work in his business.
The officer obtained written confirmation from Mr. Milham that he has never engaged the services of, or instructed, another person to act on his behalf or liaise with the Department. He confirmed that he has never authorised or instructed anyone to lodge a Permanent Employer nomination for his business. He said that he had no intention of sponsoring an overseas worker in the position of Corporate General manager. He further confirmed that he did not supply any business documents to another person in support of bringing another person to work in his business in Australia.
The Delegate considered the evidence gathered and concluded that the nomination that the applicant referred to in her ENS visa application was not actually lodged by or on behalf of Cawarra Cosmetics Pty Ltd. He concluded that the visa application did not relate to a position for which the applicant had been nominated in TRN EGO8P417LM
Consideration that the applicant did not comply with Section 103 of the Act.
The applicant had provided an offer of employment in support of her ENS visa application dated the 18 April 2015 offering the applicant an offer of Corporate General Manager.
Investigations by the Department revealed that the no such person by the name of Kristy Basanwicz ever worked for the company and that the business owner had never had any dealings with the Department and had no intention of sponsoring an overseas worker in the position of Corporate General Manager.
The Delegate concluded that the offer of employment was a bogus document.
Based on the above information the delegate concluded that the applicant provided incorrect answers and submitted a bogus document in support of her ENS visa application. The Delegate found that she had not complied with Section 101(b) and 103, and accordingly, his ENS visa was liable for cancellation under Section 109 of the Act.
Decision about noncompliance
In the NOICC responses dated the 18 and 22 February 2022 the applicant and her agent provided the following reasons why they do not agree that there was non-compliance:
“The visa holder had not provided or been involved in provision of false or misleading information/documentation to the department. She maintains that her employment and nomination by Cawarra cosmetics Pty Ltd were genuine.
The Visa holder had previously worked in the cosmetics and beauty industry in Shanghai for about 21 years in managerial positions. In January 2014 she first met the General manager of Shanghai overseas Chinese exit entry services Co Ltd (SOCEES) approached her to work in Australia, on the basis that many Australian cosmetic companies wished to expand their business in China and an expertise would be a great asset to their businesses. SOCEES was a State-owned company with a good reputation and represented the local Chinese government to some extent in some matters relating to overseas Chinese. As a special and professional recruitment agency with some exclusive rights authorised by the Chinese government, SOCEES acted for many American and European companies to hire local professional people in China. The Visa holder could see no reason for a State-owned company to provide false information to her in her application for such a long time.
Between March 2014 and March 2015 SOCEES introduced several Australian companies to her and she undertook several interviews and was even offered a job in August 2000 and 14 x 1 of these Australian companies. However, she declined this offer because she thought their business activities were not closely related to her career.
In early March 2015 the General manager of SOCEES told her the human resource manager (HR) for the sponsor business would be visiting China in mid-March 2015 to interview a few candidates and offered to arrange an interview for her. The Visa holder applied for the nominated position through SOCEES and on 17 March 2015 was interviewed by a “white Australian,” who introduced himself as the HR manager of Cawarra Cosmetics, but she does not recall his name. Interviews were conducted with the Visa holder and many other candidates at SOCEES’ office in Shanghai. Her interview was conducted in English, with a SOCEES staff member as the interpreter. The Visa holder had no doubt regarding the genuineness of this position and of the interview, noting the HR manager was very knowledgeable about cosmetics, beauty products and the industry, and they discussed many technical issues during the interview.
On 27 April 2015 the Visa holder received an email from SOCEES advising she had received an employment offer from the sponsor business and asking her to attend their office to sign the agreement. Over the following few months, she provided her personal documents and details to SOCEES, who communicated with the sponsor business directly.
Following receipt of the NOICC, the Visa holder contacted the 3 people she had dealt with from SOCEES, seeking clarification and evidence regarding the circumstances around the nomination and Visa application. She found that her Visa application had been prepared and lodged by a migration lawyer/agent, arranged by SOCEES, named Simone Kerney. The visa holder then contacted Ms Kearney, who provided copies of emails showing that all the sponsors documents for the nomination had been provided directly to Ms Kearney, by the sponsors lawyer. Ms Kearney had been instructed by the sponsor to prepare the Visa application. Ms Kearney also believed the nomination and Visa application related to a genuine position.
