Wang (Migration)

[2021] AATA 4545

Wang (Migration) [2021] AATA 4545 (24 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanzhe Wang

CASE NUMBER:  2109549

HOME AFFAIRS REFERENCE(S):          BCC2018/4767295

MEMBER:Kira Raif

DATE:24 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2021 at 8:56pm

CATCHWORDS
MIGRATION – cancellation – Skilled Nomination (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nomination) – incorrect answers and bogus documents in visa application and supporting statements – spouse or de facto partner – bank, tenancy and utility statements – incoming passenger cards stated another person and address – discretion to cancel visa – incorrect information about relationship conceded but claim of no knowledge of contents of documents – complicity – done as favour to good friend – may have been granted visa without claimed relationship – consequential cancellation of claimed partner’s visa – current relationship with Australian citizen, and children from relationship – eligibility to apply for partner visa and possible effect of public interest criterion – best interests of children – no evidence of financial hardship and limited evidence of mental health and treatment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101, 103, 107, 109(1), 501
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, criterion 4020

CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of China, born in December 1990. He was granted a Skilled Nominated visa on 20 October 2015. In June 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. 101 and 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 20 October 2021 and 24 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ms Ding. 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 identified and particularised in the s.107 notice was non-compliance with ss. 101 and 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 Nominated Subclass 190 visa on 28 June 2015. In that application the applicant included Ms Qilei Deng as a de facto partner and a member of his family unit. On the application form the applicant referred to Ms Deng as spouse / de facto and provided her personal details. The applicant stated that the de facto relationship started in December 2014. The applicant completed a declaration that the information he gave on the form and in attachments was complete and correct in every detail.

10. The primary decision record indicates that in support of the claimed relationship with Ms Deng the applicant included in the application

    -a number of ANZ bank statement for the period from April 2015 to August 2015 addressed to an address at Ray Road, Epping,

    -a lease agreement for that same address, naming the applicant and Ms Deng as tenants, for the period from December 2014 to December 2015 and signed by both partners in December 2014,

    -Ms Deng’s Commonwealth bank statements for the period between February 2015 and August 2015 addressed to Ray Road, Epping, 

    -two Energy Australia statements issued to the same address at Epping in the name of the applicant and Ms Deng for the period from March to August 2015.

11. The applicant and Ms Deng were granted the Skilled visas on 20 October 2015. The primary decision record indicates that following the visa grant, the Department conducted checks on the presented documents. It was determined that the residential addresses shown on the ANZ bank statements did not match the residential address linked to, and registered to these documents and the delegate concluded that the ANZ bank statements were bogus documents.

12. The delegate notes that the applicant included with the application a statement outlining his relationship with Ms Deng. In it, the applicant stated that in December 2014 he moved to Sydney and started to live with Ms Deng at the Epping address. Ms Deng also provided a statement with the same information.

13. The primary decision record indicates that in his Incoming Passenger Card (IPC) in April 2015 the applicant gave an address in Western Australia that was different to the address shown on the ANZ bank statements and he nominated a different person as his contact person. The primary decision record indicates that for all his arrival and departures, the applicant showed an address in Perth. Ms Deng’s arrivals and departures all occurred from Sydney. The couple did not travel overseas together. The delegate concluded that they never lived at the same address.

14. In his response to the NOICC the applicant concedes that he gave incorrect information in his visa application. The applicant states that when he was making the visa application, he was approached by Ms Deng to include her in the visa application and he thought he was doing her a favour as she was under pressure to remain in Australia. The applicant claims that he acted out of good intentions and did not know about the amended bank statements, with the relationship evidence being provided by Ms Deng. In his oral evidence to the Tribunal the applicant confirmed that he did not have a relationship with Ms Deng and that documentary evidence of his relationship with Ms Deng (such as a lease agreement and joint records) are ‘not true’.

15. The applicant’s evidence confirms that he did not have a de facto or spousal relationship with Ms Deng and was simply ‘doing her a favour’. The Tribunal finds that the applicant’s answer on the application form when he claimed Ms Deng to be his de facto partner since 2014 was incorrect. The Tribunal further finds that the information the applicant provided in the supporting statements, in particular the two “relationship statements” in his name and Ms Deng’s name when they claimed to have been in a de facto relationship, constitute incorrect answers. The Tribunal finds that the answers in which the applicant claimed to have been residing with Ms Deng were also incorrect. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

16. The Tribunal further finds that the bank records showing the applicant and Ms Deng living at the same address Epping to be bogus documents because that was not the address recorded on the original documents and the Tribunal has formed the view that these documents had been altered by a person who had no authority to do so. They are therefore bogus documents within the meaning of s. 5(1)(b) of the Act. The Tribunal finds that the applicant gave, or caused to be given, bogus documents and that he did not comply with s. 103 of the Act.

