Wei (Migration)

[2021] AATA 4457

Wei (Migration) [2021] AATA 4457 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhen Wei
Mrs Huiwei Tan

CASE NUMBER:  2109523

HOME AFFAIRS REFERENCE(S):          BCC2019/2637194

MEMBER:Kira Raif

DATE:2 November 2021

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 02 November 2021 at 7:03pm

CATCHWORDS

MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled – Nominated – incorrect information in the visa application – de facto – relationship ceased soon after visa grant – partner conceived a child with another person – applicant did not rely on Partner points – impact on the applicant’s employer – financial hardship – partner’s two Australian citizen children – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 98, 101-105, 107, 109, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4020; 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 first named applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) is a national of China, born in June 1989. He was granted the Skilled visa in May 2016. 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 ss. 101 and 103 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicants seek review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 2 November 2021 to give evidence and present arguments. The applicants were represented in relation to the review by their 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

5. 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.

6. 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? 

7. 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.

8. 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?

9. 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.

10. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for a Skilled visa in subclass 190 in January 2016. He included in that application Ms Huiwei Tan as his de facto partner. In the application form the applicant referred to Ms Tan as a de facto partner and claimed that the relationship commenced in October 2014. The applicant also signed a declaration on page 12 of the form, stating that the information he had provided was complete and correct in every detail.

11. The primary decision record indicates that as evidence of the de facto relationship with Ms Tan, the applicant provided evidence of cohabitation. This included Ms Tan’s Vodaphone phone bill issued in November 2014 with an address at Hurstville, the applicant’s bank statement for the period from November 2014 to January 2015 with the same Hurstville address and a joint bank statement naming the applicant and Ms Tan, with the same Hurstville address, for the period from October 2014 to December 2014.

12. The  primary decision record indicates that a forensic examination of the above documents shows that the listed residential addresses shown on the documents do not match those of the officially linked and registered documents. It is also noted that in the subsequent application made by Ms Tan, she stated that she resided at different addresses at Rhodes between March 2012 and 2016, contrary to the information provided in the Skilled visa application. It is noted that Ms Tan provided these addresses in her Incoming Passenger Cards (IPCs) between 2014 and 2016 and it is noted that the address in Rhodes was fraudulently altered to the address in Hurstville on the above-mentioned documents. The applicant was not listed as a contact person on Ms Tan’s IPCs.

13. The primary decision record indicates that in 2017 Ms Tan made an application for another visa (Ms Tan explains she did not apply for a visa but had sponsored her partner for the Partner visa) and claimed  that her relationship with the applicant ended on 17 June 2016 (20 days after visa grant) because she found out she was pregnant. It is noted that Ms Tan’s child was born in September 2016  with her current spouse, which would indicate the child was conceived when Ms Tan claimed to be in a de facto relationship with the applicant.

14. In his response to the NOICC the applicant states that the application was prepared by an agent and he did not provide the bogus documents. The applicant claims all the documents he provided to the agent were genuine and he had not seen the documents mentioned in the NOICC. The applicant submits that he does not know what was stated in his application.

15. In oral evidence to the Tribunal the applicant also claimed that he had never seen the supporting documents submitted with the application. The applicant states that after finishing his study in Australia, he found an agent and gave the agent his personal information and documents but not the documents mentioned above. The applicant claims that the agent submitted the papers without his knowledge and he did not check the application. The applicant states he was too naïve and did not check the application form, nor the documents, which he now regrets.

16. The Tribunal finds the applicant’s evidence problematic. Firstly, the primary decision record indicates that the applicant signed a declaration on the form, confirming that the information he gave was complete and correct. Given the extent of personal information required in the application form, the Tribunal does not accept that the applicant was not involved in its completion. Secondly, and importantly, the Tribunal does consider that the applicant had an obligation to check the content of the application before it was submitted. In the Tribunal’s view, the applicant could have asked his agent for a copy of the application before the papers were submitted. Thirdly, s. 98 of the Act provides that a person who does not fill in his application form is taken to do so if he causes it to be filled on his behalf. In this case, the applicant instructed the agent to complete the application form and to lodge the application on his behalf. The applicant is taken to have completed the form.