To nominate the Visa holder for an ENS visa, the sponsor business would need to have provided full information and documents about their business operations, business certificates, tax returns and financial reports, BAS statements from ATO portal, staff details and organisational chart, staff training activities etc. as a private company all the above information and documents of the employer are private and strictly confidential. It is hard to imagine the large volume of information and documents such as these could be accessed by 3^rd party without the consent and delivery of the sponsor business.
After the Visa was granted the Visa holder was advised by an employee of SOCEES to book a hotel in Newtown Sydney for 3 days. The reason given was that the sponsor business is located approximately 8 hours’ drive from Sydney so it would not be possible for the Visa holder to travel there on the same day she arrived in Sydney. The Visa holder was told by the SOCEES employee that the sponsor business would send someone to Sydney airport to pick her up and her family and send them to the hotel, then later to take them to the sponsor businesses office.
However, when the Visa holder and her family arrived at Sydney airport, despite waiting one and ½ hours, no one came to collect them. They made their own way to the hotel and waited there to be contacted by the sponsor business. After they had stayed at the hotel for the booked period of 3 days, they had still not been contacted by anyone from the sponsor business. The Visa holder extended her hotel booking for a further 3 days.
During that time, she kept contacting SOCEES asking for advice what is going on and was told by the employee that the sponsoring businesses financial circumstances and their business directions may change in the coming financial year due to potential risks in the relationship between Australia and China though they may not be able to offer her this job anymore. SOCEES advised her that they are still contacting the sponsor business and waiting for final confirmation. During this time, she extended her hotel booking a further 5 days
On 19 June 2016 she again contacted the SOCEES employee confirmed most likely the sponsor business would not offer her the job anymore because in their communications with the sponsor business their response had been very reluctant and uncertain. The employee said she believed the sponsor was deliberately delaying her onboarding request and that they would continue to contact the sponsor business to ask them to consider employing the Visa holder.
The applicant provided the following supporting documents to the delegate of the Department:
Statutory declaration made by the Visa holder on 18 February 2022 referring to the information summarised above
Screenshots from a mobile phone of a booking for Summerhouse Newton between 13 and 16 June 2016; further booking between 16 and 21 June 2016; and a further booking between 21 and 22 June 2016.
Letters in Chinese with an English translation from the following people after the NOICC was issued, who the Visa holder have referred to above as being the SOCEES ‘s employees with whom she had been in contact and supporting her claimed version of events namely
Min Chen , stating they were a business assistant at SOCEES and was the translator at the interview with the Visa holder on 17 March 2015 conducted by representative or the sponsor business sent to China for recruitment.
Ruijin Yang, stating they are former employee of SOCEES who in early June 2016 was responsible for making arrangements for the Visa holder and her family to travel to Australia to take up employment there.
Zhengjun Ye stating they were, the General manager of SOCEES, had introduced the Visa holder to a few Australian companies and in March 2015 to the sponsor business.
The following emails in English translation relating to the Visa holders claimed discussions with SOCEES employees:
From Hongju Chen, dated 28 February 2014, requesting the visa holder’s resume and further information from her. from her
From Hongju Chen, dated 3 March 2014 sending an assessment form to the Visa holder
From Cheryl, dated 27 April 2015 sending an employment agreement for the Visa holder, and asking her to attend their office to sign it. In the NOICC response the Visa holder claims this was the agreement in relation to the sponsor business
From Larissa of SOCEES dated 13 August 2014, referring to an attached offer of employment and asking her to attend their office to sign it. In the NOICC response the Visa holder claims this is an email between her and SOCEES’s regarding an offer of employment from another Australian business.”
The delegate of the Department concluded in summary the following:
The NOICC did not address why the sponsor would deny having ever nominated the applicant to work for them to the Department. The delegate was not satisfied that the letters and emails provided in the NOICC response, demonstrated sufficiently that any representative from Cawarra Cosmetics had interviewed the applicant in Shanghai as claimed, nor that she had been offered the employment as claimed and that the business was even aware that the applicant was travelling to Australia to commence employment.