17. The Tribunal finds that there was non-compliance with s. 101 and 103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. 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).

19. 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

20. The correct information is that the applicant and Ms Deng were not in a spousal or de facto relationship during the period claimed in the application and did not live together during the period claimed. In his response to the NOICC and evidence to the Tribunal the applicant confirms that he had not lived at the Epping address and never had a de facto relationship with Ms Deng.

    The content of the genuine document (if any)

21. The genuine documents would not be addressed to the address shown on the presented documents and would not show that the applicant and Ms Deng were cohabiting at the same address.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

22. The applicant claims in his response to the NOICC and evidence to the Tribunal that the incorrect information was provided for Ms Deng’s benefit and he would have still been eligible for the visa as he achieved the points score and he would have met other visa criteria. The applicant submits that since the information was not used (or needed) for his own benefit, this factor should be viewed beneficially. The Tribunal considers that submission misguided because the applicant did submit bogus documents and answered the questions on the form in a way that incorrect answers were given. When doing so, PIC 4020 would have been engaged and it would have been open to the decision-maker to find that the applicant gave bogus documents and information that was false or misleading in a material particular.

23. It may be true that if the applicant did not include the secondary applicant in his application, he would have been granted the visa anyway because he was able to achieve the pass mark but once the applicant did make the decision to include Ms Deng in his application and to make claims about the relationship, requirements such as PIC 4020 became more relevant. The false claims may have also been relevant to the assessment of the applicant’s overall character for the purpose of s. 501.

24. It is not for this Tribunal to determine whether the applicant would have been granted the visa if the correct information was known. However, the Tribunal is of the view that once the secondary applicant was included, the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

25. The applicant claims, essentially, that Ms Deng was a good friend and asked him to include her in his own visa application and he agreed to do her a favour and thought he was doing a good deed. He also told the Tribunal that in return for including Ms Deng in his application, she paid the application fee. The applicant claims in his response to the NOICC and his oral evidence to the Tribunal that he was young at the time, wanted to help others and did not appreciate the seriousness of his actions and did not think about these things too much. The applicant claims that he did not know that the other party would submit bogus documents. The Tribunal finds that explanation problematic because the applicant would have been well aware that he was not in a de facto relationship with Ms Deng and he knew that Ms Deng was included in the application as his de facto partner. That is, the applicant knew that the information he was providing in his application was false and thus the Tribunal does not accept the applicant’s evidence that he did not know that bogus documents would be submitted. Whether the issue is false claim of the relationship or bogus documents to support that  claim, the applicant was well aware of the fraud. It is unclear to the Tribunal why the applicant believed that doing a favour to a friend justified the provision of deliberately false information to the Australian immigration authorities. As for the applicant’s claimed lack of social experience and young age, the Tribunal does not consider that at the age of 25 the applicant was incapable of understanding that deliberately providing false information in a visa application was inappropriate. The Tribunal is of the view that the applicant was (and should have been) fully aware of the seriousness of his actions.

    The present circumstances of the visa holder

26. The applicant claims that he is in a relationship with an Australian citizen and has two children from that relationship, born in October 2016 and September 2018. His partner works as a registered nurse while he is the primary carer for their two children. The applicant presented evidence including his children’s passports and birth certificates, evidence of his partner’s employment and a statement from his partner outlining the hardship that the family would face if het applicant’s visa is cancelled and if he is required to leave Australia.  The Tribunal accepts that evidence.

27. In his submission to the Tribunal of 17 November 2021 the applicant presented a medical report and states that he has been diagnosed with depression as a result of the cancellation of his visa and that it has had a tremendous effect on his mental health. The Tribunal accepts the professional opinion in the medical report but finds it of limited value for the following reason. in oral evidence, the applicant told the Tribunal that he saw his GP once and was given a mental health care plan. The GP recommended for him to see a psychologist but he has not seen one yet. He has not seen the GP again. That is, even though the applicant claims to have been diagnosed with depression and to have been affected mentally, he only saw his GP once and had no further interactions with any health professionals. It seems that, having obtained the medical certificate (which was issued on the basis of a single visit to the GP), the applicant sought no further help and is not receiving any treatment for his condition. In such circumstances, even if the Tribunal were to accept that the applicant suffers from depression, the Tribunal does not consider the condition is of such nature or severity as to cause any hardship to the applicant or others.

