Xia (Migration)

[2022] AATA 2002

Xia (Migration) [2022] AATA 2002 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yan Xia

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER:  2112195

HOME AFFAIRS REFERENCE(S):          BCC2019/3330286

MEMBER:Kira Raif

DATE:22 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 22 April 2022 at 12:14pm

CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – applicant provided incorrect information – bogus document – applicant did not have a de facto relationship with Ms Liu – cancellation of the visa would result in significant hardship for the applicant and his family – best interest of the applicant’s child – applicant’s intentional involvement in the fraud  – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 103, 109
Migration Regulations 1994, r 2.41, Schedule 2

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicant is a national of China, born in May 1989. He was granted the Skilled Nominated Subclass 190 visa in November 2016. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s 101 and s 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision. 

3. The applicant appeared before the Tribunal on 19 April 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 affirmed.

   Relevant law

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

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

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 ss 101 and 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 Subclass 190 Skilled visa on 22 May 2016. In that application the applicant included Ms Xiao Xuan LIU as a de facto partner and a member of the family unit. The applicant stated in a statement that accompanied the visa application that he and Ms Liu commenced residing together as de facto partners from October 2014.

9. The applicant completed the application form in which he stated that he was in a de facto relationship from October 2014. The applicant gave the name of his de facto partner as Xiao Xuan Liu and he completed a declaration that all information in the application was complete and correct.

10. The applicant included a number of documents with his application. As evidence of his relationship with Ms Liu, the applicant provided:

    -Commonwealth Bank statements for the period from January 2015 to June 2015 in his own name, issued to an address at Rhodes,

    -Vodafone phone bills for the period from March to July 2016 addressed to the same Rhodes address,

    -Undated and unsigned statements, purportedly written by himself and Ms Liu, entitled ‘love story’.

11. The applicant and Ms Liu were granted the skilled visas on 29 November 2016. Following the visa grant, the Department conducted a forensic examination of the Vodafone phone bills and Commonwealth bank records and found that the residential addresses shown on these documents did not match the addresses registered to these documents. The delegate concluded that these documents were bogus documents and that the applicant did not comply with s 103 of the Act. The delegate also concluded that the applicant’s statement about his claimed relationship with the secondary applicant was incorrect and the applicant did not comply with s 101 of the Act.

12. In his response to the NOICC the applicant stated that a friend recommended a migration agent to him and the agent requested some personal documents and when he later decided not to go ahead, the agent refused to return his documents. The applicant claims he reluctantly agreed to go ahead and provided more information to the agent. The applicant claims the agent created a different email address and did not inform him of what was in the application. The applicant states that he only provided genuine documents to the representative and was unaware of what documents were submitted on his behalf.

13. The Tribunal finds the applicant’s evidence unpersuasive. The applicant was proficient in English and had received a tertiary degree in Australia, so he had some familiarity with Australian processes. In the Tribunal’s view, he had the skills and the wherewithal to check the content of his application. If the applicant was completely ignorant of the content of his visa application, as he claims, that shows that the applicant was indifferent about it because he would have had the opportunity (and an obligation) to check what was being submitted on his behalf.

14. In oral evidence the applicant also stated that he approached an agent in 2016. He did not personally alter the documents but takes full responsibility for what was submitted to the Department. The applicant confirmed that he did not have a de facto relationship with Ms Liu. He states that he first met her in a park, the meeting was arranged by a lawyer, and they took some pictures. The applicant states that he asked the lawyer why they wanted pictures but never got an answer. The applicant admits that the lawyer told him that the photos were being taken to make them look like a couple. The applicant confirmed that he was aware that Ms Liu would be included in the visa application as his de facto partner. When asked why he went ahead with it, the applicant stated that he thought about stopping it multiple times and does not know why he went along with it.

15. The Tribunal finds, having regard to the information in the primary decision record, that the Commonwealth Bank statements and Vodafone bills had the addresses altered, so the documents were altered by a person without authority. The Tribunal finds that these are bogus documents. Whatever the applicant’s involvement in the provision of these documents, the Tribunal finds that the applicant gave, or caused to be given, bogus documents with his visa application. The Tribunal finds that the applicant did not comply with s 103 of the Act in the way described in the notice.

16. The Tribunal further finds, having regard to the applicant’s oral evidence, that he did not have a relationship with Ms Liu. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s 101 of the Act in the way described in the notice.

    Should the visa be cancelled?

17. 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).

