Wang (Migration)

[2024] AATA 98

Wang (Migration) [2024] AATA 98 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bin Wang

REPRESENTATIVE:  Mr Jiang Liu

CASE NUMBER:  2306161

HOME AFFAIRS REFERENCE(S):          BCC2021/1746123

MEMBER:R. Skaros

DATE:18 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 18 January 2024 at 5:15pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information and bogus document provided with previous visa application – English language test – comparison of photos provided for language test and visa health assessment – language test undertaken by someone else – discretion to cancel visa – ground conceded – mother’s health at the time – substitute test taker arranged by agent, with applicant notified after paying deposit – applicant unaware of agent’s response to department’s natural justice letter, claiming facial surgery shortly before health assessment – combined hearing of applicant’s, spouse’s and son’s separate reviews – mother’s contributory parent visa application in progress – length of residence, business investment and family’s social and emotional ties – daughter’s permanent residence visa not cancelled and husband’s and son’s cancellations set aside – best interests of children – credible and sincere witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 101(b), 103, 105, 107, 107A, 109(1), 375A
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 44-year-old citizen of China. She is married and has two children, a 19‑year‑old son and a seven-year-old daughter. The family travelled to Australia in August 2016 as holders of Subclass 187 (Regional Sponsored Migration Scheme) visas. They subsequently applied for, and were granted, Subclass 155 visas.

3. The delegate cancelled the Subclass 155 visa on the basis that the applicant had not complied with s 101 and s 103 of the Act in relation to the previously held Subclass 187 visa. The applicant’s spouse (Mr Yuyong Wang) and son (Mr Jiazhi Wang) also had their Subclass 155 visas cancelled. Separate decisions were made by the Department in relation to the cancellation of their visas.

4. The applicant, her spouse and their son appeared before the Tribunal in person on 24 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence form the applicant’s mother (Ms Meiyu Xin) and a family friend (Ms Xiaomei Speets). The hearing was conducted in combination with the related review matters lodged by the applicant’s spouse and son: AAT file numbers 2311368 and 2311369. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review. The representative attended the hearing.

6. The Department’s file contains a non-disclosure certificate issued under s 375A of the Act in respect of various documents. The applicant was informed of the existence of the certificate, details of which were discussed at the hearing. The certificate provides that disclosure of the information contained in the specified document would be contrary to public interest because it would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, and disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

7. Having considered the reasons for the non-disclosure and the nature of the documents covered by the certificate, the Tribunal formed the view that the certificate provides a valid public interest reason for non-disclosure of the material. The Tribunal explained to the applicant that, notwithstanding the validity of the certificate, it was still under obligation to disclose to her any information in the documents relevant to the issues in the review. The Tribunal informed the applicant that the relevant information related to the forensic investigations undertaken by examiners regarding the identity of the person who sat the English language test and the person who sat the medical exam. The Tribunal noted that the relevant information (being the outcome of the investigation) had been disclosed to her in the Notice of Intention to Consider Cancellation (the s 107 notice) and that she had an opportunity to comment on that information. The applicant confirmed that she became aware of the investigation when she got the s 107 notice. The representative indicated that he has no issue with the validity of the certificate.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

11. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

12. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

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

13. 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 101 and s 103 in the following respects.

14. On 25 September 2015 an application for the Subclass 187 visas was lodged with the Department on behalf of the applicant and her family. On the visa application form, it was indicated that the applicant had undertaken an English language test within the last 36 months and details of that test were provided. It was indicated that the applicant undertook an IELTS test on 14 December 2013 in which she achieved Competent English.

15. In support of the visa application, a copy of the IELTS test report form (13CN419562WANB001G) purportedly issued to the applicant ‘Bin Wang’, with the same date of birth, dated 14 December 2013, was provided.

16. Based on the above information, as well as meeting other relevant criteria, the applicant and members of her family were granted the Subclass 187 visas on 3 August 2016.

    Subsequent information received by the Department

17. As part of the process for the Subclass 187 visa application, the applicant underwent a health assessment on 8 October 2015 and a photo was taken of her for identification purposes for the health assessment.

18. During the visa application assessment process, a discrepancy between the photo on the IELTS test report and the photo taken at the health assessment was identified by the Department.

