Yu (Migration)

[2022] AATA 615

Yu (Migration) [2022] AATA 615 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lei Yu

CASE NUMBER:  2110212

HOME AFFAIRS REFERENCE(S):          BCC2019/3330274

MEMBER:Kira Raif

DATE:5 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 05 January 2022 at 3:51pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa – bogus documents – applicant made a false claim of being in a de facto relationship – had given incorrect answers in the application – financial gain – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109, 501
Migration Regulations 1994

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 November 1990. He was granted the Skilled visa in March 2017. In July 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 ss. 101 and 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 5 January 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 by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

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.

   Did the Notice comply with the requirements in s.107?

6. 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.

7. 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?

8. 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.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made an application for a Skilled visa on 21 September 2016. In that application the applicant stated that he was in a de facto relationship with Ms Xiao Ying Liu from August 2015. The applicant completed a declaration that the information on the form and in any attachment was complete and correct in every detail.

10. As evidence of his relationship with Ms Liu, the applicant provided a number of documents evidencing their cohabitation, including several Vodaphone bills addressed to the applicant at a Kingsford address, from July 2015 to September 2016 and Vodaphone bills sent to Ms Liu at the same address from July 2015 to August 2016 and at another address for a later period.

11. The applicants were granted the Skilled visas on 23 March 2017. Following the visa grant, the Department carried out a forensic examination of the above documents and determined that the residential addresses on the Vodaphone bills did not match the addresses officially linked and registered to these documents. The delegate concluded that these were bogus documents.

12. The primary decision record indicates that the applicant sponsored Ms Dai for a Partner visa in March 2018. In the sponsorship form the applicant stated that

    -his relationship with Ms Dai commenced in February 2017,

    -he had never been in a de facto relationship previously,

    -he had been living at an address at Rhodes from March 2014 to the time of application in March 2018.

13. In his response to the NOICC the applicant explains that he appointed a migration agent to prepare his Skilled visa application. In his statement provided to the Tribunal on 4 January 2022 the applicant states that he decided to make an application for the Australian visa and was introduced to a migration agent by a classmate and so he trusted the agent. The applicant states that the agent prepared the application but did not ask him to check anything and later on he was told that the vias was granted. The applicant states that the agent used a different email address and he did not know that the agent had fabricated most of the documents. The applicant states that when he sponsored his present partner, they received correspondence from the Department that there was inconsistent information and that is when ‘his memory suddenly kicked in’ that the agent may have included a de facto partner in his application. He had a big fight with Ms Dai and she had withdrawn her Partner application. The applicant states that he made a mistake by following the agent’s advice.

14. In oral evidence, the applicant also told the Tribunal that he had an agent who helped him with the application. The applicant states that he only provided basic documents to the agent, like his Skills assessment and English test results. The agent undertook to prepare everything for him and told him he would not have to pay for the application. The applicant explained that the agent told him they would include a partner in the application in return for paying the applicant’s English test fees and the skills assessment fees. The applicant states that he agreed to include that person as a de facto partner because he had no financial support from his parents and had little money and wanted to do the application by himself. The applicant agreed that he was never in a de facto relationship with Mr Liu.

15. The Tribunal finds, having regard to the information the applicant gave in his sponsorship of Ms Dai that he lived at an address different to the address declared in the Skilled visa. Having regard to his oral evidence, the Tribunal finds that the applicant never had a de facto relationship Ms Liu. The Tribunal finds that the applicant gave incorrect answers on the application form when he claimed to be in a de facto relationship with Ms Liu and when stating his residential address. 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.

16. The Tribunal further finds, having regard to the Department’s investigation as described in the primary decision record, that  the Vodaphone records are bogus documents because they were altered by a person without authority (within the meaning of s. 5(b) of the Act). The Tribunal finds that the applicant presented or provided to an officer or the Minister bogus documents or caused such documents to be so given, presented or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

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

    Should the visa be cancelled?

18. 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).

19. 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

20. The correct information is that the applicant did not have a de facto relationship with Ms Liu. The correct information is that he and Ms Liu did not reside together at the same address.