18. 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 reg 2.41 of the Migration Regulations1994. They are:

    The correct information

19. The correct information is that the applicant did not have a de facto relationship with Ms Liu.

    The content of the genuine document (if any)

20. Genuine documents would not show that the applicant and Ms Liu had been living at the same address. Genuine documents would not evidence the applicant’s cohabitation and de facto relationship with Ms Liu.

    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

21. In his submission to the delegate the applicant claims that he met the visa requirements, including health and character, without the secondary applicant and did not rely on additional points for having a partner. The applicant states that he would have been granted the visa irrespective of the secondary applicant. The Tribunal accepts that the applicant did not rely, and did not need to rely, on the secondary applicant to gain additional points and that he may have been eligible for the visa if he did not include the secondary applicant in his visa application. However, that is not necessarily the case, once the applicant made the decision to include Ms Liu as the secondary applicant. That is because the applicant gave bogus documents with his visa application (even if his claim that he was unaware of the provision of bogus documents is accepted) and he would therefore need to meet the requirements of public interest criterion (PIC) 4020 or the waiver of that criterion. The Tribunal is also of the view that claiming to be in a relationship with another person when such a relationship does not exist, for visa purposes, represents serious misconduct that would have been relevant to the assessment of the applicant’s character. Thus, while the applicant may well have been entitled to the visa if he did not include the secondary applicant, the Tribunal finds that once he did include the secondary applicant in the visa application, the decision to grant him the visa was based on bogus documents.

    The circumstances in which the non-compliance occurred

22. The applicant claims in his submissions to the delegate, essentially, that he entrusted his application to a migration agent / legal practitioner and gave genuine documents to his representative and was unaware of the information included in the application. As noted above, the Tribunal does not accept the applicant’s claim that he was unaware of the content of his application and was entirely ignorant of what was being submitted on his behalf.

23. In oral evidence, the applicant told the Tribunal that he was aware that the agent told him he would include Ms Liu as his de facto partner. The agent also told him that they would be falsifying documents in his application to prove the relationship and he also took some photos with Ms Liu to prove the relationship. Thus, even if the applicant was not aware of the precise nature of the fraud, and did not see the bogus documents, the Tribunal finds that the applicant was aware of the fraud, had authorised it and was complicit in it.

    The present circumstances of the visa holder

24. The applicant provided detailed information about his present circumstances in his response to the NOICC and evidence to the Tribunal.

25. The applicant told the Tribunal that he has made an application for a Resident Return visa and his application is pending. The Tribunal is mindful that since the applicant has another application for a substantive visa that has not been finally determined, he would not be required to leave Australia whether or not his present visa is cancelled until that application is resolved.

26. The applicant refers to completing study in Australia and his employment. He provided with his response to the NOICC a character reference from his supervisor and he refers in his statement to receiving a bonus in recognition of his outstanding performance at work. The applicant refers to the effect of COVID on the construction industry, stating that it is difficult to recruit and the fact that he has been given a significant pay increase shows, the applicant submits, that he is valued by the company and the company needs him to continue in his role. The applicant states that his ongoing employment is crucial for the company and it would be difficult to replace him. The applicant claims, and the statement from the employer suggests, that it would be difficult to find a replacement for the applicant and that it may affect the project if the applicant was to leave. The Tribunal finds that evidence problematic because the applicant is entitled to leave his employer at any time and in the Tribunal’s view, any sensible employer would make appropriate provisions for staff movement, even at times when it is hard to find staff such as during COVID. The Tribunal does not accept that the applicant is irreplaceable and is also mindful that several months have now passed since his visa was cancelled, so the employer was put on notice of the fact that the applicant may not be permitted to remain in Australia and that a replacement may be required (unless the employer is willing to sponsor the applicant for another visa). Thus, while the Tribunal accepts that the applicant’s departure from Australia (which is not necessarily the consequence of his visa being cancelled) may cause some hardship to the employer in the short term, the Tribunal does not accept that projects would suffer or that the applicant’s employer will experience hardship in the longer term as a result of the applicant’s visa being cancelled.

27. The applicant refers to the length of time he has spent in Australia (having arrived in September 2013) and the links he has formed in this country. The applicant refers to having purchased a home in Australia and he provided evidence of property ownership and of the home loan. The Tribunal accepts that evidence. In particular, the Tribunal accepts that the applicant has formed significant family, social, financial, employment and other links to Australia.

