Wang (Migration)

[2022] AATA 98

Wang (Migration) [2022] AATA 98 (12 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shibo Wang

CASE NUMBER:  2111621

HOME AFFAIRS REFERENCE(S):          BCC2021/1372642

MEMBER:Kira Raif

DATE:12 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2022 at 2:24pm

CATCHWORDS
MIGATION – cancellation – Skilled Independent (Temporary) (Class SI) visa – Subclass 189 (Skilled – Independent) – bogus documents provided with visa application – bank records and relationship statements to support claimed de facto relationship – forensic examination showed address did not match the one officially linked to that account – application prepared by agent with applicant’s knowledge and complicity – discretion to cancel visa – applicant would have been eligible for visa without claimed relationship – study, work. application for professional membership, and financial and social ties – physical health condition – hardship if visa cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 99, 103, 107, 109(1), (2)
Migration Regulations 1994 (Cth), r 2.41

CASES
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 (the Act).

2. The applicant is a national of China, born in March 1988. He was granted the Skilled visa in November 2016. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 January 2022 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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

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

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

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance particularised in the s.107 notice was non-compliance with s. 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for the Skilled visa on 1 July 2016. The application included Ms Sijia Song as the applicant’s de facto partner. The applicant stated in his application that he met Ms Song in April 2014 and they commenced cohabitation as a de facto couple in March 2015. In support of the claimed relationship, the applicant provided

   -several bank records from Commonwealth Bank issued in the name of Ms Song and showing addresses at Rhodes, Epping and Forest Lodge,

   -an unsigned relationship statement,

   -an unsigned and undated statement purportedly prepared by Ms Song’s mother.

10. The applicant completed a declaration on the form that he had read and understood the information provided in the application and that the information was complete and correct in every detail on the form and in attachments.

11. The applicant and Ms Song were granted the visas in November 2016. Following the grant of the visas, the Department conducted a forensic examination of the above evidence which determined that the residential addresses shown on the bank records did not match the residential addresses officially linked and registered to those documents. The delegate concluded the bank statements in the name of Ms Song were bogus documents.

12. In his statement in response to the NOICC the applicant notes that he was entitled to sufficient points to gain the pass mark. The applicant states that he met the migration agent Mr Chen and realised they were from the same area in China. The agent told the applicant he could apply ‘with the so-called de facto spouse’ in order to meet the visa conditions and he trusted the agent. The applicant states that he provided only genuine documents to the agent and then the agent took him and the ‘so called de facto spouse’ Ms Song for some photographs and he had no further contact with Ms Song. The applicant states that after he received the NOICC, he regretted the decision to cooperate with the ‘ethically compromised’ migration agent. He states that he did not check the documents submitted with his application and refers to his lack of knowledge concerning the Australian laws. The applicant states that he now realises his mistake. The applicant addressed the discretionary considerations.

13. In oral evidence to the Tribunal the applicant repeated that evidence, stating that he found the agent and he was ‘young and stupid’ and trusted the agent. The applicant states that he was stressed mentally and financially and so he rushed and did not think things through. The agent told him that if he included Ms Song, he would not have to pay any fees. The applicant states that the documents he provided to the agent were genuine.

14. The applicant’s evidence is that he did not have a relationship with Ms Song. The Tribunal finds, having regard to the Department’s forensic report as described in the primary decision, that the bank records are bogus documents because they have been altered by a person without authority. The Tribunal finds these are bogus documents within the meaning of s. 5 of the Act. The Tribunal finds that the applicant gave, presented or provided to an officer or the Minister, bogus documents or caused such documents to be so given, presented or provided. The Tribunal acknowledges the applicant’s evidence that he did not himself prepare the bogus documents but the Tribunal considers that under the Act, the applicant bears the responsibility for his application even if the paperwork was completed by another person. 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?

15. 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).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. They are:

    The correct information

17. The correct information is that the applicant did not have a de facto relationship (or any other relationship) with Ms Song at the time the application was made. The correct information is that the applicant and Ms Song did not live together.

    The content of the genuine document (if any)

18. The genuine documents would not evidence cohabitation between the applicant and the secondary applicant and would not evidence a relationship between them.  

    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

19. The applicant claims that he did not rely on the partner points in achieving the pass mark and so did not need to include the secondary applicant in his application. The Tribunal accepts that this is so. However, having made the decision to include Ms Song in his application, the applicant did provide information that was false or misleading and it was false or misleading in a material particular because it was relevant to the assessment of Ms Song’s eligibility to meet the secondary criteria for visa grant. Thus, the provision of that information would have been relevant to the assessment of PIC 4020.

