Wang (Migration)

Wang (Migration) [2024] AATA 3566 (20 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Yi Wang
REPRESENTATIVE:  Ms Qijing Briony Chen
CASE NUMBER:  2411746
HOME AFFAIRS REFERENCE(S):          BCC2023/6317007
MEMBER:Simone Burford
DATE:20 September 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 20 September 2024 at 12:55pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – issued in relation to student visa application – non-compliance with condition of visa – found working by border force – told by friend that she could work on student visa – student visa refused and review application in progress – bogus document and inconsistent evidence about life and work in home country – applicant holds Bridging E visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 4, criterion 4020(1), Schedule 8, condition 8115
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 May 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa (the Bridging A visa) under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant had not complied with a condition of her visa. That condition was condition 8115 which required that the applicant did not engage in work in Australia other than by engaging in a business visitor activity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Since the applicant applied for a review of this decision, she advised that the application for a student visa (which was associated with the grant of the Bridging A visa) has been refused by the Department and she has sought a review of that decision to this Tribunal. That application is not before the Tribunal as currently constituted.
The applicant was granted a Bridging visa E (Subclass 050 visa) on 9 May 2024 on departure grounds. That visa was in effect until 17 May 2024. A copy of that visa was provided to the Tribunal buy the applicant. Departmental records indicate she was granted further Bridging visa E’s on 28 May 2024 and 29 June 2024 associated with the review of her student visa application.
The applicant appeared before the Tribunal on 31 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The applicant’s representative did not attend the hearing. The applicant confirmed at the hearing that she was not expecting her representative to attend and that she wished to proceed with the hearing in the absence of her representative.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
In support of her application the applicant submitted the following documents to the Tribunal on 24 July 2024:
·A statutory declaration from the applicant dated 24 July 2024;
·Copy of a Chinese passport for Wang Yi (the review applicant) issued 18 August 2022;
·A graduation certificate for Wang Yi;
·Copy of a Chinese passport for Wang Yu Ting (the daughter of the review applicant) issued 27 February 2023;
·A copy of a Chinese passport for Xu Daxiong (the husband of the review applicant) issued 28 February 2023;
·A certificate of marriage for Wang Yi and Xu Daxiong dated 21 April 2016;
·Certificate of employment from Shenzhen Jincheng Jewelery Co Ltd dated 26 October 2023 (with translation);
·Confirmation of Enrolment for the applicant;
·Partnership Certificate issued by Jiaoya Beauty Centre (with translation) dated 26 October 2023 (indicating the applicant received an annual dividend of 200,00RMB).
On 30 July 2024 the applicant submitted further documents correcting what she claimed was an error with respect to the amount of money she received from Jiaoya Beauty Centre:
·Statutory declaration of the applicant dated 29 July 2024;
·Partnership Certificate issued by Jiaoya Beauty Centre (with translation) undated (indicating the applicant received an annual dividend of 20,00RMB).
Does the ground for cancellation exist?
s 116(1)(b) - non-compliance with conditions
A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8115 attached to the applicant’s visa. This condition requires a visa not engage in work in Australia other than by engaging in a business visitor activity.
The applicant indicated to the Tribunal that her representative had explained the reasons for the cancellation to her and that she had been told her visa had been cancelled because officers from the Department had come to her home ‘to check on her’ and she was asked if she was working. She said that she had told them she did work but only occasionally doing massage. She claimed that at that stage she ‘didn’t know if my bridging visa allowed me to work’.
According to the decision record submitted by the applicant, the Notice of Intention to Consider Cancellation (NOICC) of her visa was delivered to her on 9 May 2024. The NOICC stated that on 8 May 2024 the applicant was located at 221 Hardey Rd Belmont during Australian Border Force (ABF) non-warrant activities. The record records that on questioning by ABF officers the applicant stated that she was conducting massage work. The applicant stated that she been working for about 4 months and her clients paid her mostly cash. She stated that she gets her clients via the internet, but she didn’t really know. The applicant reportedly stated the hours she worked depended on how much free time she had and she reportedly stated that how much she get paid depends as sometimes her clients give her tips.