28. The applicant told the Tribunal that he studied accounting in Australia and accounting in China is different so it would be hard for him to get a job in accounting. The Tribunal accepts that if the cancellation of the visa will result in the applicant having to leave Australia, the applicant may not be able to work as an accountant in China without further qualifications and this may cause some hardship. However, the applicant told the Tribunal that he also ran a business (a barber shop) in Australia but it closed due to Covid. The applicant’s ability to operate a business in Australia that  is entirely unrelated to his field of study suggests that the applicant is capable of working in other fields and is not limited to the field of accounting, even if he were to return to China and if he is unable to work as an accountant with his Australian qualifications. In these circumstances, the Tribunal has formed the view that  if the applicant was to leave Australia and look for employment in China, any hardship resulting from such circumstances would be insignificant.

29. The applicant told the Tribunal that his parents had contributed for a home deposit and his partner is working hard to repay the mortgage. The Tribunal accepts that evidence. as noted below, the applicant presented very limited evidence concerning his and the family’s financial affairs. The Tribunal accepts that  if the applicant was to leave Australia, this may result in his partner having to give up her employment in order to look after the children, which may in turn affect the family’s financial circumstances, but the Tribunal does not accept the applicant would depart Australia if his visa is cancelled.

30. The applicant told the Tribunal that his children cannot leave Australia. The Tribunal accepts that it is the applicant’s and the family’s preference that the applicant should remain in Australia. However, as noted elsewhere, the applicant is eligible to apply for a Partner visa onshore and he confirmed in oral evidence to the Tribunal that he would make such an application if his Skilled visa is cancelled. This issue is addressed more fully elsewhere in this decision. For that reason, the Tribunal has formed the view that the cancellation of the visa will not result in the applicant’s departure from Australia.

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

31. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act and the applicant conceded the breach in his response to the NOICC.

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

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

    The time that has elapsed since the non-compliance

33. The application was made in June 2015 and approximately six and a half years passed since the non-compliance. The Tribunal acknowledges it is a significant period.

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

34. There are no known breaches of the law and the applicant provided to the Tribunal his Australian police certificate.

    Any contribution made by the holder to the community.

35. The applicant states that his partner’s employment as a registered nurse in aged care setting provides a significant benefit to the community and the applicant’s care for the children and undertaking of family duties enables his partner to wok on a full-time basis. The applicant claims that it would be against community interests if his partner was forced to quit her job without the applicant’s support. The Tribunal is prepared to accept that the applicant makes a contribution by raising his children and supporting his partner’s employment.

1. 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.

2. The visa held by Ms Deng would be subject to the consequential cancellation. Ms Deng is not part of the present review. The applicant told the Tribunal that Ms Deng may have acquired another visa or the Australian citizenship. There is no other information before the Tribunal concerning Ms Deng’s circumstances.

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

3. The applicant and his current partner have two minor children who are Australian citizens. The applicant and his partner have given evidence about their close relationship with the children and the need for the children to have the presence of both parents. The applicant claims he is the primary caregiver to his children due to his partner’s work commitments.

4. The applicant claims that if he is to leave Australia on his own, he would be separated from his children for potentially a long time while relocating the entire family would not be beneficial to the children’s best interests. The applicant outlined the challenges of relocation to China, including the children’s current education in English and the difficulty they would face in adapting to a different type of education. The applicant refers to children’s bonds, noting in particular that  the elder child is attending a Catholic school which she may be unable to do in China.

5. In his submission to the Tribunal the applicant refers to authorities such as Teoh and Vaitaki, addressing the best interests of his children, stating that the delegate had not given these sufficient weight. The Tribunal acknowledges this submission.