19. Departmental records indicate that the applicant was informed of the above discrepancy in an invitation to comment on adverse information for the Subclass 187 visa application. In response to the adverse information, submissions and supporting documents were provided to the Department on 13 May 2016. It was submitted that the applicant had a double eyelid operation, opened canthus and botox injection surgery on 29 September 2015, which was within the 15-day recovery period when she took the photo for the health assessment on 8 October 2015. It was claimed that the post-effect of this facial surgery affected her normal facial appearance. It was also claimed that the applicant took nutritional supplements and adjusted her diet during the time she took the IELTS test in December 2013, making her face look fuller and different from the photo taken in October 2015 for the health assessment. The Department considered the submission and supporting evidence, and on 3 August 2016 decided to grant the Subclass 187 visas.

20. On 5 December 2019 a forensic facial image examination was undertaken by a Forensic Facial Image Examiner of the Department. The examiner forensically compared the photo taken on 8 October 2015 for the health assessment and the photo on the IELTS test report dated 14 December 2013. The examination report concluded that there are indications the persons in the two photos are not the same person.

21. In relying on the outcome of the facial image examination, the delegate formed the view that the person who undertook the IELTS test in China was not the applicant. The delegate considered that the applicant had provided incorrect information in the application for a Subclass 187 visa when she provided details of her claimed English language ability as ‘Competent’ and details of an IELTS test examination undertaken in the preceding 36 months in China. The delegate also considered that the applicant had provided a bogus document, being the IELTS test report form, dated 14 December 2013, which is reasonably suspected to be a document purported to have been, but was not, issued in respect of the applicant.

    Response to the s 107 notice

22. In responding to the notice, the applicant’s representative provided a detailed submission conceding that the applicant had not undertaken the IELTS test on 14 December 2013 which was relied upon in the Subclass 187 visa application. It was submitted that the applicant had no intention of providing incorrect information or a bogus document and that she was influenced by the agent who lodged the application on her and her family’s behalf.

23. The applicant provided a statutory declaration in which she set out the circumstances leading up to lodgement of the visa application and the provision of the IELTS test report. The applicant stated that, following difficult personal circumstances, she approached a migration agency in China about her eligibility for migration to Australia. The applicant informed the agent that she had limited English skills but was advised by the agency that this would not be an issue and that they would arrange everything for her. Initially, the applicant was hesitant and confused but she had a strong desire to migrate to Australia due to her personal circumstances. The applicant expressed her remorse and said she had failed to exercise proper judgement and gave full authority to her agent to handle the application on her behalf.

24. The Tribunal has had regard to the circumstances of the non-compliance further below. In determining whether there has been non-compliance as described in the s 107 notice, the Tribunal has had regard to the forensic facial image examination conducted by a Forensic Facial Image Examiner which found that the person who undertook the medical examination was not the same person who sat the IELTS test. The Tribunal has also had regard to the admissions made by the applicant that she did not sit the IELTS test for which the report dated 14 December 2013 was issued. On the evidence before it, the Tribunal finds that incorrect information about the applicant having undertaken an English language test within the preceding 36 months and having achieved ‘Competent’ English was provided in the visa application form. Accordingly, the applicant has not complied with s 101(b) of the Act.

25. The Tribunal further finds that the IELTS test report form dated 14 December 2013 which was provided with the visa application is a bogus document because it is a document which the Tribunal reasonably suspects, based on the evidence before it, is a document that purports to have been, but was not, issued in respect of the applicant: s 5(1)(a) of the Act. Accordingly, the applicant has not complied with s 103 of the Act.

26. For the above reasons, the Tribunal finds that there was non-compliance with s 101 and s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

27. 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).

28. 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: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal has considered the relevant circumstances as follows.

    The correct information

29. The correct information is that the applicant did not sit the IELTS test on 14 December 2013 and that she did not achieve a ‘Competent’ level of English as claimed in the Subclass 187 visa application form. The Tribunal considers that if the correct information was known to the Department, the applicant would not have been granted the visa. Accordingly, this consideration weighs in favour of cancellation.