When this account was put to the applicant at the hearing she said that when she communicated with the ABF officer they heard it incorrectly and they said she worked for 4 months but she only said she stayed in the room in the house she rented for 4 months.
In the NOICC the delegate noted that the applicant’s bridging visa has condition 8115 attached which states the holder must not work in Australia other than by engaging in ‘business visitor activities’. The decision records that the applicant responded on the same day saying:
·She did not know what conditions were attached to her visa but she now understood.
·Someone told her could work up to 48 hours a fortnight while she was on a student visa.
·She did not know she was not on a student visa.
·She only worked 1-2 hours a day as massaging is a tiring service.
·She lived in the residence for only 4 months and worked there occasionally.
At the hearing the applicant accepted this account was correct. The applicant agreed she was working while on a Bridging visa with an 8115 condition.
The delegate’s decision noted that the applicant received a grant notification advising of the visa conditions when it came into effect. The grant notification provided useful links in which the visa holder can utilise to check her status and conditions attached. In response, the applicant told the Tribunal she didn’t read the grant notification and she didn’t know she could check it online. She said her agent just told her she had a Bridging visa. She said she only communicated with the agent on weChat.
The Tribunal asked if the agent told her she could work on the visa she had been granted and she said ‘they didn’t say yes or no’. The Tribunal asked if she had asked if she could work and she said ‘no’. The Tribunal asked if she had been allowed to work on the visa she held up to that point and she said she heard from a friend she met in Australia that she was on a student visa. She did not check that information with her agent.
The Tribunal put to her that it may be reasonable assume she would have checked before she engaged in work, noting she told the Tribunal she was aware on her prior visa she had been unable to work, and she agreed. The Tribunal put to her the fact she claimed she did not check with her agent but relied on friends for the details of her visa might cast some doubt on her claim to have been unaware she was not permitted to work and she said that she didn’t think much about it. She said it wasn’t until after her visa was cancelled that she engaged a more professional lawyer to investigate her visa.
The Tribunal noted that the delegate was satisfied that the applicant was here to work and she was not compliant with the specified condition of her visa (Condition 8115). The Tribunal put to the applicant that on the information before it, it appeared that the applicant was in breach of condition 8115 of her Bridging visa A and she agreed.
The applicant agreed she worked while on her Bridging visa A despite Condition 8115 of that visa preventing her from doing so.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal discussed with the applicant her background and reasons for travelling to Australia and seeking to remain here. The applicant came to Australia in August 2023. She was married in China and said she had been working as a partner in a beauty salon and did massage work. She said her husband had a business for which she was the accountant for 3-4 years. It was a jewellery business but she could not recall the name of the business. She stopped working about 6 months after the COIVD 19 pandemic started. Before she came to Australia she worked part time in Hong Kong as an insurance broker.
The applicant indicated her main reason to stay was to relax herself and have a tour. Her original intention was to stay for a month. She couldn’t remember where she stayed. It was at someone’s house and the house owner spoke Chinese and English. She said she travelled alone. She travelled around Perth but did not go anywhere else. She said at that time her intention was to get some relaxation and ‘break away from my husband’s issue’. When asked about her ‘husband’s issue’ she said her husband is younger than her and when they started together they were happy but then things weren’t going so well so she decided to break away to relax herself.
Her current husband was her second husband. Her first husband was from Hong Kong and they had a daughter. Her daughter is 14 years old and lives in Shenzen but crosses into Hong Kong every day to study. The applicant was living in Shenzen and Hong Kong before she left for Australia. She mostly stays in Hong Kong. She lived with her husband but in the last two or three years she stayed with her mother and daughter. She said her and her (second) husband separated more than three years ago. She indicated later that it was 3-4 years ago. She said she is in contact with her husband when she has something she needs to discuss with him such as getting money for living expenses. He provides money (10-20K RMB per month) to support her and her daughter).
