Xing (Migration)

[2021] AATA 5434

Xing (Migration) [2021] AATA 5434 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lulu Xing

CASE NUMBER:  2110028

HOME AFFAIRS REFERENCE(S):          BCC2018/4767309

MEMBER:Kira Raif

DATE:20 December 2021

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 20 December 2021 at 1:33pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa – a member of her family unit – bogus documents – applicant made a false claim of being in a de facto relationship – significant hardship to the applicant – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109, 501
Migration Regulations 1994, 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 189 - Skilled - Independent visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in October 1990. She was granted the Skilled – Independent vias in September 2016. On 11 June 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because 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 the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 20 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from .The applicant was represented in relation to the review by her registered migration agent. 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.

   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 s. 103 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the application made the application for a Skilled – Independent visa on 12 May 2016. In that application, the applicant claimed to be in a de facto relationship with Mr Weifan Liu and included Mr Liu as a de facto partner and a member of her family unit.

11. In support of the claimed de facto relationship, the applicant provided a number of documents, including eleven Commonwealth Bank statements for the period from July 2014 to October 2015 in Mr Liu’s name, showing an address at Homebush West. The applicant and Mr Liu were granted the visas on 9 September 2016.

12. In 2018 the Department conducted an investigation of the evidence and determined that the address shown on the Commonwealth bank account statements did not match the address registered to those documents. The delegate concluded that the bank statements were bogus documents.

13. In her response to the NOICC the applicant notes that she met the primary criteria and the bank records were provided to enable the secondary applicant to meet the secondary criteria. The applicant notes that she would have been granted the visa irrespective of the secondary applicant. The applicant claims that she provided only genuine documents to her migration agent and left the process to her migration agent. She claims she was unaware of the submission of the bogus documents until she received the NOICC.

14. In oral evidence, the applicant told the Tribunal she met Mr Liu at the agent’s office and she liked him and ‘had a crush on him’. The applicant states that when she was talking to the agent about the visa, the agent asked her if she was single and wanted to introduce Mr Li. This was her first relationship and he treated her well, so she liked him.  The applicant states that they met a few times and he gave her comfort and support during a difficult period and supported her mentally. The applicant states that she first met Mr Liu in March 2016 and met him about three times before she made the visa application. They first met in a café and had a long chat. On the other two occasions he came over to her place. The applicant states that Mr Liu promised her that they would get married after they get the visa and she trusted him as he was good to her. She was stressed about finding a job and also about her mother’s health. The applicant states that she never had a relationship before and she really wanted the relationship to continue, she felt that he loved her. After the visa was granted, she was unable to contact him and she realised she was deceived by Mr Liu. She did not see him again.

15. The applicant told the Tribunal that the migration agent was introduced by a friend and she trusted the agent. The applicant states that she was under a lot of pressure due to her mother’s condition and the need to find employment and that is why she entrusted her application to the agent and did not check the forms. The applicant claims she did not pay the application fees or the agent’s fees and did not know when the application was lodged.

16. The Tribunal finds the applicant’s evidence problematic. While the Tribunal may accept that the applicant wanted a relationship with Mr Liu, the Tribunal is of the view that the applicant was well aware that she did not have a de facto relationship with Mr Liu at the time she made her application for the skilled visa, having only met him on three occasions. A desire to have a relationship is not the same as having one and in the Tribunal’s view, the applicant would have been well aware of the difference.

17. The applicant told the Tribunal that she did not know about the bank records and she only gave genuine documents to the agent. The applicant states that the email address used for her visa application was not her address and she did not know when the application was lodged. Whether it was the applicant who prepared the bogus documents or the agent who did so, the Tribunal is of the view that the applicant had the responsibility to check the content of her visa application. The Tribunal is mindful that not only did the application include the bank records, but Mr Liu was also referred to in the application form as a de facto partner. The Act makes it clear that even if another person – such as a migration agent – completed the form on behalf of the applicant, the applicant is taken to have done so. That is, the Act makes it clear that the applicant is responsible for the content of her application, including the completion of the forms and the supporting documentation.

