Wang (Migration)

[2022] AATA 2579

Wang (Migration) [2022] AATA 2579 (27 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fanqi Wang

REPRESENTATIVE:  Mr Yanwen Gao (MARN: 2016495)

CASE NUMBER:  2111868

HOME AFFAIRS REFERENCE(S):          BCC2021/1286728

MEMBER:Kira Raif

DATE:27 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 27 July 2022 at 1:30pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – member of family unit of primary applicant – de facto partner – bogus documents provided with visa application – phone bills and bank statements – verification checks – discretion to cancel visa – reliance on partner and unregistered agent – possibly genuine relationship now ceased – timing of beginning and end of relationship in relation to visa requirements – mental health diagnosis and treatment – new relationship and newborn child – long residence and business and social links – COVID prevalence and restrictions in home country – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(b), 103, 107, 109(1)
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 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China born in July 1991. She was granted the Skilled visa in October 2016. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision. 

3. The applicant appeared before the Tribunal on 27 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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.

6. 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?

7. 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.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in May 2016 Mr Bo Zhang made an application for a Skilled visa and the applicant was included in that application as Mr Zhang’s de facto partner and a member of his family unit.  It was stated on the application form that the applicant and Mr Zhang commenced a de facto relationship in April 2015 and the applicant’s personal details were included in the application.

9. The applicant provided a number of documents in support of her claimed relationship with Mr Zhang. These included

   a.14 Vodaphone bills sent to the applicant at a Kingsford address between May 2015 and June 2016

   b.Commonwealth bank statements in the names of the applicant and Mr Zhang, for the period from April to September 2015, also addressed at the Kingsford address.

10. The applicant and Mr Zhang were granted the Skilled visas in October 2016. The primary decision record indicates that following the visa grant the Department carried out verification checks concerning the above documents and it was determined that the addresses on the bank statements and phone bills did not match to the addresses officially linked and registered to these documents. The delegate concluded that the addresses had been altered by a person without authority and that these were bogus documents.

11. In her response to the NOICC the applicant provided several documents concerning her relationship and present circumstances, which are addressed more fully below. With respect to her relationship with Mr Zhang, the applicant states that their relationship began in April 2015. The applicant states that her agent Peng, who prepared the Skilled visa application, told her that she met the de facto partner criteria and could be included in the application. Peng requested bank records and phone statements. The applicant states that she did not change addresses on these documents and Peng told her it would not be an issue as the relationship has been in existence for 12 months. The applicant states that Peng created the Immi account to which she did not have access. The applicant states that she divorced Bo Zhang in May 2018 and since then commenced another relationship.

12. In her written statement to the Tribunal dated 19 July 2022 the applicant also states that she and Bo Zhang met through friends and gradually developed a relationship. She states that Bo proposed to her and proposed the idea of applying for a visa, so they approached an agent to help with the application. The applicant states that the agent was Bo’s friend, they sent all the information to the agent and she did not know that he would ‘tamper’ with the information. The applicant states that her visa should not be cancelled because Mr Zhang’s visa was not cancelled and she should not be blamed for the provision of false documents. She states that the agent was not her contact and she had no dealings with the agent except to send the documents and it was Mr Zhang who handled everything and she gave genuine documents to the agent. The applicant states that she did live with Mr Zhang. The applicant states that she had tried to contact the agent but could not contact him since 2020 and later changed her contact details to access the Immigration account. She realised that the agent did not use his own details when lodging the application but he did lodge the application.

13. The applicant refers to her lack of knowledge, being busy and ‘gullible’ in relying on an unscrupulous person. She states that she and Mr Zhang were genuinely in love and wanted to get married but divorced due to the pressure from his parents.

14. In her oral evidence to the Tribunal the applicant also stated that she did not personally submit the documents as they had used an agent. It was only when they received the letter from the Department that they realised what documents had been submitted. The applicant states that she regrets relying on an unregistered and unscrupulous agent when submitting her application.

15. The applicant confirmed in her oral evidence to the Tribunal that she did not have a joint bank account with Mr Zhang and that her phone bills were sent to an address in Burwood. Having regard to the information in the primary decision record and the applicant’s evidence, the Tribunal finds that the addresses on the bank statements and phone records had been altered to evidence the applicant and Mr Zhang living together and the sharing of resources. Examination of these documents showed that the official addresses shown on these documents were different. This is consistent with the applicant’s own evidence that she did not change the addresses on her phone bills and bank statements when she commenced the relationship with Mr Zhang. The Tribunal finds that the documents had been altered by a person without authority. The Tribunal finds that these are bogus documents within the meaning of s. 5(b) of the Act. The Tribunal acknowledges the applicant’s evidence that it was the agent who prepared these documents without her knowledge and authority but the Tribunal is of the view that the Migration Act renders the applicant responsible for the content of her application and the accompanying documents, even if it was completed by another person.