She claimed that the application ENS visa and nomination was lodged by Simone Kearney when it was in fact a Simone Dickerson. All emails provided to the NOICC response were between the applicant and SOCEES. The delegate was not satisfied that the supporting documents to the NOICC support the claim that the business was aware of and involved in offering her employment and nominating her ENS visa.
The Delegate considered that if the sponsor business had refused to honour the contract of employment once she arrived in Australia it would have been open to her to seek legal advice. She did not claim to have done so. The delegate considered that this lack of action, in response to the apparent breach of the employment contract, supported her claim, that she genuinely believed she had a genuine employment contract to work for the sponsor business.
The applicant did not provide copies of documents to support the claim that the 3 emails that she claims were from employees of SOCEES were in fact from them. She did not provide evidence of their identities and that that the emails from the business sponsor were indeed sent by employees of that business. The emails referred to 2 different website domains. The delegate commented that he found it unusual for a state-based company changed domains or have 2 websites running concurrently. The delegate was unable to access either of these websites for the company.
The delegate did not accept that the mobile phone screenshots regarding the bookings for Summerhouse Newton confirmed the evidence that these bookings were made for her and her family. There was no evidence as to whose telephone these bookings were made from and considered that there may be other explanations.

The applicant did not contact the Department and report the alleged conduct by the sponsor after her arrival in Australia. The Department could not find any records to indicate that she did so. The absence of any such advice to the Department does not support her version of events.
The applicant claims that the agent who lodged the nomination must have been authorised by the sponsor business to do so, otherwise, they would not have been able to obtain such documents. The delegate did not accept the proposition as set out in the Response by the applicant because they cannot exclude the possibility that a third party had obtained this information through other means and used it to commit immigration fraud.
The delegate was not satisfied that the applicant was employed to work in the nominated occupation by the sponsor business nor that the sponsor business was aware of and had authorised the lodgement of the associated ENS nomination application in relation to the Visa holder on which basis she subsequently applied for and was granted the ENS Visa.
Non-Disclosure Certificates
A number of documents contained on the Department files were not able to be released due to nondisclosure certificates issued by a delegate of the Minister under SS 375A of the Act.
The Tribunal forwarded a letter to the applicant that the Department files for the cancellation both contain certificates and notification regarding disclosure of certain information to the Tribunal under s 375A of the Act. The applicant and her representative were provided with information relating to the specific documents that were the subject of the certificates by letter dated the 10 March 2023 from the Tribunal.
The Tribunal had taken the view that there were valid certificates and accordingly release of information is prevented under the documents covered by this section 375A certificates.
The representative on behalf of the applicant replied to the letter advising that the applicant did not consider that the nondisclosure certificate was valid.
At the hearing the Tribunal outlined that certificate material contains information between internal sections of the department and the disclosure of this information would be contrary to the public interest because effectively the information related to the investigative functions of the Department.
The Tribunal invited the applicant and her representative to make further submissions as to as to whether they had any further objections to the validity of the certificates. The applicant through her representative indicated that they did not have any further submissions or objections.
The Hearing
The hearing was conducted with the assistance of an interpreter. It was noted that the applicant found it hard to provide a direct answer to the questions posed by the Tribunal and the Tribunal had to keep asking the questions in a different format to try to elicit information from the applicant. The Tribunal finds that the applicant was not willing to answer in a straightforward manner or to concede on any matters that would be against her interests.
For instance, the applicant submitted that her son who travelled with her and her husband in 2016 to Australia would be returning to attend University in Australia. She found it hard to explain the circumstances of his schooling and domicile. The Tribunal asked when he finished school in Australia. She said he went back to China before he graduated.
She was asked where her son lived in China, she answered that he was due to come back to Australia on the 3 February 2020. He never returned to Australia. After several questions she revealed that he had returned to China in August 2016 and had not returned and is now studying at a Chinese University. He had stayed in Australia for 2 months. The answers in the submissions regarding her son had remained vague until pressed to provide an explanation. She confirmed in her oral evidence at the hearing, that her son was not impressed with the circumstances of the family after arriving in Australia and had returned to China. He is now 22 years of age and lives in China.