    The content of the genuine document (if any)

30. The relevant document in this case is the IELTS test report form which contains the results of an English test undertaken on 14 December 2013. The results achieved in that test were not those of the applicant, as she had not undertaken the English language test. The IELTS test results were achieved by an imposter, whose photograph appears on the test result form.

31. The Tribunal considers that if the Department had known that the scores in the IELTS test were achieved by someone other than the applicant, the applicant would not have been granted the Subclass 187 visa. Accordingly, this consideration weighs in favour of cancellation.

    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

32. Subject to specified exemptions, the applicant would have had to demonstrate that she had the required level of English language proficiency to be granted the Subclass 187 visa. The Tribunal considers that the decision to grant the applicant the Subclass 187 visa was based partly on the incorrect information provided in the application form about her having sat an IELTS test and having achieved ‘Competent’ English and the corresponding bogus document, being the IELTS test report form, which purported to demonstrate that the applicant had achieved the required English proficiency.

33. The Tribunal considers that the decision to grant the applicant the visa was based, in part, on the incorrect information and bogus document. Accordingly, this consideration weighs heavily in favour of cancellation.

    The circumstances in which the non-compliance occurred

34. The non-compliance occurred when the incorrect information and a bogus document about the applicant’s English language proficiency was provided in connection with the Subclass 187 visa application, which was lodged on 25 September 2015.

35. The applicant made admissions that she had not undertaken an IELTS language test on 14 December 2013 and agreed that the information provided in the visa application was incorrect and the IELTS test report was a bogus document. The applicant’s evidence is that due to compelling and compassionate circumstances she had a strong desire to migrate to Australia and she was influenced by her agent, whom she authorised, and who arranged for another person to sit the English language test.

36. In response to the Tribunal’s questions about the circumstances leading up to the non‑compliance, the applicant provided the following evidence. The applicant holds a Bachelor of Marketing degree from China and was working in the marketing department of a logistics company since about 2008. Her father passed away when she was 17 years old. She is an only child, so it was just her and her mother. Her mother suffered from depression and so she assumed the family responsibility which made her a strong person. She married Mr Yuyong Wang and they had a son, Jiazhi Wang. She and Mr Yuyong Wang regularly quarrelled and eventually they divorced. She had full-time care of her son.

37. In early 2013 the applicant’s mother was diagnosed with cancer. The pathology report indicated that the breast cancer had metastasised, and they were told it was likely to spread to other parts of the body. The doctor informed them that she had about three years to live. During that time the applicant felt that her mother could pass away at any time, and it was a thought that terrified her because she had already lost her father and could not comprehend that she could also lose her mother. She spent every moment sitting beside her mother at the hospital. Her mother underwent radiotherapy and chemotherapy. In addition to losing all her hair, her mother had a reaction to the therapies and suffered constant infections due to a weakened immune system.

38. At the time of her mother’s treatment, Mr Yuyong heard about situation and returned to look after their son. Through these difficult circumstances, they understood what love is and decided to remarry. They remarried approximately 10 months after her mother’s initial surgery. She recalls just the two of them attending the registry for the marriage. There were no guests at that wedding. They promised to support each other, raise children together and care for their parents.

39. The applicant said she feared for the health of her mother, the treatment was very expensive, and she wanted to get the best medical treatment available for her mother. Even if her mother’s life was extended by just one year, she felt it would be worth it. She heard about the medical treatments for cancer in Australia and became motivated to migrate there as a family. She wanted to start a new life, leave painful memories behind, and give her mother the opportunity to get the best medical treatment.

40. The applicant approached an agent in China who told her that she would be eligible for migration and that they would take care of everything for her. They told her that even if her English language skills were not very good it was not a problem as they would be able to overcome that requirement. She was quoted a fee of CNY 1 million (AUD188,000)[1] and signed a contract. She was required to pay CNY700,000 (AUD120,000) as a deposit, which she did. After she had already paid the deposit, she was told by the agent that they had to arrange for someone to sit the English test for her. She said she was shocked and scared but felt that there was no way of going back. Her mother was still in hospital, and she had already paid a very large amount of money for the migration process. She said she was too scared to tell anyone about this and just kept it a secret. She maintained that she did not tell her mother or her husband about this. She said they knew that she was in the process of applying to migrate to Australia for the whole family, and that she was being assisted by a migration agent, but she never informed them about the agent arranging for someone to sit the English test for her. She said she felt guilty and scared, though she seemed to have forgotten about it after they came to Australia. She said it was not until she received the cancellation notice that all this history and feelings of guilt and shame resurfaced in her mind.