16. The Tribunal finds that there was non-compliance with s. 103 of the Act 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 reg 2.41 of the Regulations. They are:

    The correct information

19. This is not relevant in the present case.

    The content of the genuine document (if any)

20. The genuine documents would not be addressed to the applicant and Mr Zhang at the same address and would not evidence her cohabitation (and relationship) with Mr Zhang. The applicant explained to the Tribunal that she did not know she had to change the address and it was only once the agent ‘reminded’ them that they had changed the address. The applicant states that she did not change the Vodaphone bills because she was receiving these electronically and she used another address close to work for the bank statements because it was ‘easier’. The applicant confirms she did not have a joint bank account with Mr Zhang.

    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. Information in the primary decision record indicates that the applicant sought the Skilled visa on the basis of meeting the secondary criteria. There is no suggestion that she met the primary criteria for visa grant. The applicant claimed to be a de facto partner of the primary visa applicant Mr Zhang and she does not appear to have met any of the alternative definitions of the term ‘member of the family unit. That is, the applicant’s relationship with Mr Zhang was central to her eligibility for the visa.

22. The Tribunal has found that the applicant provided bogus documents to evidence her cohabitation with Mr Zhang and the nature of their financial arrangements. That evidence was relevant to assessing whether the applicant was the de facto partner of Mr Zhang and, therefore, to her eligibility to meet the secondary criteria for visa grant. 

23. The applicant would have also been required to meet PIC 4020 and it is not in dispute that the bank records and Vodaphone bills are bogus documents. If this was known to the decision-maker, it may have affected the assessment of PIC 4020.

24. The Tribunal finds that the decision to grant the visa was based, in part but to a significant extent, on bogus documents.

    The circumstances in which the non-compliance occurred

25. These are addressed above. The applicant claims, essentially, that she did have a de facto (and later a married) relationship with Mr Zhang and the agent told her she qualified for the visa on the basis of that relationship. The applicant states that she gave genuine documents to the agent but had no information about what documents the agent had submitted and no access to the Immigration site and it was her husband who communicated with the agent.

26. The Tribunal has concerns about the applicant’s relationship with Mr Zhang. It is of significant concern to the Tribunal that the relationship lasted for precisely as long as it took the applicant to obtain the visa. She told the Tribunal that the relationship started 12 months before the visa application was made (which was the minimum requirement for the de facto relationship) and ended at the end of 2016, that is, almost immediately after the visa grant. The applicant outlined the reasons for the breakdown of the relationship, such as pressure from the family and interference from Mr Zhang’s mother, but such concerns would have existed throughout the relationship and despite these, the applicant claims to have maintained the relationship with Mr Zhang for as long as it took her to obtain the visa. The applicant states it was a ‘pure coincidence’ that the relationship ended once her visa was granted but the Tribunal finds the timing of the relationship problematic. There is also limited contemporaneous documentary evidence about the relationship before the Tribunal and Mr Zhang was not available to give evidence about the relationship.

27. Nevertheless, the Tribunal acknowledges the applicant’s evidence that she and Mr Zhang did have a committed relationship, that they planned to get married and were hoping to have a child. The applicant’s evidence is that her parents supported the relationship and had met Mr Zhang in Shanghai and the relationship was also known to Mr Zhang’s parents, who wanted for the couple to have a child. She states that friends were also aware of the relationship.

28. Overall, and despite serious concerns, there is insufficient evidence for the Tribunal to make a positive finding that the applicant was not a de facto spouse of Mr Zhang. It is possible, in the Tribunal’s view, that such a relationship did exist. If that is the case, the Tribunal is mindful that the bogus documents would have been submitted to support the claim of the existing relationship, rather than to alter the nature of the relationship altogether (for example, if the relationship did not exist).

    The present circumstances of the visa holder

29. The applicant provided with her response to the NOICC evidence of her past study in Australia and the Tribunal accepts that the applicant completed study in Australia.

30. The applicant provided evidence of her divorce with Mr Zhang, including a counselling certificate from a Family Counsellor, as well as a psychological report dated June 2021 which indicates that she suffers from depression and anxiety. The Tribunal is prepared to accept that evidence.