6. The Tribunal is prepared to accept the entirety of the applicant’s evidence. Importantly, the Tribunal is also mindful that as Australian citizens, the children would be unable to acquire the citizenship of China, which does not recognise dual nationality, and if the children were to reside in China without the citizenship of that country, they may have more limited opportunities in accessing healthcare, education and various government benefits. The Tribunal accepts that in these circumstances, it would be in the best interests of the children to remain in Australia. The Tribunal is also prepared to accept that  it is in the best interests of the children to have the presence of both parents, that is, for the applicant to remain in Australia. However, it is highly significant, that the cancellation of the applicant’s visa need not lead to his removal or departure from Australia as the applicant is eligible to seek a Partner visa onshore and has confirmed that he would make such an application if necessary.

7. In his submission of 12 October 2021 the applicant claims that if his visa is cancelled, he would be unable to make another visa application in Australia as an application for a Partner visa would be subject to PIC 4020, which may impose a three year ban unless a waiver is applied, and that would mean that he may have to leave Australia and be separated from his family for three years. While the Tribunal acknowledges that PIC 4020 will apply in relation to a future Partner application, whether made onshore or offshore, the Tribunal is mindful that this provision only applies in relation to information given with respect to a visa held in the 12 months before the application is made. If the present visa remains cancelled, the applicant would not have been holding the Skilled visa for 12 months in mid-2022 when PIC 4020 may no longer apply to him. That is, should the applicant choose to delay making the Partner visa application until PIC 4020 no longer applies to him, the delay in lodging another application is likely to be a little over six months, rather than the three years to which the applicant refers.

8. More importantly, in the Tribunal’s view, a waiver of PIC 4020 is available. Considerations relevant to the waiver are different to those that apply here so the outcome of this review is in no way indicative of the possible outcome of the PIC 4020 waiver consideration. Thus, there is nothing preventing the applicant from making a Partner visa application onshore and it cannot be claimed that such a visa will not be granted because of operation of PIC 4020 or for any other reason (equally, it cannot be assumed that  one would be granted). In such circumstances, the Tribunal does not accept that the cancellation of the visa would necessarily result in the applicant being separated from his family for three years. The Tribunal finds that the applicant is eligible to make an application for a partner visa onshore and while there can be no guarantee that the visa will be granted, the Tribunal is of the view that there is little likelihood of the applicant departing Australia as a result of the present cancellation, and little likelihood of the applicant being separated from his partner and children because his evidence to the Tribunal is that he will make an application onshore.

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

9. As noted above, the applicant’s partner and children reside in Australia and the principles of family unity may require his presence in Australia. There is no evidence, and the applicant does not claim, that Australia’s protection obligations are engaged in this case. The Tribunal does not consider that the cancellation would lead to removal of the applicant in breach of Australia’s non-refoulement obligations.

   Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

10. If the applicant’s visa is cancelled, unless 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.

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

11. The applicant provided a number of character references with his response to the NOICC and the Tribunal accepts that those who provided the references believe the applicant to be a good person.

12. The applicant claims that if his visa is cancelled, his partner would have to leave her job to care for the children, which would cause financial hardship. The applicant also refers to the emotional and psychological trauma to the children due to the cancellation of his visa. The Tribunal finds these submissions unpersuasive because they are based on an assumption that the cancellation of the visa would lead to the applicant being required to leave Australia. For the reasons stated elsewhere, the Tribunal does not accept this is the case.

13. The applicant also states that he and his partner came to Australia as international students, their parents had spent most of their savings to meet their expenses and they might not be able to afford property in China. The applicant states that he would be living in ‘undesirable social and economical conditions’ inferior to those they have in Australia. The Tribunal is mindful that these claims are entirely unsupported by probative evidence – for example evidence about the applicant’s present financial circumstances, any assets the family may dispose of if they were to relocate to China, the likelihood of gainful employment and the cost of living in China, etc. Also importantly,  the applicant has not satisfied the Tribunal that his partner and children – who have the visas to remain in Australia – would be relocating to China permanently and, indeed, the Tribunal does not consider that the applicant himself would depart Australia whether or not his visa is cancelled.

14. In his submission to the Tribunal the applicant claims that the delegate failed to have due regard to the best interests of his children and to other favourable considerations. With respect, the weight to be given to different considerations is for the decision-maker. For the same reason, the Tribunal considers the applicant’s submission referring to other Tribunal decisions unhelpful as the Tribunal must consider the specific circumstances of this case and determine what weight to give to the various considerations having regard to such circumstances.