    [1] Based on average exchange rate of CNY: AUD (5.83:1) type="1">

41. The Tribunal asked why she did not discontinue the migration process, which it considered was well within her control to do, upon being informed by the agent that they would arrange another person to sit the English test for her. The applicant said she was scared, her mother was still in hospital, she had a very strong desire to migrate to get her mother the best medical treatment and she had already paid a lot of money. She said at the time she did not have the best judgement.

42. The Tribunal discussed with the applicant the response to the natural justice letter, which was sent to her prior to the grant of the visa, inviting her to comment on the discrepancy in the photographs and the documents provided from a medical professional indicating that she had surgery and that her face looked fuller at the time she sat the English test. The applicant said she was not aware of that letter, or the documents provided, as it was all done by the agent.

43. The Tribunal remarked that her mother, for whom she had gone through the whole immigration process, was not actually included in the migration application, so it was unclear why she would continue with the process given her mother could not be included. The applicant said she was advised that upon getting their visas, her mother could then get a visitor visa and go to Australia, and she could then sponsor her mother for a parent visa. The Tribunal notes that this is exactly what occurred. The applicant’s mother travelled to Australia as the holder of a Subclass 600 visitor visa and the applicant subsequently sponsored her mother for the contributory parent visa. The contributory parent visa application is pending before the Department. The applicant’s mother currently resides with the applicant in Australia. She holds a bridging visa which was granted to her in association with the contributory parent visa application.

44. In relation to her mother’s health, the applicant said her mother has private health insurance and is getting treatment. After they came to Australia, she took her mother to see a breast cancer specialist. Her mother undertook several diagnostic tests which revealed that no further surgery was required, and her mother has been put on medication and has a good quality of life.

45. When asked about the source of the funds she used to pay the agent for the visa, the applicant said at the time she was so desperate, she sold her house. She sold the house for CNY 1.4 million and used the proceeds to pay the agent. The applicant expressed her remorse and shame. She said she knows what she did was wrong, she was not in a good state of mind and was not thinking rationally and when she reflects on what she did she feels a great sense of shame. She feels guilty for what she has put her family through. When she received the cancellation notice she told her husband and son, and they were shocked and upset, but they forgave her because they know it is not her character to be dishonest. She said she knew she had to face the truth and decided to promptly confess. She said she wants an opportunity to redeem herself and contribute to the Australian community.

46. The Tribunal also took evidence from the applicant’s mother, Ms Meiyu Xin, who provided details about the death of her husband (the applicant’s father), her cancer diagnosis and the treatment she received. Ms Xin said when she found out about the cancellation and the reason, she could not believe it was true. She said she felt very moved by the sacrifice her daughter made to get her to Australia so she could get medical treatment for her cancer. She said at the time the cancer had spread to her lymph nodes and she had to have a lot cut out. The treatment was difficult and each injection cost 20,000 so she just wanted to give up. She said her daughter was suffering and begged her not to give up and to continue with the treatment. She continued with the chemotherapy and radiotherapy despite experiencing strong negative reactions. Ms Xin said she is currently experiencing good health and feels she is getting better year on year. She said her life changed when she came to Australia. She lives with her daughter, son-in-law and the children. She said the children love Australia and so does she. She wants to help care for the children when her daughter and son‑in‑law work and contribute to Australia.

47. The Tribunal’s assessment of the evidence regarding the circumstances of the non‑compliance follows.

48. In giving her evidence, the applicant presented as a credible and sincere witness. The Tribunal accepts the applicant’s evidence regarding the events leading up to the non‑compliance and the reasons for the non-compliance. The evidence given by the applicant’s mother at the hearing about her diagnosis, treatment and why her daughter wanted to migrate to Australia was entirely consistent with the evidence given by the applicant.