She owns property in China from which she derives income including a business shop and a residential property. The residential property is in her sister’s name because she is a local resident and is ‘more convenient’ to use her name for business purposes.
The Tribunal asked about the applicant’s circumstances in Australia, and she said she had moved into the share house at Christmas. She did not know anyone when she arrived in Australia.
The applicant provided the following migration history in her evidence:
Immigration history
·First arrived in Australia on 19 August 2023 as an ETA holder.
·Lodged a Student visa application on 2 November 2023
·Bridging visa A was cancelled on 9 May 2024 and the applicant was granted a Bridging visa E on the same day. A second Bridging visa E was later issued on 28 May 2024 in association with review of Bridging visa A cancellation;
·Student visa application refused on 23 May 2024;
·Application for review of Student visa refusal lodged 7 June 2024;
·Further Bridging visa E application lodged on 14 June 2024, based on the review application lodged on 7 June 2024. That review application is pending.
The Tribunal notes the Tribunal went through the evidence submitted by the applicant prior to the hearing, including the two versions of the Partnership Certificate issued by Jiaoya Beauty Centre (dated and undated) claiming different dividends. Her statement mentioned a different amount again (40,00 RMB). The applicant claimed she noticed the wrong figure had been included in the first certificate and asked her friend (who owned the business) to correct it. The second certificate had then been sent (undated). The Tribunal raised with the applicant concerns that the two certificates though issued by the same company did not appear in the same format and did not carry the same company seals. The applicant was unable to offer any explanation for these discrepancies.
The Tribunal was unable to place significant weight on this material given the unexplained discrepancies in the partnership document.
The Tribunal was also troubled by aspects of the applicant’s evidence relating to her circumstances in China including that she could not recall the name of her husband’s business not withstanding working for that company as its accountant for several years. The Tribunal considered this evidence and the discrepancies in documentation raised concerns about the credibility of the applicant’s evidence, including with respect to her claims to have been unaware of the conditions of her visa.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The Tribunal discussed with the applicant the reasons for travelling to Australia and seeking to remain here. As noted above, the applicant came to Australia in August 2023.
As noted above, the applicant indicated her main reason to stay was to relax herself and have a tour. Her original intention was to stay for a month. She said at that time her intention was to get some relaxation and ‘break away from my husband’s issue’. Her husband is financially supporting her. The Tribunal queried why she needed to be in Australia to break away from her husband and she said that she wanted time for herself. She came to travel around but she did not travel beyond Perth.
The applicant has applied for a student visa in November 2023 to study at Queens College (London) in Brisbane (Online) in the following:
·General English (Beginner to Advanced) course; and
·Diploma of Business course.
Her younger sister and her husband were financially supporting this. The language course is for 10 weeks and the business course is for 52 weeks. She said she applied because when she came to Perth she loved Perth and she wanted to stay here to improve herself and upgrade her skills. She hoped to further her education to set an example to her child and demonstrate her better ability to her husband. She hoped to improve her skills to assist her husband’s company, which continues to make and sell jewellery.
According to the applicant’s evidence, the student visa was refused on 23 May 2024. She has been granted a Bridging visa E in connection with her ongoing review of that decision and will not be placed in detention or required to leave if her Bridging visa A remains cancelled.
The Tribunal considers the applicant’s need to remain in Australia with respect to the review of a decision to refuse her student visa is met by the grant of a Bridging E visa and cancelling her Bridging A visa will not affect her ability to remain in Australia until her student visa application is finally determined. The Tribunal does not consider that her original reason for travelling to Australia to relax provides a compelling need to travel or remain in Australia.
The Tribunal considers this consideration is neutral with respect to the exercise of the discretion.
The extent of compliance with visa conditions
The applicant’s Bridging visa A was subject to a condition that she not engage in work in Australia other than by engaging in a business visitor activity. She accepts she did engage in work in breach of this condition. There is no information before the Tribunal that she has breached any other conditions of the visa.