18. Having regard to the information in the primary decision record concerning the address on the Commonwealth bank records, and the applicant’s evidence that she and Mr Liu never lived together, the Tribunal finds that the address on the bank statements had been change. That is, the bank statements had been altered by a person without authority. The Tribunal finds that the bank statements are bogus documents within the meaning of s. 5(b) of the Act. The Tribunal finds that the applicant gave, presented, produced or provided, to an officer or the Minister, bogus documents, or caused such documents to be given, presented, produced or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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

21. This is not relevant in the present case because the NOICC does not refer to the breach of s. 101.

    The content of the genuine document (if any)

22. The genuine bank records would not show the secondary applicant residing at the same address as the primary applicant.

    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

23. The applicant submits that the decision to grant the visa was not based on the bogus documents because she met the visa requirements and the bogus documents were only relevant to the secondary applicant. The Tribunal considers that assessment somewhat simplistic because the applicant would have been required to meet the requirements of PIC 4020 and if the delegate was aware that the applicant provided bogus bank records, the delegate may have concluded that there was evidence that the applicant gave, or caused to be given, bogus documents in relation to her visa application and that would have necessitated the assessment of PIC 4020. Further, the Tribunal is of the view that if it was determined that the applicant made a false claim of being in a de facto relationship and that relationship did not exist, the applicant may have committed an offence under the Act and that may have been relevant to the assessment of the applicant’s character for the purpose of s. 501.

24. The Tribunal accepts that if the applicant did not include the secondary applicant in her visa application, she may have nevertheless been granted the visa. However, having included him in the visa application, the inclusion of the secondary applicant was then relevant to the assessment of certain criteria such as PIC 4020 and s. 501. The applicant submits that the visa may have been granted even if the provision of incorrect information and bogus documents was known but it is not necessary for the Tribunal to determine whether or not the visa would have been granted. It is sufficient that the decision to grant the visa was based, in part, on bogus documents.

    The circumstances in which the non-compliance occurred

25. The applicant claims in her response to NOICC that she had to deal with a number of personal issues at the time and had no chance to make the application herself, so she approached an agent to make the application. The applicant claims she provided genuine documents to the agent and left the matter with the agent as she was dealing with personal matters. She claims to have been unaware of what the agent had submitted as the agent used a different email address. As noted above, the Tribunal is of the view that the applicant had the responsibility of checking the information in her application form as well as the content of the application, including any supporting documents.

26. In oral evidence, the applicant also told the Tribunal that she was dealing with many issues at the time and was under pressure, so she trusted the agent to prepare the application for her. The applicant states that she really wanted a relationship with Mr Liu and thought he loved her. The representative submits that there are different types of de facto relationships and the applicant and Mr Liu did not need to meet every criterion of the definition of ‘de facto relationship’. The Tribunal acknowledges that this is so but in this case, the Tribunal has formed the view the view that the relationship did not exist and it would not have been possible of the applicant to meet that definition, even most beneficially applied. There is no evidence that the applicant and Mr Liu established – or took no steps to establish – a joint household, there was no financial interdependence, no joint social activities and, importantly, there is no evidence that Mr Liu had any commitment to the relationship. The applicant’s evidence is that Mr Liu ceased all contact as soon as the visa was granted, so the Tribunal does not consider that to be indicative of a mutually committed relationship.

27. The applicant appears to concede in her oral evidence to the Tribunal that she did not believe she and Mr Liu were in a de facto relationship, as they had only seen each other three times by that time. Rather, the applicant’s evidence is that she wanted the relationship to exist. Even if the applicant was not aware of the precise details of the application (such as the provision of bogus bank records), she was aware that Mr Liu was included in her application as a de facto partner and, to that extent, she was aware, in the Tribunal’s view, of the fraud.

    The present circumstances of the visa holder

28. The applicant provided a number of documents in response to the NOICC and additional evidence to the Tribunal. The applicant refers to her relationship with an Australian citizen and their plans to marry and start a family. The applicant states that her partner cannot travel to China with her and the cancellation of the visa may cause them to be separated. The applicant told the Tribunal that after her visa was cancelled, the relationship has ended.  

29. The applicant refers to her employment in the financial services industry and she provided evidence of past employment and an offer of a job. The Tribunal accepts that the applicant has been gainfully employed. The applicant refers to the purchase of two investment properties, evidence of which was provided to the delegate. The Tribunal accepts that the applicant owns investment properties in Australia and she provided to the Tribunal evidence relating to property ownership and other financial records. The Tribunal accepts the applicant’s evidence that she has strong financial links to Australia.

30. The applicant states that she has adopted two dogs and describes their circumstances. The applicant states that one of the dogs is too old and would not be adopted again so there would be nobody to care for the dog if she was to leave Australia.