15. The applicant told the Tribunal that paying the application fees for a Partner visa could cause him hardship, given the family’s other financial commitments. The Tribunal does not accept that  evidence as the applicant presented no financial records for his own family or his parents (he claims his parents helped him pay for the property deposit in the past but have now retired) or any other friends or relatives who may be able to provide financial help to the applicant. There is no evidence before the Tribunal as to whether the applicant can draw funds from his mortgage or otherwise obtain a loan to cover the application fees. The Tribunal does not accept the applicant would not have the fees to pay for a new visa.

16. Ms Ding’s evidence to the Tribunal is that the circumstances are causing her a lot of stress and affect her ability to work and lead daily life. Ms Ding states that the punishment is not only for the applicant but for the entire family as the visa issues affect the applicant’s ability to care for the children. Ms Ding states that if the applicant has to leave Australia, she would have to give up her job and rely on Centrelink to care for the children. The Tribunal acknowledges that evidence but for the reasons set out elsewhere, does not consider the applicant would leave Australia whether or not his visa would be cancelled.

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant provided incorrect answers on the application form when he referred to the de facto relationship with Ms Deng and such a relationship did not exist. The Tribunal also finds that the applicant gave bogus documents with his visa application. The Tribunal has found that the applicant did not comply with ss. 101 and 103 of the Act and that there are grounds for cancelling the visa.

18. The Tribunal accepts that  significant hardship would be caused to the applicant and his family, for a variety of reasons, if the applicant was required to leave Australia as a result of his visa being cancelled. The Tribunal has also formed the view that it is in the best interests of the applicant’s children to remain with their father, that is, for the applicant to remain in Australia. The Tribunal acknowledges the length of time the applicant has spent in Australia and his settlement in Australia, as well as the various bonds he has formed. The Tribunal acknowledges that having regard to all these circumstances, it is the applicant’s preference that he should be permitted to remain in Australia with his family and that hardship would be caused if he is unable to do so. The Tribunal has also had regard to the applicant’s medical condition, although as noted above, the Tribunal has formed the view that a brief medical report based on a single visit and with no ongoing treatment does not suggest that the applicant’s condition is of such nature that he would be unable to obtain adequate treatment whether or not his visa is cancelled.

19. In the particular circumstances of this case, The Tribunal places weight on the fact that the cancellation of the applicant’s visa need not (and in the Tribunal’s view, is highly unlikely to) result in the applicant having to depart Australia. This is because the applicant is eligible to make an application for a Partner visa onshore, as he concedes in his evidence to the Tribunal. The applicant’s eligibility to seek a Partner visa onshore would alleviate much of the hardship to which he and his partner refer, but the Tribunal acknowledges that there can be no guarantee that this visa would be granted. In particular, the Tribunal acknowledges that the applicant would need to meet PIC 4020 in relation to any future visa applications. As noted above, the Tribunal accepts that if the applicant does leave Australia, there would be considerable hardship caused to him and his family. The Tribunal also accepts that the uncertainty, costs and delay associated with another application may in themselves cause hardship. The Tribunal accepts that even if the applicant is able to make an application for a visa in Australia and is granted that visa in the future, the process is likely to cause some hardship to him and his family. These are considerations that are against the cancellation.

20. In the circumstances of this case, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred. This is not a case where the applicant was unaware of the information that was being submitted in his application. The applicant was aware that he was including Ms Deng as his de facto partner and he knew that she was not his de facto partner. Even if the applicant was not aware of the precise details of the bogus documents, or did not personally prepare these, the applicant was fully aware that incorrect information was being included in his application, and this was done with his knowledge and consent. The applicant had voluntarily engaged in serious fraud, whether to gain a financial benefit (he claims Ms Deng paid his application fee) or as a favour to a friend. The applicant’s complicity in the fraudulent conduct, in full knowledge and understanding that fraud was committed, is a very strong reason, in the Tribunal’s view, for the cancellation of the visa.

21. The Tribunal also places weight on the fact that the decision to grant the visa was based, in part, on incorrect information. While the Tribunal accepts that the applicant did not need to include the secondary applicant to obtain the visa, once he did include her, this may have affected consideration of PIC 4020 as the applicant concedes he gave incorrect information and bogus documents in this visa application. That also weighs in favour of the cancellation.

22. Overall, the Tribunal acknowledges there are factors against the cancellation but has decided to place greater weight on the circumstances of the non-compliance and, in particular, the applicant’s complicity in the fraud.

23. 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

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

    Kira Raif
    Senior Member