This consideration weighs in favour of the exercise of the discretion to cancel the visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
It was submitted the applicant will remain in the community (on her Bridging visa E) and continue to work and seek a review of the refusal of her Student visa if the Bridging visa A is cancelled. The cancellation of his visa will result in some limits on other types of visa for which she can apply in Australia.
The applicant said she would lose her opportunity to study in Australia and she didn’t know how she would tell her daughter. The Tribunal explained that this decision did not relate to her student visa. She said she would have an adverse record if the visa was cancelled and this would affect her application for her student visa.
The Tribunal notes both the applicant’s Bridging visa A and her Bridging visa E have restrictions on the applicant’s ability to work (conditions 8101 for her current visa) and as such the cancellation does not impact her capacity to work in Australia. In any event the applicant indicated she has been and continues to be financially supported by family members.
The Tribunal does not accept the applicant would be caused significant financial, psychological, emotional or other hardship if the visa is cancelled.
This factor weighs neutrally with respect to the exercise of the discretion.
The circumstances in which ground of cancellation arose. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The circumstances in which ground of cancellation arose were that the applicant says she thought she was able to work on her visa. There was no information to suggest the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. She claimed her representative did not explain the conditions of the visa and she was only working occasionally. She also claimed not to have asked her agent about her ability to work on the visa but to have relied on the advice of friends. She accepted that she had an obligation to inform herself as to the conditions of her visa.

She said she started doing massage work because she heard from other people if she stayed she could work and she had worked previously in massage work.
While the applicant claims she came to Australia to separate from her husband, she gave inconsistent information on this indicating her husband had financially supported her travel and that they had been separated for some years. She later said she wanted to relax but was not seeking to get away from her husband.
The applicant gave evidence she has been consistently supported by her husband financially and received income from property and business investments in China. She did not claim to have worked due to financial need.
The Tribunal does not accept the circumstances described by the applicant amount to circumstances beyond her control.
These circumstances weigh in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the Department
In terms of the applicant’s past and present behaviour of the visa holder towards the department, in her statement to the Tribunal the applicant mentioned that she had applied for a Student (Temporary) (class TU) Student (subclass 500) visa on 2 November 2023 (the Student visa) and that application had been refused on 23 May 2024. Information before the Tribunal suggested she had sought a review of that decision to the Tribunal.[1] She provided a copy of the delegate’s decision in that application to the Tribunal with her application for review of that decision.
[1] Tribunal review application ref 2416047
At the hearing the Tribunal put to the applicant information arising from the decision which would be the reason or part of the reason for refusing the decision under review pursuant to s 359AA of the Act.
The particulars of that information were that, with respect to the refusal of her student visa on 23 May 2024 that application was refused on the basis that the delegate was satisfied that there was evidence before the Minister that the applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to that visa application. Based on the evidence and information before it, the delegate found the applicant had given a bogus document within the meaning of section 5(1) of the Migration Act. Therefore, the delegate was not satisfied that she meet Public Interest Criterion (PIC) 4020(1).
Information indicated that as part of the Student visa application the applicant had submitted evidence of having worked with her previous and current employment in the form of a certificate of partnership and a certificate of employment, both dated 26 October 2023, the certificate of employment purports to have been issued by ‘Shenzhen Jincheng Jewelry Co., Ltd.’ while the certificate of partnership purports to have been issued by ‘Shenzhen Luohu District Jiaoya Beauty Center’.
The delegate’s decision record indicates that the Department conducted checks on the documents submitted by the applicant in support of the Student visa application and it appeared she had provided bogus documents, within the meaning of section 5(1) of the Migration Act.
The delegate’s decision record indicates the applicant did not respond to an invitation from the Department to comment on the suspected 'bogus' documents supplied to the Department.