49. The Tribunal acknowledges the vulnerability of the applicant at the time of the visa application. It accepts that the applicant (in her own mind) believed she had no other viable option but to proceed with the migration application given her very strong desire to get better medical care for her mother and the fact that she had already paid a very large sum of money to the agent. The Tribunal considers that the applicant was induced by an unscrupulous agent who took advantage of her desperate situation, charged her exorbitant fees and falsified documents. However, this does not absolve the applicant of responsibility. Notwithstanding her predicament, the Tribunal considers that the applicant, who would have understood she was participating in fraudulent actions, still had a choice and could have, if she so wished, not proceeded with the application upon learning that the agent would arrange for another person to sit the English test on her behalf.

50. While the Tribunal accepts that the applicant’s desperation clouded her judgement, it nevertheless considers her conduct of proceeding with an application she knew contained falsified information to be very serious. For these reasons, the Tribunal considers that the circumstances of the non-compliance weigh in favour of cancellation.

    The present circumstances of the visa holder

51. The applicant, her spouse and their son first travelled to Australia on 24 August 2016 as holders of Subclass 187 visas. The applicant’s daughter, who was born in China after the Subclass 187 visa had been granted, was subsequently granted a child visa. The applicant’s mother arrived in Australia about four months later on a visitor visa. The applicant, her spouse, their children and her mother have all been living together in Australia. The applicant said she worked for a hostel in the Sunshine Coast for about one year from 2017 to 2018. In 2019 she arranged study tours for overseas Chinese students to come and visit Australia. Due to travel restrictions because of the COVID-19 pandemic the tours stopped, however, she has recently recommenced arranging further study tours.

52. The applicant said that she and her spouse sold their assets in China and transferred the funds to Australia. They purchased a motel business, which is leased to an operator, and have purchased residential property. Her husband has also established a renovation and construction business, which has been very successful and employs Australians. She has been managing the paperwork and accounts of the business.

53. In relation to their connections in Australia, the applicant said that they have a strong social network in Australia. Her children have grown up in Australia, they consider Australia their home and they have very close friends. On the weekends they go to the church or the temple. They work hard during the week, go out with friends on weekends and their children spend time with their friends. The applicant said that as a family they have a very fulfilling life in Australia. The applicant said she understands she made a mistake and deserves the punishment, but she feels guilty about the pain she has caused her husband and the children. If the visa is cancelled and the whole family had to return to China, they would have to start from the beginning. At her and her husband’s age they would face difficulties finding suitable employment and starting a business would also present its own difficulties.

54. The applicant and her family have resided in Australia for eight years and the Tribunal accepts that during that time they have established strong emotional, social, financial and business ties to Australia. The applicant’s spouse and children are permanent residents. The Department did not cancel the daughter’s permanent resident visa. In relation to the cancellation of the spouse’s and the son’s Subclass 155 visas, the Tribunal set aside those decisions after considering the evidence relevant to each of their circumstances.

55. Given the above, the Tribunal considers the present circumstances of the applicant weigh against cancellation of the visa.

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

56. It was submitted the applicant promptly admitted to the non-compliance in her response to the s 107 notice. The Tribunal accepts this was the case, however, it also notes that the applicant, despite knowing that incorrect information and a bogus document had been provided in the visa application, had not informed the Department of the non-compliance as she was obliged to do under s 105 of the Act. This consideration weights in favour of cancellation.

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

57. There is no evidence before the Tribunal which suggests that there are any other instances of non-compliance.

    The time that has elapsed since the non-compliance

58. The non-compliance occurred when the Subclass 187 visa application was lodged, in September 2015, which is a period of just over eight years. The Tribunal considers this to be a long time. Accordingly, the Tribunal gives some weight to this consideration against cancellation of the visa.

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

59. There is no information before the Tribunal which indicates that there have been any breaches of the law since the non-compliance.

    Any contribution made by the applicant to the community

60. The applicant said that if she is given the opportunity to remain in Australia, she wants to give back to the community. She is a law-abiding person who helps people. The Tribunal has also had regard to the applicant’s contribution through her past employment, business investment in Australia through the purchase of a motel in regional Queensland and the cultural contribution through her involvement in the study tour programs. The applicant’s contribution to the community weighs slightly against cancellation of the visa.