28. The applicant provided to the Tribunal evidence of his current relationship with Ms Jiang, including evidence of their travel, photographs, evidence of a loan and other material. The primary decision record indicates that the applicant has sponsored his partner Ms Jiang for a Partner visa which was granted in July 2020. It is stated that they are expecting their first child in September 2021 and the applicant provided to the Tribunal evidence of the child’s Australian citizenship. The Tribunal accepts that the applicant’s partner and Australian citizen child are in Australia. The Tribunal accepts that the applicant has strong family ties in Australia and is mindful that his partner – who is the holder of a permanent Australian visa – can act as a sponsor for the applicant, should he decide to make a Partner visa application in the future. The Tribunal acknowledges that there may be certain restrictions associated with that visa application, including PIC 4020, the application of Item 3001 and, potentially, sponsorship limitations in reg 1.20J. The Tribunal also acknowledges that the visa held by the applicant’s partner may be cancelled under s 140 although at present there is no evidence that any steps are being taken for such cancellation to occur.

29. The applicant provided to the Tribunal a very brief statement from Mou In Li stating that the applicant’s partner Ms Jiang suffers from anxiety and depression and requires ongoing support and management due to her condition. The Tribunal considers that report highly unsatisfactory as it fails to specify the basis on which the diagnosis was made, the treatment that has been provided to Ms Jiang, nor does it make any reference to the applicant’s involvement (if any) in managing Ms Jiang’s condition.

30. In his statement provided shortly before the hearing, the applicant states that his wife’s mental state was ‘gravely hit’ by the cancellation of his visa and she was diagnosed with postpartum depression following the birth of their child, which continues to exist. The applicant states that she has been receiving counselling but she still sometimes ‘goes into a depressive state’ and his mistakes could affect her and their child’s future. The applicant refers to his wife’s mental state following the birth of their child and states that her mental state has also been affected by the possibility that her visa may be cancelled. The applicant states that they are concerned that if they depart Australia, they will not be able to provide the best for their child. The Tribunal accepts that evidence and accepts the family’s concern about their future and the future of their child. The Tribunal is mindful, however, that the cancellation of the applicant’s visa need not necessarily lead to the cancellation of his wife’s visa (while that may occur, as noted above, the applicant’s evidence is that there is nothing to indicate the Department has taken any steps to cancel the wife’s visa, even if there is a basis for it).

31. The applicant states that he and his wife have no family support in Australia and his wife had to take maternity leave with no pay to take care of the child and he is the sole provider for the family. The applicant refers to his long working hours and states that he can barely make ends meet. The Tribunal is prepared to accept that evidence, although these circumstances do not seem to stem from the cancellation of the applicant’s visa.

32. The applicant told the Tribunal that since arriving in Australia, both he and his wife had spent only limited time in China and both have formed strong ties in Australia. The Tribunal accepts that evidence.

33. The applicant told the Tribunal that he was an environmental engineer in China but has no experience in that field in Australia. He works as a construction engineer in Australia but has no relevant papers to do that work in China. The Tribunal accepts that it may be difficult for the applicant to find employment in his field although there is no evidence as to whether alternative employment may be available. The applicant told the Tribunal that he wanted to work as an English teacher but the private sector has been closed by the authorities and that work is no longer available. The Tribunal accepts that may be the case.

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

34. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act. The Tribunal acknowledges the applicant’s expression of regret for the provision of bogus documents and incorrect answers.

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

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

    The time that has elapsed since the non-compliance

36. The application of the skilled visa was made in May 2016. Close to six years has passed since the non-compliance. The applicant refers to his social relationships formed in that period, family and the presence of his child in Australia.

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

1. There are no known breaches of the law.

   Any contribution made by the holder to the community

2. The applicant refers to his role in managing a project and his education and skills. He claims his role in the construction industry with a leading employer contributes to the economic growth of Australia. The applicant told the Tribunal that his colleagues respect him at work. The Tribunal accepts that the applicant contributes to the community through employment and skills.

3. 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

4. Ms Liu was granted her visa because the applicant was granted the visa and her visa may be subject to a consequential cancellation. The primary decision record also indicates that the applicant has sponsored his partner for a Partner visa, which was granted. That visa may also be subject to consequential cancellation under s 140 of the Act.

   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

5. The applicant’s son was born in September 2021 and is an Australia citizen. The Tribunal is generally of the view that given the child’s young age, the child 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 evidence that would indicate that the family’s or the child’s particular circumstances would render him unable to adapt to the new environment or make it difficult for him to do so.

6. The Tribunal is of the view that given the child’s young age, it is in his best interests to be cared for by both parents. However, this need not necessarily occur in Australia, irrespective of the child’s citizenship or country of birth. If the applicant is required to leave Australia as a result of the cancellation of his visa, his partner’s visa may not necessarily be cancelled and she may remain in Australia with the child, or may choose to leave Australia with the applicant and the child. If she does so, the child would continue to be in the care of both parents irrespective of whether the child resides in Australia or in China. Similarly, if the applicant’s partner retains her visa and sponsors the applicant for a Partner visa, both parents can continue to care for the child in Australia. 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 remain in Australia or leave Australia as a result and the family unit is preserved.