17. The Tribunal has formed the view that the applicant never had a de facto relationship with Ms Tan. This is because Ms Tan provided different residential addresses in her subsequent visa application and the addresses shown on the presented evidence of cohabitation had been found to have been altered. There would appear to be no need to alter the documents if the couple did reside together. The fact that Ms Tan gave different addresses and a different contact person on her IPC also supports the Tribunal’s view that the applicant and Ms Tan never resided together. The fact that  Ms Tan had conceived a child with another person while claiming to be in a relationship with the applicant supports the view that there was never a de facto a relationship between her and the applicant, as is the fact that the claimed relationship ended less than three weeks after the visas were granted. All of these factors, when taken together, offer very strong evidence in the Tribunal’s view that the applicant was never in a de facto or spousal relationship with Ms Tan. In their oral evidence to the Tribunal the applicant and Ms Tan both concede that they never had a de facto relationship and never lived together. The applicant told the Tribunal that he did not know Ms Tan and only met her once before his application was lodged.

18. Having regard to the information in the primary decision record, and the applicant’s and Ms Tan’s concession to the Tribunal, The Tribunal finds that the applicant and Ms Tan did not have a de facto relationship and never lived together. The Tribunal finds that the applicant gave incorrect answers on the application form when he referred to Ms Tan as his de facto partner. The Tribunal finds that the applicant completed the application form in a way that an incorrect answer was given or provided. The Tribunal finds that there was non-compliance with s. 101 of the Act. The Tribunal further finds that the bank records and phone bills showing a common address at Hurstville had been altered by a person with no authority to do so and are bogus documents within the meaning of s. 5(b) of the  Act. The Tribunal finds that the applicant gave, presented or provided bogus documents to the Minister or an officer and that he did not comply with s. 103 of the Act.

19. For these 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?

20. 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).

21. 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

22. The correct information is that the applicant was not in a de facto relationship with Ms Tan and did not live with Ms Tan at the same address in Hurstville.

    The content of the genuine document (if any)

23. The content of the genuine documents would not show that the applicant and Ms Tan resided at the same address in Hurstville.

    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

24. The applicant claims that he did not claim Partner points in his Skilled visa application and his visa would have still been granted whether or not he relied on the de facto relationship. The Tribunal acknowledges that the applicant did not rely on Ms Tan’s points although as the applicant concedes, the provision of incorrect answers and bogus documents may have attracted the operation of PIC 4020. The Tribunal is also mindful that the decision on the applicant’s visa is necessarily a decision relating to Ms Tan’s visa. It is significant, in the Tribunal’s view, that Ms Tan was only granted the visa because of the claimed de facto relationship. That is, Ms Tan would not have been granted the visa if the correct information was known. The Tribunal finds that the decision to grant the visas (to Ms Tan) was based on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

25. In his written submission, the applicant refers to some family issues which had affected him financially and psychologically and he claims that as a result, he could not consider all the consequences. The applicant claims that he had approached a migration agent and gave only genuine documents to the agent. The applicant claims that he did not see the content of his application.

26. In oral evidence, the applicant told the Tribunal that he did not know Ms Tan and only saw her once when they were taking photos but they did not connect. The applicant states that before his application was lodged, he approached an agent and provided documents to the agent. A mutual friend asked him to do a favour and take some random photos with Ms Tan. The applicant states that he met Ms Tan once and did not know her at all. He asked the agent what the photos were for but the agent did not reply and he trusted the agent because he was an expert in immigration law. The applicant states that he did not know anything and was not paid for including Ms Tan in his application but the agent did not charge him fees for preparing the application.

27. The Tribunal finds the applicant’s evidence unpersuasive. The Tribunal does not accept that the applicant would not check the contents of his application and leave everything to the agent without any degree of involvement. More problematic, in the Tribunal’s view, is the applicant’s evidence that he took some photographs with Ms Tan. The applicant claims that he asked what these were for, did not receive an answer, but decided to go ahead anyway. In the Tribunal’s view that explanation is non-sensical and the Tribunal does not accept that  the applicant would take photographs with a person he did not know without understanding what these were for. The Tribunal is mindful that the applicant by that time completed his study in Australia and has been living in Australia independently for a number of years. The Tribunal does not accept  that the applicant was too naïve not to question the purpose of the photographs, as he now claims. The Tribunal considers that a more likely explanation is that the applicant knew that the photographs were needed to evidence his relationship with Ms Tan and he knew that Ms Tan would be included in the visa application as his partner. The Tribunal has formed the view that the applicant was well aware of the fraud.

28. The Tribunal has also considered Ms Tan’s evidence. Ms Tan explained to the Tribunal that she wanted to apply for a Business visa but the agent suggested there was an easier way for her to get the visa if she ‘cooperated’. Ms Tan claims the agent did not explain the details to her as to what visas she would apply for. The Tribunal does not accept that explanation. Ms Tan’s claim is that she was going to apply for a specific Business visa because she was operating a business, so she knew enough about the Australian visas to know what visa she wanted and what was needed for it. Ms Tan also told the Tribunal that she knew she did not qualify for the Skilled visa because of the study she had completed. Again, that shows that Ms Tan had some awareness of visa issues. Ms Tan told the Tribunal that once the agent asked her to take photos with the applicant, she realised that she was relying on another person to get the visa. That is, Ms Tan knew that she was not in a relationship with the applicant and that this was the basis of her application. Ms Tan was well aware of the fraud and cognisant of the fact that  she was not entitled to the visa she was applying for and she realised that she was seeking the visa on the basis of false claims. Ms Tan explains that she really wanted to stay in Australia and that is the reason she chose to provide incorrect information in the Skilled visa application and the subsequent sponsorship of her husband. The Tribunal finds that Ms Tan was well aware of the fraud and complicit in it in order to obtain the visa.

29. Ms Tan apologised for making the application on false basis and stated that she loved Australia too much and wanted to stay. In the Tribunal’s view, that does not justify the deliberate breach of the immigration laws.  

    The present circumstances of the visa holder

30. In his response to the NOICC the applicant refers to his employment as a programmer / software developer (which is a priority occupation in high demand) for a top company and claims that he is a valuable asset to the Australian employer and the industry. The applicant claims that if he is to leave Australia, that would have a substantial impact on the company. The applicant told the Tribunal that he is responsible for a number of projects in his company which would be jeopardised if he is to leave. The Tribunal does not accept that evidence. In the Tribunal’s view, any company – including a top company to which the applicant refers – would have made provisions for stuff succession and training as the applicant is under no obligation to remain with the same employer and can leave at any time irrespective of his visa issues. His employer would be well cognisant of that fact. Even if the applicant’s departure may cause some inconvenience to his employer, the applicant has not satisfied the Tribunal that his departure (if the cancelation of the visa results in the applicant’s departure from Australia) would have a ‘substantial impact’ on his employer. In oral evidence the applicant told the Tribunal that he joined his previous company in 2018 and changed his employer in early 2021 and prior to that he worked for another company. It is evident that  the applicant had changed a few employers since his graduation and the companies he had worked for had been able to replace him.

31. The applicant spoke about his employer’s reliance on him and his role in managing critical project and the supervision of others. (The applicant provided to the Tribunal a statement from his employer and the Tribunal accepts the evidence in that statement.) The applicant states that he would be unwilling to leave the company before the projects are completed. The Tribunal is prepared to accept that the applicant plays an important role in the company but as noted above, the Tribunal is of the view that the company would have made arrangements for staff succession.

32. The applicant refers to his social ties in Australia and lack of social ties in China. He told the Tribunal he is a member of the community and has many connections in Australia. The Tribunal finds that evidence unconvincing, as the applicant did spend his childhood and youth in China and even if he has lost social connections, in the Tribunal‘s view, these can be re-established. Similarly, the applicant states that he would be unable to find a job in China and his parents cannot support him. The Tribunal does accept that evidence as the applicant’s skills (as a computer professional) appear to be readily transferrable. The applicant suggested to the Tribunal that his knowledge is specific to the Australian market as the Chinese companies use different programs but he presented no evidence to support that claim, nor has he satisfied the Tribunal that  he would be unable or find it difficult to acquire the skills necessary to get a job in China. The applicant presented no evidence of having sought employment in China and of having been unable to find a job. On the limited evidence before it, the Tribunal does not accept that  the applicant would be unable to find gainful employment in China.

1. The applicant provided to the Tribunal a copy of a loan agreement and told the Tribunal that he purchased a property earlier in 2021. The Tribunal accepts the applicant has a mortgage. The applicant states that he would experience financial hardship if his visa is cancelled as he would be unable to repay the mortgage. That may be the case at least in the short-term, if the cancellation of the visa will lead to loss of employment, however, the Tribunal is of the view that the applicant would have the option of selling his home. Again, the applicant presented no evidence of the current value of his assets and of his liabilities and on the evidence before it, the Tribunal does not accept that the applicant would experience financial hardship if his visa is cancelled. 

2. The applicant claims that he has a girlfriend, who is an international student. He claims that if he has to leave Australia, the relationship may break down. The applicant presented no evidence of that relationship. In the Tribunal’s view, if the applicant is in a genuine and committed relationship, that relationship can continue irrespective of the applicant’s visa status and country of residence.

3. The applicant states that he cannot keep up with cultural and social developments in China. It is not clear to the Tribunal why that would be the case, given the applicant’s ability to communicate in his native language, the fact that he grew up in that country, the presence of his parents in China, etc. While the Tribunal accepts that the applicant has spent a lengthy period of time in Australia, the Tribunal does not accept  that the applicant would experience any difficulty, or that he would be unable to, re-establish himself in China.

4. The applicant states that he has lived in Australia for 14 years and has established strong social and financial ties and is settled in Australia. The Tribunal accepts that evidence, although contrary to the applicant’s submission, that does not necessarily mean that the cancelation of his visa would cause ‘significant hardship’ to the applicant or his connections in Australia.

5. The applicant refers to his cat and states that the cat may not survive the long flight to China. The applicant has not provided any supporting evidence (such as a letter from a veterinarian) why that would be the case and the Tribunal does not accept the applicant’s evidence.

6. The applicant states that Ms Tan is settled in Australia, has two Australian citizen children and her partner, who is a holder of a temporary visa, will be unable to remain in Australia. The applicant refers to Ms Tan’s business which provides employment opportunities to Australian residents and citizens. The applicant states that Ms Tan’s income is the only source of income for her family and children and if her visa is cancelled, Ms Tan would be unable to support her children and provide income to her staff.  On 1 November 2021 Ms Tan provided a number of documents to the Tribunal concerning her business. The Tribunal accepts that  the business is operational and providing employment opportunities to others and income to Ms Tan’s family. The Tribunal also accepts that  in such circumstances, the cancellation of the visa may cause significant hardship to Ms Tan and her family, if the cancellation of her visa would lead to her departure from Australia.

7. Ms Tan provided a statement to the Tribunal on 27 October 2021 in which she outlined her present circumstances. Essentially, Ms Tan refers to her two young children and their settlement in Australia, stating that it would be difficult for them to move to China. Ms Tan refers to the significant investment her partner has made in Australia, stating that if her visa is cancelled, her partner would be unable to get the Australian visa. Ms Tan states that she has sponsored her parents whose visas would also be affected. Ms Tan repeated the same evidence in oral evidence to the Tribunal. The Tribunal accepts Ms Tan’s evidence and as noted above, the Tribunal accepts that considerable hardship would be caused to Ms Tan and her family if the applicant’s visa is 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

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

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

9. There are no other known instances of non-compliance with respect to the visa applicant.

   The time that has elapsed since the non-compliance

10. The application was made in January 2016 and close to six years passed since the non-compliance.

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

11. There are no known breaches of the law.

    Any contribution made by the holder to the community.

12. The applicant refers to his employment in a priority occupation and he provided to the delegate a letter of support from his employer. The applicant provided to the Tribunal evidence of having made donations and claims he is a regular contributor to the Red Cross. The Tribunal accepts that the applicant makes contribution to the community through employment, donations and social ties. The Tribunal also acknowledges the evidence concerning Ms Tan’s business connections and the provision of employment opportunities to Australia through her business.

13. 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.

14. The visa held by Ms Tan would be subject to consequential cancellation. Ms Tan’s circumstances are addressed elsewhere in this decision.

    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.

15. The applicant submits that Ms Tan’s two children are Australian citizens and if her visa is cancelled, the children may not be able to stay in Australia as her partner is a temporary visa holder. The applicant submits that China does not issue visas to foreign nationals and the children may not be able to travel to China. Ms Tan also referred in her oral evidence to the difficulties with travel due to Covid. The Tribunal acknowledges that evidence but is mindful that Ms Tan would be able to seek a Bridging E visa on departure grounds to enable her to remain in Australia until such issues are resolved.

16. Ms Tan’s evidence to the Tribunal is that her two children are Australian citizens. They are used to life in Australia and schooling. They have formed friendships. She states she does not want her children to lose the opportunity to remain in Australia.

17. The Tribunal accepts that Ms Tan’s children were born in Australia and had lived their lives in Australia and that they are used to life in Australia. The Tribunal is generally of the view that given the children’s young age (five years and 11 months), they would be easily able to adapt to life in any other country, including China. It is not uncommon for children to migrate to a new country with parents and there is nothing in the applicant’s or Ms Tan’s evidence that would indicate that these children’s particular circumstances would render them unable to adapt to the new environment or make it difficult for them to do so.

18. The Tribunal is of the view that given the children’s young age, it is in their best interests to be cared for by both parents.  However, this need not necessarily occur in Australia, irrespective of the children’s citizenship or country of birth. If Ms Tan is required to leave Australia as a result of the cancellation of the applicant’s visa, her partner may be unable to obtain the Australian visa and would also leave Australia. As such, the children would continue to be in the care of both parents irrespective of whether the children reside in Australia or in China. Ordinarily, this would mean that the best interests of a child would not be adversely affected if a parent’s visa is cancelled and if both parents leave Australia as a result and the family unit is preserved.

19. However, the Tribunal acknowledges that the situation in the present case is different because China does not recognise dual citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that “Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce”. The Tribunal acknowledges that if the children retain their Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the children are unlikely to be able to acquire the Chinese citizenship and that may mean that they do not have access to public systems including healthcare and education. It may be necessary for the children to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the children will require residence permits to remain in China on a long term basis.

20. The Tribunal accepts that the residence of the Australian citizen children in China, where they cannot acquire the Chinese citizenship without renouncing the Australian citizenship, and where they may be required to reapply for visas and routinely register with the local authorities and have limited access to government services may cause hardship to the family and the children. The Tribunal accepts that given her Australian citizenship, the children may experience significant limitations in various aspects of their lives in China, including residence permits, access to education, healthcare and employment unless the Australian citizenship is renounced and the Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of Ms Tan’s children require the children to remain in Australia and that the best interests of the children would be adversely affected by the cancellation of the applicant’s visa because it would lead to the automatic cancellation of Ms Tan’s visa. This is a primary consideration but it is not a determinative one.

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

21. The applicant does not claim, and there is no evidence, that Australia’s protection obligations arise in this case. The applicant has no family in Australia and the family unity obligations would not be breached as a result of the cancellation. Ms Tan’s children are Australian citizens but her partner does not have a permanent visa in Australia.

    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.

22. 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 is no longer a permanent resident of Australia, he may be unable to sponsor others for the Australian visas.

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

23. The applicant refers to financial and other hardship that would be caused to him by the cancellation. These matters are generally addressed above. The applicant presented a number of character references for himself and Ms Tan and the Tribunal acknowledges that those who provided the references believe the applicant and Ms Tan to be good persons.

24. Ms Tan’s evidence to the Tribunal is that her husband has invested $1,4 million in a new business and if their visas are cancelled, they would have to close the business and the employees would lose their jobs. Although there is little evidence before the Tribunal as to whether the husband’s business can be operated from another country, the Tribunal accepts that if the cancellation of the visa would result in the applicant having to leave Australia, it may result in the applicant’s businesses (which do appear to require her presence in Australia being closed. The Tribunal accepts that this may cause loss of employment to staff. Ms Tan also told the Tribunal that she has sponsored her parents for the Australian visas and they would be unable to migrate to Australia if her visa is cancelled. The Tribunal acknowledges that this is so.

25. The applicant told the Tribunal that her partner holds a temporary Partner visa. She is uncertain whether he can apply for another visa but if he does, he would have to meet PIC 4020 and other criteria. The Tribunal accepts that there can be no guarantee that  either Ms Tan or her partner would be granted other visas in Australia or that they will find other opportunities to remain in Australia. The Tribunal thus accepts that if the applicant’s visa is cancelled, there is a real possibility that Ms Tan may be required to leave Australia, at least in the immediate future. The Tribunal accepts that this would cause considerable hardship to Ms Tan and her family.

26. Ms Tan states that she has been living in Australia since she attended Year 11, for over 10 years, and she cannot imagine what she would do if she was to go back. The Tribunal accepts that  Ms Tan has spent considerable time in Australia and has formed significant ties in this country, including strong family ties, social, business and financial ties. As noted elsewhere, the Tribunal accepts that considerable hardship would be caused to Ms Tan and her family if the visas are cancelled.   

27. Ms Tan confirmed in oral evidence that when she sponsored her husband for the Partner vias in 2017, she approached the same agent because she trusted him and she did not check what was submitted in her husband’s application. The Tribunal finds that evidence odd, given that Ms Tan was aware (on her own evidence) that she obtained the Skilled visa on a false basis by claiming to be in a relationship with the applicant which she knew did not exist. It appears that when the applicant claims she ‘trusted’ the agent, Ms Tan trusted the agent to get the visa, not to be truthful when making the application. Ms Tan then confirmed to the Tribunal that she wanted to be consistent about her relationships when sponsoring her husband and that is the reason she approached the same agent. The Tribunal finds that  Ms Tan was well aware that the information that was being submitted in the Partner application made by Ms Tan’s husband was not truthful. That is, the Tribunal finds that  Ms Tan was aware of the falsehoods submitted in both applications but she chose to go ahead with such falsehoods anyway because her main concern was getting the visa, rather than being truthful in her dealings with Immigration.