20. The issue here is not whether the applicant needed to provide the incorrect answers and bogus documents to meet the visa criteria but whether, having done so (and it is not in dispute that he had done so), the decision to grant the visa was based on that information. In the Tribunal’s view, that incorrect information and bogus documents were relevant to the assessment of PIC 4020 and, possibly, broader considerations of the applicant’s character for the purpose of s. 501. As such, the Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

21. In his response to the NOICC and evidence to the Tribunal the applicant states that his application was prepared by a migration agent and he was unaware of the documents that were provided until receiving the NOICC. The applicant states that the agent, Mr Chen, informed him that he could apply for the visa with a de facto partner and reapply if he was not successful. The applicant states that Mr Chen came from the same city and he trusted the agent. The applicant states that the agent took him to take photographs with Ms Song but he had no further contact with her. The applicant refers to his youth, inexperience and lack of knowledge of the law and states that he regrets the decision to engage with Mr Chen who was unethical.

22. The Tribunal finds the applicant’s claims unpersuasive. The Tribunal is prepared to accept that the applicant received assistance when making his visa application and may have followed the advice of Mr Chen. However, the applicant’s evidence makes it clear that he was aware that the application included a de facto partner Ms Song and the applicant does not claim he did have a de facto or any other relationship with her. That is, the agent informed the applicant, and the Tribunal is satisfied that the applicant was aware, that his application included false information. The applicant refers to the agent being unethical but his evidence makes it clear that the applicant himself was well aware of the fraud, had authorised it and was therefore complicit in it. The applicant was informed by the agent of the relationship claim that was made in the application, he had participated in the taking of photographs with Ms Song as evidence of the claimed relationship and he was well aware that the relationship did not exist. Thus, the Tribunal does not accept the applicant’s claim (if that is what the applicant indeed claims) that it was only the agent’s unethical conduct that resulted in the breach. Whether or not the applicant signed the contract with Mr Chen, he permitted Mr Chen to lodge the application which the applicant knew contained false claims.

23. Neither does the Tribunal accept that the applicant was too young and inexperienced to understand what was being done. No particular knowledge of the law is required to recognise that the application contained false information. This is not the case where the applicant did have some form of relationship with Ms Song but misunderstood the meaning of the term ‘de facto’. In this case, there was clearly no relationship between the applicant and Ms Song and no misunderstanding as to that fact. The applicant may not have appreciated the consequences of his actions but in the Tribunal’s view, he was not too young and lacking knowledge of the law to understand what was being done.

24. The Tribunal finds that the applicant himself was fully aware of what was being done and gave his consent to the false information about the de facto relationship being included in the application. He did so primarily for financial gain. The Tribunal finds that in such circumstances, the applicant was cognisant of, and complicit in, the fraud.

    The present circumstances of the visa holder

25. The applicant provided evidence about his present circumstances in his response to the NOICC and additional evidence is before the Tribunal.  

26. The applicant refers to the length of his stay in Australia and the study he has completed. The applicant provided to the Tribunal evidence of his participation in the CPA program. The applicant refers to his professional qualifications and standing as an accountant. The applicant told the Tribunal that he has completed the CPA program and needs to submit evidence of work experience in order to obtain the CPA certification. The applicant states that he is an associate member and will have better job opportunities once he becomes a CPA.

27. The Tribunal accepts that the applicant first travelled to Australia to undertake study and that he has successfully completed his course and the CPA program. The Tribunal also accepts that during his lengthy stay in Australia the applicant has formed financial, social, employment and other ties in this country. The applicant states that if he is required to leave Australia as a result of his visa being cancelled, it would be as if all he has done here was in vain. The Tribunal acknowledges that the applicant may feel that way and accepts, generally, that if the applicant was to depart Australia as a result of the cancellation of his visa, many of his ties in Australia may be severed.

28. The applicant refers to his past employment in Australia and outlines his employment responsibilities. The Tribunal accepts that evidence. The applicant told the Tribunal that since returning from China in late 2019, he has not worked but has concentrated on his study. The applicant states that he has not looked for work as he does not have a permanent visa but he needs to start working in order to support himself.

29. The applicant provided to the delegate evidence relating to the purchase of land, a copy of a building agreement and loan documents. The applicant told the Tribunal that  he lives in the property he has built. The Tribunal accepts that evidence and accepts that the applicant has strong financial links in this country. The applicant told the Tribunal that if his visa is cancelled, and if he cannot get a job, he would be unable to keep the property and may have to sell it. The Tribunal is prepared to accept that if the applicant’s visa is cancelled and if he does not work in Australia, that is likely to affect his ability to keep the property in Australia and that as a result, the applicant may have to sell the property. There is little probative evidence before the Tribunal as to whether the applicant is likely to gain or lose financially from such sale.