7. However, the Tribunal recognises that there is an added complication in this case 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 child retains his Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the child is unlikely to be able to acquire the Chinese citizenship and that may mean that he does not have access to public systems including healthcare and education, should the family return to China. It may be necessary for the child to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the child will require residence permits to remain in China on a long-term basis and that any Chinese visa would need to be periodically renewed.

8. The Tribunal accepts that the residence of the Australian citizen child in China, where he cannot acquire the Chinese citizenship without renouncing the Australian citizenship, and where he 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 child. The Tribunal accepts that given the child’s Australian citizenship, he may experience significant limitations in various aspects of his life 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 the applicant’s son require the child to remain in Australia and that the best interests of the child would be adversely affected by the cancellation of the applicant’s visa.  

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

9. There is no evidence, and the applicant does not claim, that the cancellation of his visa would lead to his removal in breach of Australia’s non-refoulement obligations. The applicant told the Tribunal that he lived in Xinjiang, an autonomous region, prior to migrating to Australia and there is strict government control as a result of which there may be more limited job opportunities but the applicant expressly stated that he would not be subjected to persecution upon return to China.

10. The applicant’s immediate family (partner and child) are in Australia. The applicant’s partner is a permanent resident of Australia and as such, can sponsor the applicant for an Australian visa in the future. That means the family unit would remain intact. If the visa held by the applicant’s partner is cancelled as a consequence of the cancellation of the applicant’s visa, then the entire family can depart Australia. In that case, the family unit will also remain intact. The Tribunal does not consider that the cancellation of the applicant’s visa would breach the 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

11. If the applicant’s visa is cancelled, and unless he 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 application, due to operation of s 48, and may be subject to an exclusion period in relation to some future visa applications. The cancellation of the visa would result in the applicant losing some of the entitlements he may have acquired as a permanent resident of Australia, including the ability to sponsor others for Australian visas. (As noted above, the cancellation of the applicant’s visa may result in the cancellation of the visa held by his partner.) The applicant would also lose his eligibility to seek Australian citizenship if he 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)

12. The applicant refers to his settlement in Australia and as noted above, the Tribunal accepts the applicant is settled in Australia. The applicant states in his submission to the Tribunal that he had only returned to China on four occasions since he came to Australia and has no social relationships in China, given the time he has spent in Australia. The Tribunal is mindful, however, that the applicant had spent the majority of his life in China, and obtained his tertiary education there, so it is difficult to see why the applicant would not have contacts in China. The applicant has also been able to form friendships and relationships in Australia, despite this being a new country for him, with a different culture and language and environment. The applicant’s ability to settle in a new country such as Australia suggests, in the Tribunal’s view, that the applicant would be equally able to re-establish himself in China, if he has to return to his home country.

13. The applicant claims that his work experience is targeted for the Australian industry and would be ‘useless’ in China. The applicant states that it would be difficult for him to obtain a job in China as his experience is not relevant to his degree and he has no practical experience in the field. The applicant refers to his age and states that it would be difficult to compete with younger graduates. The applicant told the Tribunal that he could no longer work as an English teacher because the industry has changed. The applicant states that if he cannot find a job, he would be unable to pay the mortgage and support his family. The applicant states that his partner would also find it difficult to get a job in China. The Tribunal is mindful that the applicant did obtain a degree in China and he presented no evidence of having looked for employment, either in the field he has worked in in Australia or a different / related field. The Tribunal does not accept on the limited evidence before it that the applicant would be unable to find a job in China, even if it is in a different field. However, the Tribunal accepts that the applicant may experience some difficulty finding a job, at least initially, if he was to return to China, and that there may be financial hardship caused to the applicant and his partner, at least in the short term, if the applicant was required to return to China and look for a job in China.

14. The applicant refers to having allergies when in China and states that he is fearful that if he returns to China, his allergy will return, affecting his daily life and his ability to find a job. The applicant presented no medical or otherwise probative evidence to support that claim. That is, there is no satisfactory evidence before the Tribunal to indicate that if the applicant was to live in China (if that is the consequence of his visa being cancelled), he would experience allergies or that his health and well-being would otherwise be adversely affected. The Tribunal is not prepared to accept the applicant’s claims (which appears to be mere speculation) without probative supporting evidence.