She was asked after she had stated that she had obtained employment in Hurstville as a real estate agent how much money she earned from her employment. The applicant provided a vague explanation that she did not receive an annual salary as she was paid on commissions. She was asked how much in total including commissions did she earn? She responded that she earned approximately $10,000. She then added that she had sold 2 properties but was not paid for those.
She was asked various questions regarding her employment as a real estate agent. She said that she decided to get a job as she had 2 children to support. She said that she was on her way to English classes in Hurstville in August 2016 when she spotted that she could work as a real estate agent.
The fact that she obtained work as a real estate agent within 2 months of her arrival shows that she was motivated enough and competent enough to obtain employment. When asked why she did not contact the Department to explain about the fact that she could not work for her sponsor, she admitted that she did not contact anyone as she said that she was fearful as she was anxiously waiting for the Cosmetics company to contact her. Her evidence regarding that issue, is not accepted by the Tribunal. She had arrived in Australia with her family to undertake a senior role in a cosmetics company. It seems implausible that she would obtain employment in a real estate firm after 2 months of arrival but was unable and unwilling to seek legal advice to enforce the employment contract or contact the Department to explain her position.
She was asked why she not pursued the issue and make it right earlier. She said she did not know any agents in Australia. She said that she did not contact the Department as “her brain was all blank”. She said her child was young and she was afraid in her mind.This is not consistent with her evidence that she obtained employment as a real estate agent within 2 months of arriving in Australia.
She was asked questions regarding her submissions in the response to the NOICC such as the interview process between March 2014 – 2015. She was asked how many interviews she attended with Australian Companies. She said that she only attended 1 interview. She was emphatic that she had only attended one interview but her response in the NOICC had a different set of facts.
Her agent submitted that SOCEES is no longer operating in Shanghai and that there are difficulties obtaining information. He also stated that she had contacted her witnesses via Wechat. He said this was the reason that they could not access her file.
The Tribunal tried to elicit evidence during the hearing from the applicant, regarding the applicant’s contact with SOCEES after her arrival in Australia. She said that after she arrived, the contact was not completely cut off but that they replied in a quick way. At one point she had said that after 2016 they did not answer her calls or text messages. She then said that the contact was not completely cut off as they did reply on and off. She then said that after receiving the NOICC she was provided with details for contact in 2022.The evidence was confusing and vague, and the Tribunal finds that the applicant was being entirely truthful about her actions after she arrived in Australia and in respect of her options to find out why the contract of employment was not fulfilled. The Applicant failed to enforce her contract of employment and to contact the Department after her arrival in Australia.
The Department investigated the matter in 2017 and became aware of the situation, on the 13 November 2017 when they telephoned the Company Cawarra Cosmetics Pty Ltd that the alleged Director of Product Research and Development Kristy Basanawizc had never worked for the company. The Department spoke to the founder of the business and obtained written confirmation that the company had never sponsored anyone to work for his company and that he had never had dealings with the Department. The Tribunal finds that the information regarding the investigations and the conclusions reached by the delegate of the department and contained in the delegate’s Decision is accurate.
The Tribunal is not satisfied that the applicant was employed to work in the nominated occupation by the sponsor business and that the sponsor business had authorised the lodgement of the associated ENS nomination application which was referred in the ENS visa application Form. The Offer of Employment is a bogus document. Therefore, the information contained in her ENS application is incorrect.
The Tribunal notes that in the delegate’s decision he states that “ I note that on the 20 July 2020 the visa holder was granted a Resident Return (subclass 155) visa, which had the effect of ceasing and replacing her ENS visa granted on the 11 November 2015. However, section 107A of the Act specifies that non-compliance in relation to the visa holder’s earlier ENS application form, can constitute grounds for cancellation of her current Resident Return visa granted on 20 July 2020.” The Tribunal finds that non-compliance in relation to the applicant’s earlier ENS application form, can constitute grounds for cancellation of her current Resident Return visa.
For these reasons, the Tribunal finds that there was non-compliance with Section 101 (b) and Section 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
· the correct information
The Tribunal accepts the findings of the Delegate that the applicant had not accepted an offer of employment with the sponsor business to work for them in the nominated occupation of Corporate General Manager. Her ENS application form was not related to an ENS nomination application lodged by the sponsor business, for her to work in the nominated occupation. The sponsor business did not lodge that nomination application, nor authorise anyone else to do so on their behalf.