31. The applicant refers to living in Australia since the age of 19 and to the links she has formed in Australia, including social links and there are statements from her friends. The applicant states that she is used to the Australian culture and way of life and has nothing left in China. The Tribunal accepts that the applicant has formed social, employment, financial and other links and is well regarded by others and also that the applicant is well settled in Australia.

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

32. 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

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

    The time that has elapsed since the non-compliance

34. The application was made in May 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

35. There are no known breaches of the law.

    Any contribution made by the holder to the community.

36. The applicant provided evidence of her employment and the Tribunal accepts that she has contributed through employment.

37. 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.

38. The visa issued to Mr Liu would be subject to consequential cancellation. The applicant told the Tribunal that she had no contact with him since the visa grant and is not aware of his circumstances.

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

39. There are no children who would be affected by the cancellation of the visa.

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

40. There is no evidence, and the applicant does not claim, that the cancellation would lead to a breach of Australia’s non-refoulement obligations.

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

41. If the applicant’s visa is cancelled, unless she 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, she 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 she may have acquired as an Australian permanent resident. There are provisions in the Act which prevent the applicants from making certain visa applications without the Minister’s intervention although these restrictions do not apply in relation to all types of visas. If the applicant is not a holder of a permanent visa, she would be unable to sponsor her parents for visas.

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

1. The applicant states that she has not lived in China for over ten years and has no ‘relationships’ there, so there is nobody who could introduce her to a new job or help her find a job. The applicant states that her experience is only with the Australian financial sector and she is not familiar with the Chinese financial sector or its laws, so it would be hard for her to find a job. The applicant states that she would have to travel to a bigger city to find a job in the financial sector and given her age and status as a single woman, it would be hard for her to find a job. The Tribunal is prepared to accept that the length of the applicant’s absence from China and, more importantly, her lack of familiarity with the Chinese financial markets, may adversely affect the applicant’s future employment options in China.

2. The applicant provided a number of character references with her response to the NOICC and multiple more character references to the Tribunal. The Tribunal accepts that those who provided references believe the applicant to be a good person although it is not apparent from these references that all who provided these are aware of the circumstances described above.

3. The applicant told the Tribunal that if her visa is cancelled, and she would lose her job, she would be unable to repay the mortgage and would have to sell her two properties at short notice. This may result in significant financial loss. Overall, the Tribunal accepts  that considerable hardship would be caused to the applicant if her visa is cancelled, if the cancellation is to lead to the applicant having to leave Australia.

4. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s. 103 of the Act. It appears that there  was also non-compliance with s. 101 of the Act (as the applicant gave an incorrect answer by stating she was in a de facto relationship) but the Tribunal is mindful that s. 103 was not referred to in the NOICC.

5. The Tribunal has formed the view that the applicant was complicit in the fraud because she was aware that she did not have a de facto relationship with Mr Liu. However, the Tribunal accepts the applicant’s evidence that she did have some contact with Mr Liu and believed it to be the beginning of a relationship, which she hoped would continue. That is, the applicant had exaggerated the nature of her relationship with Mr Liu, rather than fabricated it. The Tribunal acknowledges that the applicant’s personal circumstances at the time of the application may have affected the applicant’s decisions at the time. The Tribunal is also prepared to accept the applicant’s evidence that  she was unfamiliar with the content of her application and, in particular, with the bank records and, notably, that she did not pay the application fees and migration fees. It is significant, in the Tribunal’s view, that the applicant was not positively complicit in the provision of bogus documents and had some (albeit not a strong) justification for the provision of incorrect information when claiming to be in a de facto relationship.

6. The applicant’s circumstances are addressed above. Essentially, the Tribunal accepts that the applicant is well settled in Australia and has strong employment, social and financial links to this country. The Tribunal accepts that if the cancellation of the visa was to lead to the applicant’s departure from Australia, this would cause significant hardship to the applicant as it is likely to lead to the loss of employment, properties and because of her care arrangements for the two dogs.

7. There is no information before the Tribunal concerning Mr Liu’s circumstances but Mr Liu is not a party to the present application.

8. Overall, the Tribunal has decided to place weight on the circumstances in which the non-compliance occurred (the Tribunal has formed the view that the applicant had limited, involvement in the fraud) and the significant hardship that the cancellation of the visa would cause. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

9. 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