61. While the above 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

62. Cancellation of the applicant’s visa would not result in the consequential cancellation of any other person under s 140. The Tribunal notes the Subclass 155 visas held by the applicant’s spouse and son were cancelled separately under s 109 of the Act. The cancellation of her spouse’s and her son’s Subclass 155 visas were set aside by the Tribunal. The applicant’s daughter continues to hold a permanent resident visa.

    Best interests of children

63. Departmental policy provides that 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. It has been said that the question is regarding what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]–[28].

64. The child whose interests would be affected by the cancellation is the seven-year-old daughter, who is a permanent resident. If the applicant’s visa is cancelled and she has to return to China, it is likely that her daughter would return with her. The Tribunal has had regard to evidence given by the applicant that her daughter would experience hardship, including cultural and academic difficulties, if she is required to return to China. The applicant gave evidence that while her daughter speaks Mandarin, her reading and writing was not at a level to enable her to keep up with the academic demands in China. She said her daughter was making good progress at school, was involved in extracurricular activities, including music and gymnastics, in which she excels, and that she has developed close friendships. The applicant indicated that it would be devastating for her daughter if she had to return to China and leave behind the life she knows and loves.

65. The Tribunal accepts that the applicant’s daughter may potentially face several difficulties if she returns to China, including disruption to her education, a language barrier, given her lack of proficiency in Mandarin, particularly in reading and writing, social adjustment, lifestyle adjustment and emotional stress. The Tribunal considers that the applicant’s daughter is quite young, and, with support of the applicant and her spouse, would be able to overcome these difficulties following a period of adjustment. Nevertheless, when considering what decision would or would not be in the best interests of the applicant’s daughter, the Tribunal accepts on the totality of the evidence before it that the daughter’s interests are best served if the applicant’s visa is not cancelled. Accordingly, this consideration weighs against cancellation of the visa.

    Australia’s international obligations

66. The evidence before the Tribunal does not suggest that cancellation of the visa would result in removal of the applicant from Australia in breach of its international non‑refoulment obligations. As for family unity, the Tribunal notes that if the applicant’s visa is cancelled and she has to return to China, it is open for members of her family, including her spouse and children, to return with the applicant and reside there as a family unit. Accordingly, the Tribunal gives this consideration limited weight against cancellation.

    Mandatory legal consequences

67. Departmental policy requires consideration of 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.

68. The applicant will only become an unlawful non-citizen and liable for detention and removal if she does not depart Australia within the validity of any bridging visa she currently holds or if she is not granted another visa to remain in Australia. If the visa is cancelled, the applicant will be affected by s 48 of the Act, which limits the types of visas she can apply for onshore. The applicant may also be subject to an exclusion period. The Tribunal considers the mandatory legal consequences of cancellation are those intended by the legislation and gives this consideration limited weight against cancellation.

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

69. In considering the degree of hardship that may be caused to the applicant and her family members, the Tribunal accepts that cancellation of the applicant’s visa is likely to cause financial, emotional and psychological hardship to the applicant and her family. Accordingly, this consideration weighs against cancellation.

    Overall consideration

70. The Tribunal has carefully considered all the evidence before it and weighed up the relevant considerations. The Tribunal considers significant that the applicant was granted a visa which was in part based on incorrect information and a bogus document. This seriously undermined the integrity of Australia’s migration program and resulted in the applicant being granted a permanent resident visa to which she would not have been entitled. While this circumstance weighs strongly in favour of cancelling the applicant’s visa, the Tribunal considers that the cumulative effect of other circumstances marginally tips the balance against cancellation, the most compelling being the present circumstances of the applicant, including the length of time she has resided in Australia with her family, the circumstances of her children who have spent their early formative years (in the case of her daughter) and formative years (in the case of her son) in Australia, and the circumstances of her spouse who has established a successful business which employs Australians. Of significance, and a primary consideration, are the best interests of the applicant’s daughter, which the Tribunal has found would be best served by the applicant’s visa not being cancelled. The Tribunal does not condone the applicant’s conduct and considers the non-compliance to be very serious. Nevertheless, having regard to all the relevant circumstances as it is required to do, the Tribunal considers that the preferable decision in this matter is not to cancel the visa.

    Conclusion

71. 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 not be cancelled.

    DECISION

72. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    R. Skaros
    Senior Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non-compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.