The conclusion leads the Tribunal to state that the correct information is significantly different to what the applicant provided in her ENS Visa application.
The Tribunal places a lot of weight on those considerations in favour of cancelling the visa.
· the content of the genuine document (if any)
The Tribunal is not satisfied that that the applicant was offered employment from the sponsor business. The Tribunal considers that the offer of employment letter dated the 18 April 2015 is a bogus document and that it was not issued by the sponsor business not signed by a representative.
There is no evidence as to how the document was created but based on the evidence before it that the founder of the sponsor business stated that his company has had no dealings with the Department and that he did not authorise anyone to make the offer of employment the conclusion is that the document is a bogus document.
The Tribunal places a lot of weight on those facts in favour of cancelling the Visa.
· whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The Tribunal considers that if the Delegate assessing the ENS visa application had been aware of the circumstances of her case that the application would have been rejected. In providing the incorrect answer and bogus document, the applicant and her family were granted visas to which they may not have been entitled to.
The Tribunal places some weight on those facts in favour of cancelling the Visa.
· the circumstances in which the non-compliance occurred
The noncompliance occurred when the applicant provided an incorrect answer in her ENS visa application lodged on the 19 June 2015, that the application related to a position for which she had been nominated by Cawarra Cosmetics Pty Ltd, to work in the occupation of Corporate General Manager; and she provided a bogus offer of employment letter purportedly offered to her by a representative of the sponsor business on 18 April 2015.
The Tribunal has found that the applicant did produce a bogus document and that the approved nomination was lodged and approved on the basis of the fraudulent document.
The family claimed that they suffered financial hardship when they arrived in Australia. She claimed to have been stranded with her husband and young children and that they did not have a good command of the English language. They claimed to have difficulty with no long-term accommodation, job security and had sold all their properties in China.
She said that her husband wanted to return to china. The evidence is that her son did return to China but that she insisted that they take a chance in Australia.
The Tribunal considers that they could have returned to China to live if the job opportunity that they claim evaporated as they had only recently moved to Australia. The Tribunal does not accept that the non- compliance occurred due to circumstances beyond their control. The Tribunal places some weight on those facts in favour of cancelling the Visa.
·the present circumstances of the visa holder
The applicant, her husband and daughter have lived in Australia for nearly 8 years. Her daughter provided letters to the Tribunal pleading to let her stay in Australia as she has completed all her education in Australia. She said that she cannot speak Mandarin.
The evidence is that the applicant and her husband own 4 properties that they have purchased in Australia.
The applicant, her husband and their daughter have lived in Australia for over 8 years which has led to them becoming settled in Australia. They have established financial ties through the purchase of several properties. Their daughter who was only 5 years of age when she arrived has attended all her schooling in Australia. She cannot speak Mandarin. She has spent her formative years in Australia and has established an Australian identity. The Tribunal considers that this is an extended period and that if the applicant was not granted a visa the whole family would have to return to China causing significant hardship to the applicant’s daughter.
The applicant has stated that her son intends to return to Australia to study at a higher level of education. Although time her son has remained to live in China and in effect, his position would not be affected it may cause significant hardship to the family, as a whole and she would not be able to visit their son for 3 years, if her visa was cancelled and he decided to study in Australia.
If the parties must leave Australia the applicant considers she shall be forced to sell the properties that she has purchased in Australia.
The Tribunal accepts that the applicant is now at an age where it would be difficult for her to obtain employment in China. She has submitted that there would be difficulties with opportunities for employment for her. She is the sole breadwinner of the family because her husband suffers ill-health. The evidence is that she was working as a shop assistant in a shop that was located downstairs from the apartment building that they reside in presently because she must keep an eye on her husband who is disabled due to his medical condition.
The Tribunal places significant weight on those facts as contained in paragraph 77 to 82 of this decision against the cancellation of the Visa.
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
There is no information before the Tribunal that the applicant has not complied with her obligations under subdivision C of Division 3 of Part 2 of the Act since the NOICC was issued.