30. The applicant states in his submission to the delegate that that he had only returned to China twice since arriving in Australia and had severed his links with China. He claims he has no remaining friends and that he has built a social circle in Australia. The applicant states that if he is returned to China, he would have no housing and would be unable to enter the workforce as his skills are designed for the Australian companies. The Tribunal accepts that the applicant may have few links to China although the Tribunal is not satisfied that the applicant would be incapable of re-establishing such links in the future or that he would be unable to make new friends. As noted above, the Tribunal accepts that the applicant has strong social and other links in Australia, and such links are stronger than his links in China, but the Tribunal is of the view that the applicant will be able to re-establish himself in China, even if it takes time. The Tribunal acknowledges that doing so is likely to cause hardship to the applicant.

31. The Tribunal also accepts that it may be difficult or impossible for the applicant to work as an accountant in China, as he holds Australian qualifications that may not be recognised in China. The applicant has not provided satisfactory evidence on whether he would be able to obtain different type of employment, for example, in a related industry where knowledge of Australian accounting laws and practices may be of benefit, or whether he can obtain further qualifications in China. The applicant claims that given his age (he is 33), he would face discrimination and given his lack of Chinese experience and certification, he would be unable to find a job. However, the applicant also told the Tribunal that he has not looked for work in China, had not applied for any jobs and has not tested the job market. The applicant’s evidence that he would not be able to find a job in China is thus not based on any probative evidence and the Tribunal is not prepared to accept the applicant’s claims without probative basis.

32. The applicant told the Tribunal that he has high blood sugar level. The treatment consists of diet and medication on an ongoing basis. The Tribunal is prepared to accept that evidence but there is no obvious reason why the applicant could not continue with the same treatment in China and the applicant concedes that he could probably get similar medicine in China. The applicant states that air quality in China is poor and it may affect his condition. In the absence of any medical evidence (or evidence from any qualified person or health professional) the Tribunal is not prepared to accept that the applicant’s health would be adversely affected if he was to live in China.

33. The applicant told the Tribunal that he has exhausted all his savings and needs to work to be able to survive. He states that he cannot find a job unless he holds a permanent visa. The Tribunal acknowledges that it would be considerably more difficult for the applicant to get a job in his field if he does not hold a substantive visa (although he may be able to get other jobs). Overall, the Tribunal accepts that considerable hardship would be caused to the applicant if he is required to return to China as a result of his visa being cancelled.

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

34. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

1. The applicant confirms that he did not have a de facto relationship with Ms Song. The primary decision record indicates that he stated on the application form that he was in a de facto relationship with Ms Song from 2014. The applicant also included with his application relationship statements, outlining his relationship with Ms Song. The Tribunal finds these answers were incorrect and the information in the statements are also taken to be answers in accordance with s. 99 of the Act. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided and that he had not complied with s. 101 of the Act. The Tribunal acknowledges the applicant’s evidence that the form and the documents were prepared by his agent and not himself. Given the applicant’s evidence that he was aware that Ms Song was included in his application as a de facto partner (indeed, the applicant’s cooperation in obtaining social photographs with Ms Song to evidence the relationship), the Tribunal does not accept the applicant’s evidence about his lack of involvement in the fraud. The Tribunal finds that the applicant had not complied with s. 101 and that is another instance of non-compliance.  

   The time that has elapsed since the non-compliance

2. The application was made in July 2016 and five and a half years passed since the non-compliance. The Tribunal acknowledges it is not an insignificant period.

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

3. There are no known breaches of the law.

   Any contribution made by the holder to the community.

4. The applicant refers to the contribution he has made through employment and the payment of taxes, donations and other social activities. the applicant states that he is law-abiding. The Tribunal accepts his evidence.

5. 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.

6. The visa held by Ms Song would be affected.

   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.

7. There are no children who would be affected by the cancellation of the visa.

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

8. The applicant has no family in Australia and the Tribunal finds that the family unity obligations would not be breached by the cancellation. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.

   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.

9. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements he may have acquired as an Australian permanent resident. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore. If the applicant does not hold a permanent visa, he cannot act as a sponsor for his parents.

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

10. In his written submission in response to the NOICC the applicant states that he regrets the choice of not choosing a ‘law-abiding migration agent’ and he claims he regrets his decision to cooperate with an ‘ethically compromised migration agent’. As noted above, the Tribunal has formed the view that the applicant was complicit in the fraud and engaged in it willingly and knowingly, so the blame cannot rest only with the agent. The applicant was fully aware that Ms Song was included in his visa application as a de facto partner, he knew such a relationship did not exist and he had taken positive steps to perpetrate the fraud by taking photographs with Ms Song to keep up the pretence of having a relationship with her. In such circumstances, the applicant’s suggestion that it was the agent’s fault for the provision of false information and bogus documents is, in the Tribunal’s view, entirely unwarranted. The applicant could have simply refused to engage in the fraud. He made the decision not to.