The Tribunal indicated this information was relevant to the application before it as one of the considerations in the policy which the Tribunal could take into account in the exercise of the Tribunal’s discretion included information concerning the applicant’s past and present conduct towards the Department and information suggesting she had provided bogus documents might weigh in favour of affirming the decision to cancel the visa.
The applicant indicated she wanted to respond at the hearing and indicated she did not know what forged documents the delegate was referring to in the decision. She said her previous representative told her the delegate would not accept the documents because they were all dated on the same date. She said she had approached the companies asking them to produce certificates at the same time and that is why they bore the same date.
As there was limited information before the Tribunal regarding the details of the bogus document the Tribunal places only very limited weight on this consideration in favour of cancelling the visa.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations that apply.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation, and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
According to the applicant’s evidence she held a Bridging visa E and is not liable to detention or removal if her Bridging visa A visa is cancelled. Her Bridging visa E will remain in effect until she is granted a student visa or for 28 days after a further decision is made on her student visa (cl 050.050.512 of Schedule 2 to the Regulations).
The applicant said her concern is the effect of cancelling her visa on her student visa application. She said in her statement that her lawyer has told her that the ‘cancellation decision will have a significant impact on my Student visa application if it is not revoked. I was advised by my legal representative that the Tribunal/Department would look at my previous compliance with visa conditions in assessing my Student visa application.’ No other submissions were made on this point by the applicant or from her representative.
The Tribunal notes that if the Tribunal were to decide not to cancel the visa this would not affect the history of non-compliance. The Tribunal is satisfied there was non-compliance in the manner set out, that is the applicant did work in breach of visa conditions. As such the Tribunal does not accept the impact of the cancellation of this visa on her student visa application is a matter which would weigh in favour of not exercising the discretion. The Tribunal also notes the Student visa was refused following the cancellation of the Bridging visa A under PIC 4020. The reason for refusal does not appear to relate to the cancellation.
In any event while cancellation of the visa might impact the applicant’s ability to meet the criteria form the student visa, those are intended legal consequences of a visa cancellation and arise from the non-compliance with conditions of the visa. As such the Tribunal does not afford those consequences other than slight weight in favour of not cancelling the visa.
The Tribunal affords the mandatory legal consequences of cancellation slight weight in favour of not exercising the discretion to cancel the visa.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The Tribunal notes that this is not a decision on removal. The applicant will not be removed from Australia if the visa is cancelled as she holds a Bridging visa E. Removal is not a consequence of the cancellation of this visa and no international obligations are potentially breached if the visa is cancelled. While the applicant has a daughter in China, she did not suggest that her daughter’s best interest would be affected by the decision.
The Tribunal considers this consideration to be neutral in the applicant’s circumstances.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa under consideration is a Bridging visa, and this requirement does not apply.
Other matters
The applicant requested she be given another opportunity and that she wanted to study. She claimed she came to Australia to get a break but did not claim she was seeking to leave her husband or that this was a reason for remaining in Australia. She said they were separated but kept contact and she was not seeking to stay away from him. The Tribunal does not consider her separation from her husband carries any weight in relation to the exercise of the discretion.
The Tribunal notes the refusal of the Student visa application. The Tribunal does not consider the applicant’s desire for a second chance carries other than neutral weight with respect to the exercise of the discretion.
CONCLUSION
The Tribunal has considered the applicant’s circumstances individually and cumulatively. It is satisfied that there are limited aspects that are favourable to the applicant with respect to the exercise of the discretion. The Tribunal is not satisfied that the reasons she has put forward for failing to comply with the visa conditions were outside her control. The Tribunal is also mindful of the seriousness of breaching a visa condition, including with respect to working in contravention of visa conditions. It notes that the cancellation of the visa is the intended consequence of breach of the relevant condition.
Overall, the Tribunal considers that there are limited aspects favourable to the applicant and these do not outweigh the reasons to cancel the visa.
Considering the circumstances, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Simone Burford
Deputy President

[2024] AATA 3566

20 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction