Wu (Migration)

[2022] AATA 2246

Wu (Migration) [2022] AATA 2246 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Peijia Wu

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2116772

HOME AFFAIRS REFERENCE(S):          BCC2021/1701441

MEMBER:Kira Raif

DATE:1 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2022 at 9:00am

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) – Subclass 189 (Skilled – Independent) – bogus documents provided with visa application – bank statements and mobile phone bills to support claimed de facto relationship – discretion to cancel visa –claim that agent altered documents – indifference or recklessness to contents of application – long stay, work and financial and personal ties – relationship ceased – not necessary to decide whether claimed relationship existed – decision under review set aside

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

2. The applicant is a national of China born in February 1990. She was granted the Skilled visa on 19 August 2016. In September 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 11 November 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

6. 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?

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

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled visa in May 2016. In that application, the applicant claimed to be in a de facto relationship with Mr King Man Luk, stating that their relationship began in May 2015. The applicant completed a declaration that the information in the application and in the attachments was complete and correct.

9. In support of her claimed relationship with Mr Luk, the applicant provided a number of documents, including:

   a.Three joint bank statements issued by the Commonwealth Bank, in the applicant’s and Mr Luk’s names, addressed to an address in Campsie. These are dated between December 2014 and March 2015;

   b.A Virgin Mobile phone bill sent to the applicant at the Campsie address, dated March 2016;

   c.Two bank statements from the Commonwealth Bank, addressed to Mr Luk at the Campsie address, for the period from December 2014 to December 2015.

10. The applicant and Mr Luk were granted the Skilled visas on 19 August 2016. The primary decision record indicates that following the visa grant, the Department carried out an investigation of the above documents and determined that the residential addresses shown on these documents did not match the addresses registered to these documents. The delegate concluded these were bogus documents.

11. In her response to the NOICC, the applicant states that the correct address on the Commonwealth Bank statements should have been the Campsie address but it was her personal account. The applicant states that the Virgin Mobile phone bill was issued at the Burwood address and she had no knowledge about the address on Mr Luk’s bank statement. The applicant states that she provided genuine personal documents to the representative who submitted the application on her behalf but without her knowledge. The applicant states that she did not alter the documents and was unaware that they have been altered. The applicant states that upon reviewing the file, she discovered other suspicious documents, such as a lease agreement (claiming she and Mr Luk never signed a lease agreement together), evidence of joint travel and the ‘love story’. The applicant states that she did not have a joint account with Mr Luk and believed the agent altered her personal account. The applicant states that despite their relationship, she never signed a lease agreement with Mr Luk. The applicant submits that the agent altered the documents without her authority but she admits that she was reckless when making the application.

12. In her written statement to the Tribunal dated 20 June 2022, the applicant also describes meeting Mr Luk and the formation of their relationship. She claims they first met around May–June 2014 at a hair salon where Mr Luk worked, started chatting on WeChat in early 2015 and became closer in the ensuing months and started a relationship around May 2015. The applicant states that they informed each other’s parents about the relationship and she met Mr Luk’s mother and attended family functions. The applicant refers to having a stable relationship. She states that Mr Luk’s mother introduced an agent to them and she trusted the agent and provided personal documents and photographs to the agent. The applicant states that in October 2016 she accidentally met Mr Luk’s former girlfriend and discovered they had a child, and so the relationship ended. In oral evidence, the applicant also told the Tribunal that she did have a de facto relationship with Mr Luk and trusted the agent who was introduced by his mother. The applicant states that she did not check the papers submitted by the agent, which was her mistake.

13. The Tribunal questioned the applicant about her relationship with Mr Luk. She claims it was a genuine one, she believed they were “soul-mates” and was making long-term plans to live with Mr Luk but now she questions whether he used her. For the purpose of this decision, it is not necessary for the Tribunal to determine if the applicant’s relationship with Mr Luk was a de facto one that would have met the statutory requirements relevant to the grant of the Skilled visa because the NOICC only refers to the breach of s 103 and not to the breach of s 101 and the breach of s 103 is established irrespective of the nature of the applicant’s relationship with Mr Luk.

14. The applicant’s evidence is that she and Mr Luk did not have a joint bank account and that the phone bills were addressed to a different address. She also did not have a joint lease agreement with Mr Luk. Having regard to the applicant’s evidence, the Tribunal finds that the documents referred to above (joint bank accounts and phone bills addressed to the Campsie address) are bogus documents because they had been altered by a person without authority. The Tribunal finds that the applicant had given, presented or provided to an officer, the Minister or an authorised system bogus documents, or caused such documents to be given, presented or provided (whether or not she was personally involved in the alteration of documents or even aware of these). The Tribunal finds that the applicant had not complied with s 103 of the Act. The Tribunal finds that there was non-compliance with s 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

16. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: ss 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Migration Regulations 1994. They are as follows.

    The correct information

17. This is not relevant in the present case.

    The content of the genuine document (if any)

18. The applicant confirms in her evidence that she and Mr Luk did not have a joint account but she claims they shared their finances, for example, Mr Luk contributed some of the rent and they shared expenses for groceries and social activities. Whatever arrangements, the Tribunal finds that genuine documents would not show the applicant and Mr Luk residing at the same address, nor the sharing of their finances through a joint bank account. The applicant also refers in her response to the NOICC to other bogus documents, such as a joint lease agreement (stating that she and Mr Luk never had a joint lease agreement) and evidence of joint travel, though the applicant confirms they had not travelled together.

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

19. In her submissions to the delegate and the Tribunal, the applicant claims that the decision to grant her the visa was not at all based on incorrect information as she did not claim partner points and her relationship was irrelevant to the visa eligibility. The Tribunal does not accept that. Had the applicant not included Mr Luk in her application, it is possible that she may have met the visa requirements for the grant of the Skilled visa. However, that is not necessarily the case once the applicant made the decision to include Mr Luk in her application and provide evidence of their relationship. The applicant would have been required to meet PIC 4020 when she made the application. It is not in dispute that the applicant presented bogus documents with her visa application, such as the bank statement and phone bills, and she also refers in the NOICC response to a bogus lease agreement. If it was known that the applicant provided bogus documents with the visa application, it may have affected the delegate’s assessment of whether the applicant met PIC 4020. The Tribunal finds that the decision to grant the visa was based, in part, on bogus documents.

    The circumstances in which the non-compliance occurred

20. The applicant claims in her written evidence that she met Mr Luk in 2014 and in 2015 they started a relationship. In her evidence to the Tribunal, the applicant described her relationship with Mr Luk, stating that they did have a de facto relationship. She stated that he stayed at her place at Campsie most of the week but he also kept his apartment in Mascot because he could not break the lease. The applicant provided to the Tribunal a copy of Mr Luk’s car insurance policy with the Mascot address as the address where the car was parked but it was addressed to the Campsie address and showing the applicant as a driver. The applicant told the Tribunal that at first the relationship was good and she also formed a good relationship with Mr Luk’s mother. They were planning their future together, purchasing a property, getting married and living together. Later they had arguments because he was texting female clients and spending time with them, and because of other reasons, such as her dog, and during these arguments he would move to his own home for a couple of days. The applicant said she did not know about Mr Luk’s child until she saw Mr Luk with the child and his ex‑girlfriend by accident, and even though Mr Luk claims he had had no contact with the ex‑girlfriend during their relationship she no longer believes him. The applicant claims that now she thinks he may have used her to get the visa. The applicant states that around late October 2016 she realised that Mr Luk had a child with another person and the relationship ended and she has had no contact with him since. The applicant provided to the Tribunal evidence from third parties confirming the existence of a relationship.

21. The Tribunal is prepared to accept that the applicant genuinely believed there was some form of relationship between herself and Mr Luk, although the Tribunal has considerable concerns as to whether it was a genuine de facto one (that would have met the statutory criteria), and that it was to the exclusion of all others.

22. The applicant claims that she knew nothing about visas, so she approached a migration agent and gave only genuine documents to the agent. The applicant told the Tribunal that she trusted Mr Luk and his mother and did not check the application form, nor had she signed any contract with the agent, and she was not sure what the agent’s fees were. The applicant claims she did not know that the agent had falsified some of the documents, nor had she authorised it. The applicant told the Tribunal that she was too young at the time the application was made and trusted Mr Luk and his mother too much, but now she would make sure she would check the paperwork.

23. The Tribunal accepts that the applicant was not personally involved in the fabrication of documents and is prepared to accept that she was unaware that the bogus documents were prepared and were submitted with her application. However, the Tribunal also acknowledges the applicant’s evidence that she took no steps to check the content of the application and ensure its genuine content.

    The present circumstances of the visa holder

24. The applicant claims in her response to the NOICC that she entered Australia over 10 years ago and completed her Bachelor of Commerce in Accounting and Finance in 2014 and a Masters of Commerce in 2021. The applicant refers to her past employment in accounting and her recent qualification as a CPA. The applicant refers to the purchase of her home in 2019 and the mortgage obligations. In her submission to the Tribunal of 14 June 2022, the applicant provided evidence of her past study and her qualification as a CPA and evidence relating to the home loan. The Tribunal accepts that evidence.

25. The applicant presented to the Tribunal a statement from her supervisor at work, who refers to the applicant’s contribution to the business. In her statement of 20 June 2022, the applicant refers to her contribution to the employer WH Smith, outlining her responsibilities and stating that she is the only person who can perform certain tasks. The applicant refers to the company’s losses due to COVID-19 and the difficulties in finding staff and states that her experience and knowledge play a significant role in increasing the company’s revenue and it would be a loss to her employer if she cannot work for them. The applicant provided to the Tribunal a statement from Ms Varela, financial controller of WH Smith, and the Tribunal accepts the evidence in that statement.

26. The applicant also presented evidence of her voluntary activities. The Tribunal generally accepts that the applicant has been living in Australia for a lengthy period and in that time has formed significant social, employment, financial and other ties in this country.

27. The applicant told the Tribunal that her accounting and CPA qualifications would not be accepted in China which relies on a different system. The applicant states that she tried to find a job in China in 2019 because she wanted to spend more time with her grandmother, but she could not find a job given her age and single status. The applicant refers to the discrimination of single women over 30 in China. The applicant presented no evidence of her job search but the Tribunal is prepared to accept that the applicant may not be able to work as an accountant in China with her Australian qualifications and that it may be difficult for her to find a job, at least initially, but in the absence of probative evidence about the job opportunities that may be available to her in the Chinese market, the Tribunal does not accept the applicant would be unable to find gainful employment in China, even if it is in a different field.

28. The applicant refers to having strict parents and states that they would be very disappointed if she cannot live in Australia as she has already settled in this country and has bought a property. Her parents believe she would remain in Australia and sponsor them for the Australian visas once her father retires. The Tribunal accepts that if the applicant’s visa is cancelled, her parents would be disappointed and also she would not be able to sponsor her parents for the Australian visas.

29. In her submission to the delegate, the applicant refers to having a relationship but she told the Tribunal that the relationship has ended.

30. The applicant refers to having purchased a property and her outstanding mortgage repayments. She provided to the Tribunal evidence of a property purchase and of mortgage repayments. She states that if her visa is cancelled, she may not be able to meet the repayments and she may have to sell the property. The Tribunal accepts that this may be the case.

31. The applicant refers to having a rescue dog, stating that she would take the dog with her to China, but the dog may be too old to travel. In the absence of any health records or, for example, a statement from a vet, the Tribunal does not accept that evidence.

32. The applicant refers to the length of her stay in Australia and the friendships she has formed. The applicant states that she relies on her friends and they provide each other with emotional support. The applicant states that these friendships would be lost if she is to leave Australia. The Tribunal acknowledges that relationships may be affected but does not accept that friendships cannot continue irrespective of the applicant’s country of residence.

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

33. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

35. The application was made in May 2016 and approximately six years passed since the non‑compliance.

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

36. There are no known breaches of the law.

    Any contribution made by the holder to the community

1. The applicant refers to the payment of taxes and her qualifications. She provided to the Tribunal a statement from her employer who refers to the contribution the applicant has made to the company. The Tribunal accepts the applicant has contributed to the community through employment and the payment of taxes. The applicant also provided evidence of her voluntary activities and contributions, and the Tribunal accepts that she has contributed to the community through such activities.

2. 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

3. The visa held by Mr Luk may be subject to consequential cancellation (the delegate claims there are no consequential cancellations). The applicant told the Tribunal that she has had no contact with him since the breakdown of the relationship.

   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

4. The applicant’s evidence to the Tribunal is that there are no children who would be affected by the cancellation. The representative submits that any children of Mr Luk may be affected by the cancellation of the applicant’s visa but Mr Luk’s visa has not been cancelled consequentially under s 140 (and therefore would not be automatically reinstated if the applicant’s visa is reinstated), and in these circumstances the Tribunal does not accept that the cancellation of the applicant’s visa would have an effect on Mr Luk’s children.

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

5. There is no evidence, and the applicant does not claim, that the cancellation of her visa would be in breach of Australia’s non-refoulement obligations. The applicant has no family in Australia and the Tribunal is satisfied the cancellation would not breach family unity 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

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

7. The cancellation of the visa would result in the applicant losing some of the entitlements she may have acquired as a permanent resident of Australia, including the ability to sponsor her parents for the Australian visas. The applicant would also lose her eligibility to seek Australian citizenship if she is not a holder of a permanent visa.

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

8. The applicant refers to the hardship she would experience if her visa is cancelled. The applicant refers to the length of her stay in Australia and her settlement here. The applicant states that her parents had sold an investment property to help her purchase a property in Australia and she does not know what would happen. The applicant states that given her age, she would be under pressure to marry quickly in China. The applicant states that her parents would be disappointed if she cannot remain in Australia. The Tribunal accepts all of these claims.

9. The applicant provided several character references and the Tribunal accepts that those who provided references believe the applicant to be a good person. The applicant provided her driving record and the Tribunal acknowledges that evidence.

10. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s 103 of the Act and that there are grounds for cancelling her visa.

11. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant because of the length of the applicant’s stay in Australia, the degree of her settlement here and the extent of her ties in Australia. The Tribunal accepts that the applicant has a stable job and acknowledges the evidence from her employer that the applicant is instrumental in the role she plays in the company. The Tribunal accepts that some hardship would be caused to the employer if the visa is cancelled, at least in the short‑term. The Tribunal accepts that if the cancellation of the visa is to result in the applicant having to depart Australia, this may cause financial hardship to the applicant, may affect her ability to repay the home loan and would jeopardise her parents’ ability to migrate to Australia. The Tribunal generally accepts that the applicant has extensive ties to this country, including social ties, and that these may be affected if she was to leave Australia as a result of the visa cancellation. All these factors weigh against the cancellation.

12. The Tribunal has formed the view that the cancellation of the visa would not be in breach of Australia’s international obligations. The Tribunal also recognises that the applicant has made a contribution to the community.

13. Importantly, in this case, the Tribunal has formed the view that the applicant genuinely and subjectively believed she had a de facto relationship with Mr Luk (and for the purpose of this review, it is not necessary for the Tribunal to determine whether such a relationship existed), so the inclusion of Mr Luk in the application was, from the applicant’s perspective, neither unreasonable nor fraudulent. Whether or not Mr Luk had any commitment to the relationship or whether he viewed it as a genuine one or an exclusive one, the Tribunal has formed the view that the applicant did. In the circumstances of this case, the Tribunal does not place any adverse weight on the fact that Mr Luk was included in the application as a secondary applicant because the Tribunal has formed the view that the applicant believed she was in a relationship with him.

14. The Tribunal has formed the view that the applicant had not taken any steps to ensure the correct content of her visa application. Had she done that, it would have been obvious to the applicant that the application contained bogus documents, and the applicant’s indifference about the content of her application, and the circumstances in which the non‑compliance occurred, weigh in favour of the cancellation. However, the Tribunal accepts that the applicant was not personally involved in the preparation of bogus documents and was unaware of these. She was not involved in the perpetration of fraud. She had not authorised it, nor was she aware of it.

15. In these circumstances, the Tribunal has decided to place greater weight on the hardship that the cancellation of the visa would cause to the applicant and others, and the applicant’s contribution to the community.

16. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Kira Raif
    Senior Member