31. The applicant provided, in her submission to the delegate, evidence of her relationship with her present partner Mr He and evidence of her pregnancy, stating she is unfit to travel. The Tribunal accepts that evidence.  In her evidence to the Tribunal the applicant refers to the birth of her baby daughter.

32. The applicant provided evidence of her business registration, taxation records and evidence of property ownership. In her submission to the delegate the applicant states that she and her partner have skills that are beneficial to Australia and she refers to the payment of taxes and she told the Tribunal that her husband has a restaurant business and a hair salon. Generally, the Tribunal accepts that the applicant has been living in Australia for a lengthy period and has formed family, social, business and financial links to this country.

33. The applicant provided to the Tribunal, in support of the hearing postponement request, a medical report and a psychological report which indicates that she has been diagnosed with depression and is receiving treatment. The Tribunal accepts that evidence.

34. In her submission to the Tribunal the applicant refers to her and her husband’s study and her husband’s business links in Australia. She states that she is ‘deeply entrenched in the Australian away of life’ and has no criminal convictions. She states that the cancellation of her visa would change their lives as they would have to sell the companies and properties, leading to the emotional hardship and huge financial loss. (The applicant presented no evidence to support her assertion that the sale of any property or business would lead to a financial loss, let alone ‘huge’ loss and the Tribunal does not accept these claims).

35. The applicant refers to the Covid in China, stating that if she displays any symptoms, she may be forced to separate from her child. She refers to quarantine and uncertainty and lack of flights to China, leading to high cost of travel, and the difficulties of finding a ticket to fly to China. The Tribunal is of the view, however, that even if the cancellation of the applicant’s visa is to lead to her departure from Australia (and one does not necessarily equate to the other), the applicant is eligible to seek a Bridging E visa on departure grounds until such time as she is able to depart Australia.

36. The applicant states that her daughter, who was born a month after her visa was cancelled, does not have a visa or passport, stating that due to her own mistake, her daughter will not be able to enjoy the ‘free air’ and rights in Australia. The Tribunal considers such claims to be somewhat vague and unhelpful. The applicant refers to her and her husband’s qualifications and experience and their ability to contribute to Australia and the Tribunal is prepared to accept that evidence.

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

37. 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

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

    The time that has elapsed since the non-compliance

    The application for the Skilled visa was made in May 2016. A little over six years passed since the non-compliance.

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

39. There are no known breaches of the law.

    Any contribution made by the holder to the community.

40. The applicant states that her skills, and those of her partner, are beneficial to Australia. The applicant refers to the payment of taxes. The applicant also provided evidence of her participation in community events and a number of supporting statements from community members. The applicant states that she and her partner manage hair salons which employ Australians. The applicant told the Tribunal about providing masks to the community during Covid. The Tribunal accepts that the applicant has contributed to the community through employment and the payment of taxes and participation in other activities. 

41. 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.

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

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

1. The applicant’s daughter was born after her visa was cancelled and the applicant’s evidence to the Tribunal is that neither she nor her partner were Australian permanent residents or citizens at the time of the child’s birth. Thus, the applicant’s daughter is not an Australian citizen. The applicant told the Tribunal that they have commenced the process of obtaining the Chinese passport for the child.

2. The Tribunal has considered the best interests of the child. The child is very young and in the Tribunal’s view, it is in the best interests of the child to be cared for by both parents but that need not necessarily happen in Australia. While the Tribunal accepts the applicant’s evidence that she prefers to remain in Australia and to raise her daughter in Australia, there is nothing that would prevent the applicant and her partner from returning to China as both are Chinese nationals. As a Chinese national, the child will have access to education, healthcare and other benefits that are available to Chinese nationals. The Tribunal has formed the view that if the child can continue to be cared for by both parents and live in the country of her nationality with access to various services, the child’s best interests would not be adversely affected by the cancellation of the applicant’s visa.

3. The applicant told the Tribunal that her daughter has already made friends in Australia but in the Tribunal’s view, at the age of 9 months, the child would be capable of forming other friendships no matter which country she resides in. The applicant also states that it would be hard for the child to go through such a big change but, again, the Tribunal is of the view that at such a young age, the child would be capable of adapting to a new country and the applicant has not provided to the Tribunal evidence that her daughter has any particular characteristic that would preclude that.

4. The Tribunal has formed the best interests of the child would not be adversely affected by the cancellation of the applicant’s visa.