28. The Tribunal has considered all the evidence before it. The Tribunal has found that the applicant had given incorrect answers on the application form and bogus documents and that he had not complied with ss. 101 and 103 of the Act, so there are grounds for cancelling his visa. The Tribunal accepts the cancellation of the visa would cause hardship to the applicant and considerable hardship to Ms Tan, particularly as her children are Australian citizens. The Tribunal has formed the view that it is in the best interests of Ms Tan’s children to remain in Australia and acknowledges that it is a primary consideration (albeit not a decisive one). The Tribunal accepts that both the applicant and Ms Tan have been living in Australia for lengthy periods and have formed social, employment and financial ties in this country, all of which may be affected by the cancellation, particularly if it is to lead to the parties’ departure from Australia. All these matters weigh heavily against the cancellation.

29. The Tribunal acknowledges the applicant’s evidence that he did not rely on de facto points to gain the visa and would have been granted the visa whether or not he was in a de facto relationship. (This may be true with respect to the allocation of points but fails to consider the implications of PIC 4020.) That would normally weigh against the cancellation. However, the Tribunal is mindful that in the particular circumstances of this case, the applicant’s visa is intertwined with Ms Tan’s visa and the outcome of the applicant’s visa would directly affect Ms Tan’s visa. It is not possible to separate the two. Thus, the Tribunal must have regard to the circumstances, as well as the conduct of both parties when reaching its decision.

30. While there are strong reasons why the visa should not be cancelled, there are other matters that favour the cancellation. In particular, while the Tribunal acknowledges the significant hardship that would be caused to Ms Tan and her family by the cancellation of the visa, the Tribunal places very significant weight on the fact that Ms Tan did not meet the primary criteria for visa grant and was only granted the visa on the basis of being the de facto partner of the applicant, which was not the case. That is, if the correct information was known, Ms Tan would not have been granted the visa. The incorrect answers and the bogus documents were central to the decision to grant the visa to Ms Tan and her desire to remain in Australia is an attempt to preserve the benefits to which she was not entitled. In the Tribunal’s view, that weighs very heavily in favour of the cancellation.

31. The Tribunal also places weight on the circumstances in which the non-compliance occurred. The applicant claims he did not see the documents that were submitted with the application and was not involved in the fraud. The Tribunal has found that evidence unpersuasive. The Tribunal does not accept that  the applicant was entirely unfamiliar with the content of the application form (which refers to his de facto relationship) and even if he did not check the documents submitted with the application, ion the Tribunal’s view, he was under an obligation to do so. This is not the case where there was an innocent mistake or a genuine misunderstanding. This is the case where there was a deliberate falsification of responses and evidence to obtain the benefit to which the applicants were otherwise not entitled to.

1. The Tribunal also places weight on the fact that  according to the information in the primary decision record, in 2017 Ms Tan made another visa application and claimed she did have the de facto relationship with the applicant which ended in 2016 when she found out she was pregnant. That is, Ms Tan continued to perpetrate the same lie as was included in the Skilled visa application. Ms Tan’s willingness to provide untruthful information to the Department is a strong reason in favour of the cancellation. Importantly, the Tribunal has formed the view that the applicant was also aware of the fraud and was complicit in it. The Tribunal has rejected the applicant’s evidence that he was too naïve to appreciate what was going on. The applicant’s involvement in immigration fraud weighs in favour of the cancellation.

2. While the Tribunal accepts that there are strong reason for the visa not be cancelled, including most importantly the best interests of Ms Tan’s two children and the various hardships that would be caused to the applicant and Ms Tan and her family (and others dependent on them) by the cancellation, the Tribunal has decided, in the particular circumstances of this case, to give greater weight on the significance of the breach, particularly in relation to Ms Tan’s visa, and the circumstances in which the non-compliance occurred. The Tribunal has formed the view that  both parties had been intentionally misleading and Ms Tan repeated the same conduct in the subsequent sponsorship of her husband. The Tribunal has decided that these factors should be given greater weight.

   Conclusion

3. 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

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

5. The Tribunal has no jurisdiction with respect to the other applicant.

   Kira Raif
   Senior Member