15. The applicant refers to his partner’s post-natal depression and ongoing treatment. The Tribunal accepts that evidence but is mindful that the applicant has not presented any evidence about the availability of treatment in China (even if the cancellation of the applicant’s visa was to result in his partner having to leave Australia, which is not automatically the case). There is no evidence before the Tribunal to indicate that  appropriate treatment would not be available to the applicant’s partner in China, noting that post-natal depression is not exclusively an Australian phenomenon and on the limited evidence before it, the Tribunal is not satisfied that the applicant’s partner would be unable to receive adequate treatment if the cancellation of the applicant’s visa was to lead to her departure from Australia.

16. Generally, the Tribunal accepts that the cancellation of the visa would result in significant hardship for the applicant and his family. The applicant claims that his partner is innocent and should not be penalised for his mistakes and the Tribunal acknowledges that evidence. The partner’s visa has not been cancelled but the Tribunal acknowledges there is a possibility this will occur. 

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant has not complied with s 101 and s 103 of the Act and that there are grounds for cancelling his visa.

18. The Tribunal accepts that the cancellation of the visa would cause significant hardship to the applicant and his family. This is because the applicant has strong family, employment, financial and other ties in this country, where he has been living for many years, and if the cancellation of the visa was to lead to the applicant having to depart Australia, such ties may be affected. In particular, the Tribunal accepts that the applicant’s partner depends on him financially, that the family has financial obligations such as the home loan and that the applicant is the sole breadwinner for the family at present. The Tribunal accepts that the applicant is well regarded by his employer and the community. The Tribunal is prepared to accept that the cancellation of the visa could cause some hardship to the applicant’s employer. The Tribunal accepts that the applicant may find it difficult, at least immediately, to find employment in China and this will also contribute to the financial hardship. The Tribunal accepts that the applicant’s present circumstances and various commitments could be adversely affected if he was required to depart Australia as a result of his visa being cancelled and if that was to happen, there would be a significant degree of hardship caused to the applicant and his family.

19. The Tribunal has found that the cancellation of the visa would not be in the best interest of the applicant’s child. The Tribunal acknowledges it is a primary consideration (but not a determinative one). The Tribunal is also prepared to accept that the applicant’s employment is of benefit to his employer and that the employer would prefer to keep the applicant and not release him. The Tribunal is prepared to accept that some hardship would be caused to the company, at least in the short term, if the cancellation of the visa will result in the applicant having to depart Australia. The Tribunal accepts the applicant has contributed to the community through his employment and skills and that he may find it difficult, at least initially, to find employment in China.

20. The Tribunal has found that the cancellation would not be in breach of Australia’s non-refoulement obligations.

21. The Tribunal acknowledges the applicant’s repeatedly expressed regret for his past actions. However, the Tribunal is also mindful that at no time did the applicant contact the Department to inform the Department of the incorrect information or the bogus documents. He seems to have been content to rely on the provision of bogus documents and false information as long as he was able to maintain his visa. The applicant told the Tribunal that he thought “things would go away”. The Tribunal does not accept the applicant is genuinely remorseful for his actions if he has only expressed remorse in response to the possibility of his visa being cancelled.

22. The Tribunal accepts there are strong reasons why the visa should not be cancelled.

23. Against these considerations, the Tribunal places significant weight on the fact that the decision to grant the visa was based on the bogus documents and incorrect answers. The Tribunal has rejected the applicant’s claim that he was entitled to the visa irrespective of the inclusion of the secondary applicant because, having decided to include the secondary applicant, the applicant may not have met the requirements of PIC 4020. The applicant told the Tribunal that if he was to apply for a Partner visa in the future, he may be unable to meet PIC 4020. The same consideration applies in relation to his skilled visa. The applicant concedes that he gave false or misleading information and bogus documents in his skilled visa application and that would have been relevant to the application of PIC 4020 and, potentially, of the applicant’s character.

24. The Tribunal decided to place the greatest weight on the circumstances in which the non-compliance occurred. The applicant’s evidence to the Tribunal is that the agent told him that he would be including Ms Liu as a de facto partner and that bogus documents were being prepared to prove the claimed relationship with Ms Liu. That is, the applicant was fully aware of the fraud and was willingly complicit in it. Despite the applicant’s claim that he did not know what documents were being prepared by the agent, this is not the case where the applicant was unaware of the fraud. Rather, he was informed of it, gave agreement to it and took positive steps (such as taking photos with Ms Liu) to perpetrate the false information. In the Tribunal’s view, the applicant’s intentional involvement in the fraud, coupled with the fact that the decision to grant the visa was based on incorrect information and bogus documents, outweigh other considerations.

25. 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

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

    Kira Raif
    Senior Member