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

5. The applicant told the Tribunal that if she or her husband gets Covid while in China, she may be separated from her child. Even if that is the case, the Tribunal is mindful that this is a law of general application and the Tribunal does not accept, on the limited evidence before it, that the law or policy would apply in relation to the applicant in a discriminatory way. The Tribunal does not consider this policy gives rise to Australia’s protection obligations. The Tribunal is also mindful that the applicant is eligible to seek a protection visa in Australia if she believes she would face persecution in China. In these circumstances, the Tribunal does not consider that Australia’s non-refoulment obligations arise.

6. The applicant’s spouse is in Australia but does not hold a permanent visa. Neither does her daughter. The Tribunal does not consider that the principles of the family unity would be breached by the cancellation of the visa.

7. The Tribunal finds that Australia’s international obligations would be breached if the applicant’s visa is cancelled.

   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.

8. If the applicant’s visa is cancelled, and unless she is granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. There is nothing to suggest the applicant would be detained indefinitely. The applicant will face restrictions on onshore visa application, due to operation of s. 48, and may be subject to an exclusion period in relation to some future visa applications.

9. The cancellation of the visa would result in the applicant losing some of the entitlements she may have acquired as a permanent resident of Australia and the applicant would also lose her eligibility to the seek Australian citizenship if she is not a holder of a permanent visa. The applicant she cannot sponsor her husband for an Australian visa if her visa is cancelled.

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

10. The applicant provided with her submission to the delegate a number of character references and the Tribunal accepts that those who provided reference believe the applicant to be a good person.

11. The applicant states that it would be too hard to relocate to another country and give up everything they have built up in Australia and get used to the new way of life. The Tribunal accepts that if the cancellation of the visa is to result in the applicant (and the family) having to relocate to China, it may cause considerable hardship to the applicant and her family.

12. The applicant claims in her response to the NOICC that plane travel during Covid and the forced quarantine may impact her pregnancy. As the applicant has now given birth, that submission seems to be less relevant. The Tribunal is also mindful that the applicant is able to seek a bridging E visa to arrange her departure at an appropriate time.

13. The applicant states that it would be difficult for her child to take the long trip to China, if her visa is cancelled, and the child cannot wear a mark, so there is a greater risk. The Tribunal is prepared to accept that evidence.

14. The applicant told the Tribunal that there would be financial hardship if the visa is cancelled as they would have to sell the business and the property and due to the current condition, they would do so at a loss. As noted above, the Tribunal is not prepared to accept that evidence as there is no evidence before the Tribunal about the value of these assets and no evidence that a sale would lead to financial hardship.

15. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave bogus documents with her application, or caused such documents to be given, and that she did not comply with s. 103 of the Act. The Tribunal has found that there are grounds for cancelling the applicant’s visa.

16. The Tribunal accepts that the cancellation of the visa could cause significant hardship to the applicant and her partner, given the length of their stay in Australia and the degree of settlement in this country. If the cancellation of the visa is to result in the applicant and her family leaving Australia, the Tribunal accepts that they would have to sell their property and business, uproot the family and their child and re-establish themselves in China where they had not lived for many years. The Tribunal accepts that the applicant and her partner contribute to the community. There would also be significant repercussions for the applicant’s future visa options if her visa is cancelled and it is unlikely that her partner would be able to be granted the Partner visa.

17. The Tribunal has determined that the cancellation of the visa would not be in breach of Australia’s international obligations and would not adversely affect the best interests of the applicant’s child.

18. The Tribunal places significant weight on the circumstances in which the non-compliance occurred. For the reasons stated above, the Tribunal has formed the view that it is possible that the applicant and Mr Zhang did have a relationship at the time of their visa application. That is, this is not the case where the evidence of the relationship was completely fabricated to enable the applicant to be granted the visa to which she was not entitled. While evidence of the relationship appears to have been created to address some aspects of the relationship such as cohabitation and financial aspects, such evidence was created to strengthen the claims of the relationship, rather than to fabricate the existence of a relationship that did not exist.

19. The Tribunal is also prepared to accept the applicant’s evidence that she did not personally alter the documents and was unaware of these as she entrusted the process to her partner and the agent. That is, the applicant was not aware of the fraud and not complicit in it. While that does not absolve the applicant when determining that there was non-compliance with s. 103 of the Act, it is a relevant consideration in exercising discretion.

20. In the circumstances where there is a possibility of a genuine relationship between the applicant and Mr Zhang as stated in the application, and where the Tribunal accepts the applicant’s evidence that she was not involved in, nor aware of, the fraud, the Tribunal has decided that the circumstances that are against the cancellation – most notably the hardship that would be caused to the family by the cancellation of the visa – outweigh those that are in favour of the cancellation.

21. 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 not be cancelled.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif
    Senior Member