11. The applicant provided character references and the Tribunal accepts the personal opinions expressed in these documents.

12. The applicant refers to the difficulties in finding a job in China. The applicant refers to his health condition and states that he cannot do other jobs requiring long hours. He refers to having spent time and all his savings in Australia and lack of opportunities in China. These matters are addressed above. The applicant states that his parents had spent their lives’ savings to bring him to Australia and he does not know what they would do if he cannot remain in Australia and if he cannot sponsor his parents. The applicant states that he has spent many years in Australia and wants to have a second chance to remain in Australia. the applicant has provided a number of character references with his application and additional to the Tribunal. The expressed regret about his actions. The Tribunal acknowledges that evidence. As noted above, the Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant and his family.

13. The applicant’s representative submits that the applicant has been truthful in his evidence to the Tribunal, there are no other instances of any breach and since the non-compliance he has been truthful with the Department and the Tribunal. The representative submits that the agent has been unethical and had misled the applicant. At the time the applicant was a fresh graduate and did not know the visa process and was under pressure due to various factors. These matters are addressed above.

14. The representative submits that if the issue was ‘discovered’ earlier, the applicant could have withdrawn the application and lodged another application which could have been successful and the applicant missed that opportunity. The representative refers to another case with similar circumstances where the person was able to withdraw the application. The Tribunal considers that submission misguided because this is not the case where the applicant was unaware of what his application contained. Even if the applicant did not see and was not involved in the preparation of the bogus documents, he was well aware that the application involved false claims and thus it is not appropriate, in the Tribunal’s view, to refer to the applicant ‘discovering’ the content of the application.

15. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s. 101 of the Act and that there are grounds for cancelling the visa.

16. The Tribunal has formed the view that there are factors that are against the cancellation. Most significantly, the Tribunal places weight on the fact that the applicant has been residing in Australia for a number of years, is well settled here and has formed extensive ties. The Tribunal places significant weight on the fact that the applicant’s work as an accountant (and his recent completion of the CPA program) appear to be country-specific and his skills are unlikely to be easily transferable to another country, so the applicant may not be able to work as an accountant or in a similar occupation in China. The Tribunal accepts the applicant is a skilled person and had been working in his chosen field prior to his most recent study. The Tribunal accepts that considerable hardship would be caused to the applicant if he has to return to China, not only because of limited employment opportunities, but other factors such as housing, the possible effect on his health and lack of social network in China. The representative submits that the applicant would not meet visa requirements for other visas and would not have the opportunity to obtain another visa in Australia and he would ‘lose everything’ if his visa is to remain cancelled and the Tribunal accepts that  if the visa remains cancelled, there is a strong likelihood that  the applicant may have to depart Australia. The Tribunal accepts the applicant’s desire to remain in Australia and the fact that if his visa is cancelled, his parents would be unable to migrate to Australia. All these factors would contribute to the hardship that the applicant and his family would experience as a result of the cancellation and weigh strongly against the cancellation.

17. The Tribunal has found that the cancellation of the visa would not be in breach of Australia’s international obligations. The Tribunal acknowledges that the applicant has made some contribution to the community. The Tribunal accepts that  over five years passed since the non-compliance.

18. However, in the circumstances of this case, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred. As noted above, the Tribunal has found that the applicant had deliberately engaged in fraudulent conduct for financial gain. Even if he was not personally involved in the preparation of bogus documents and did not know precisely what documents were included in his application (and in the Tribunal’s view, it was the applicant’s responsibility to check), he knew that Ms Song was included as his de facto partner and that such relationship did not exist. He also did contribute to the preparation of bogus documents by taking social photographs with Ms Song as evidence of the non-existent relationship. The Tribunal has found that the applicant was well aware of the fraud and was a willing participant in it.

19. The Tribunal has rejected the applicant’s evidence that he would have been entitled to the visa irrespective of Ms Song and that he would have been able to gain the pass mark. While the applicant may have been granted the visa if Ms Song was not included in the application, once he did include her in his application, provisions such as PIC 4020 were engaged. It is significant, in the Tribunal’s view, that the decision to grant the visa was based on incorrect information and bogus documents.

20. The Tribunal accepts the applicant’s evidence that Ms Song’s visa cancellation is independent of the present process and her entitlement to the visa should not affect the outcome of the present application. However, the Tribunal has decided in this case that, given the applicant’s own involvement in the fraud and the fact that the decision to grant the visa was based, in part, in bogus documents and incorrect information, the applicant’s own circumstances are such that the visa should be cancelled.

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

    DECISION

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

    Kira Raif
    Senior Member