· any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Department or the Tribunal that the applicant has not complied with her obligations or not complied with the migration laws of Australia. The Tribunal places some weight on those facts in favour of not cancelling the visa.
· the time that has elapsed since the non-compliance
The Department started to investigate this matter in 2017 but did not advise the applicant or her family that they had concerns regarding the matter until 2022. This allowed the applicant and her family to feel settled in Australia and the Tribunal places significant weight on those facts in favour of not cancelling the visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal to indicate that the applicant has breached any Australian laws.
The Tribunal places some weight on those facts in favour of not cancelling the visa.
· any contribution made by the holder to the community
Ms Wang and her husband have invested in a few properties in Sydney which is their main source of income. If they are forced to return to China, they say that they will be forced to sell the properties which they say will cause them financial stress. They say that they will suffer hardship.
Ms Wang is now working as a cashier at a supermarket located under the building that they reside in as she must stay close to the home to care for her husband. The family have settled well in Australia.
She says that she obtained exclusive ownership and distribution rights for several Chinese patented therapeutic products in Australia. These products were approved by the TGA to sell and use in Australia under the company name of Southern Cross Cosmetics Pty Ltd where she was a shareholder.
They are very concerned for the well being of their daughter who would now be in High School as all her education to date has been in Australia. English is now her first language.
The applicant has continued to work throughout the time that she had lived in Australia. The applicant has time also invested in the purchase of properties in Australia and the Tribunal places some weight on those facts in favour of not cancelling the Visa.
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.
There are no consequential cancellations of her husband and her children of the Resident Return Visa.
The Tribunal is unable to attach any weight for or against cancelling the visa.
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. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
The policy guidelines require that the Tribunal assess whether Australia would be in breach of its obligations under the Convention on the Rights of the Child(CRC) and the International Covenant of Civil and Political rights (ICCPR).

100. whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
101. Although the applicant’s husband and 2 children were granted secondary ENS visas on 11 November 2015 they were subsequently granted other visas. The applicant no longer holds the primary ENS which was granted to her on the 11 November 2015 having been granted the current resident return Visa on 20 July 2020 which ceased and replaced her ENS visa.
102. As a result of that time there will be no consequential cancellation.
103. The Tribunal does not place any weight either for against the cancellation of the Visa on those circumstances.
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. The effect on family members particularly partners and children in Australia including non-citizen family members must be considered by the Tribunal. This is particularly the case if the visas or family members would be cancelled by operation of law under section 1401
104. This consideration applies to the applicant’s minor daughter born 29 December 2010 who is currently living in Australia.
105. The Tribunal has considered the fact that if the Visa is cancelled her daughter may have to return to China and she will experience significant hardship because she will be unable to integrate into the Chinese schooling system as she does not speak Mandarin. The applicant’s daughter provided a written statement to the Tribunal. She stated that she will also experience hardship in being separated from her friends in Australia. Although by cancelling the applicants Visa it will not result in the consequential cancellation of her daughters Visa the Tribunal has to take into consideration her daughter’s subsequent circumstances.
106. The difficulty that the applicant is facing is that her daughter is unlikely to be able to remain in Australia without adult supervision. Her daughter is only 12 years of age. The family unit would have to be split which will cause significant difficulties if her daughter remains in Australia.
107. In the event that the Visa is cancelled the applicant will become an unlawful noncitizen and will be liable for immigration detention under section 189 and removal under section 198 of the Act. It would be open for her to return to the country to mitigate the possibility of being detained. The fact that she would be unable to lodge Visa for a period of 3 years from the date of cancellation. Considering all the above the Tribunal places significant weight on those factors against cancellation of the Visa.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
108. The Tribunal has placed significant weight against the cancellation of the visa, on the fact that the applicant would suffer significant hardship should she have to return China. Her husband’s medical condition is serious. There is evidence before the Tribunal from his specialist that he has almost lost his sight due to poor treatment of the initial condition in China. Although cancelling the applicant’s Visa would not result in a consequential cancellation of her husband’s Visa it is likely that the husband will have no choice but to return to China in view of the fact that he is dependent on his wife to care for him.
109. 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 vis should not be cancelled.
DECISION
110. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Noelle Hossen
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2023] AATA 1980

29 June 2023

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