    The content of the genuine document (if any)

21. The genuine documents would not show the applicant and Ms Liu residing at the same address.

    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

22. The applicant claims in his response to the NOICC and evidence to the Tribunal that he had not claimed points for his partner and would have acquired sufficient points irrespective of his partner. The Tribunal considers that submission misguided because the Skilled visa requirements involved more than the points score. There were other criteria which the applicant was required to meet and to which the provision of incorrect answers and bogus documents was relevant. The applicant did submit bogus documents and answered the questions on the form in a way that incorrect answers were given. When doing so, PIC 4020 would have been engaged and it would have been open to the decision-maker to find that the applicant gave bogus documents and information that was false or misleading in a material particular.

23. It may be true that if the applicant did not include the secondary applicant in his application, he would have been granted the visa because he was able to achieve the pass mark but once the applicant did make the decision to include Ms Liu in his application and to make claims about the relationship, requirements such as PIC 4020 became more relevant. The false claims may have also been relevant to the assessment of the applicant’s overall character for the purpose of s. 501, noting that it is an offence to claim to be in a relationship that does not exist.

24. It is not for this Tribunal to determine whether the applicant would have been granted the visa if the correct information was known. However, the Tribunal is of the view that once the secondary applicant was included, the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

25. In his response to the NOICC and written submission to the Tribunal the applicant states that he appointed a migration agent and entrusted the agent with his application. The applicant told the Tribunal that he trusted the agent and was not familiar with the laws and did not get a chance to check the application forms.

26. The Tribunal rejects the applicant’s claims. The applicant’s evidence to the Tribunal is that he was aware that Ms Liu was included in the application as his de facto partner and he knew that she was not his de facto partner and that there was no relationship between them. Thus, the applicant was aware of the fraud and gave the ‘go-ahead’ to the agent to proceed with the false claims in order to gain the financial benefit. (The applicant’s representative notes that  the amount was insignificant but in the Tribunal’s view, the extent of the financial gain is irrelevant.) Thus, even if the applicant did not understand the precise details of what ‘de facto’ meant or precisely what documents were submitted on his behalf (he claims he did not have a chance to read the form), the applicant was well aware that Ms Liu was included as his partner, that she was not his partner and therefore that the application contained a falsehood.

27. The Tribunal finds that the applicant had willingly and deliberately engaged in the fraud. He did so to gain the financial benefit.

    The present circumstances of the visa holder

28. In his response to the NOICC the applicant refers to the completion of his studies in Australia and his employment as a plumber. The applicant refers to the contribution he has made to his employer as a result of his knowledge and skills. The applicant refers to the skills shortage and states that if his visa is cancelled, this would delay the employer’s projects and cause financial loss to his employer, which may affect his Australian co-workers. The applicant submits that it is in the interests of the Australian community not to cancel his visa. The Tribunal finds these submissions unpersuasive, largely because the applicant has not satisfied the Tribunal that his involvement in the company is of such nature that the cancellation of the visa (which is not equivalent to the requirement for the applicant to leave Australia) would affect the company’s projects. In the Tribunal’s view, any employer would have in place arrangements for staff turnover, noting that the applicant like any other employee is under no obligation to remain with the same employer. Thus, even if the applicant is unable to continue his employment for his employer as a result of his visa being cancelled, the Tribunal is not satisfied on the evidence before it that it would have detrimental effect on the employer’s business and financial affairs and affect other employees.

29. The applicant submits that it is not in the interests of the community if his visa is cancelled. In the Tribunal’s view, the interests of the community cannot only be measured by the applicant’s contribution to his employer, even if it is an important consideration. The interests of the community may also involve consideration of the integrity of the Australian laws and the community’s expectations that migration rules would be complied with and that persons seeking Australian visas are truthful in their interactions with the Australian authorities.

30. The applicant also states that he runs a small business. The Tribunal accepts that evidence.

31. The applicant refers to the length of his stay in Australia and states that he is settled in this country and has established social and financial links and is a member of the local community. The Tribunal accepts that evidence.

32. The applicant refers to his relationship with his de facto partner Ms Dai, who is a permanent resident and their desire to have children. They have adopted a pet. The applicant refers to the support they provide to each other and states that any physical separation between him and his partner would lead to the emotional distress, particularly during the pandemic. The Tribunal does not accept that evidence because if the applicant is in a genuine de facto relationship with an Australian resident, as he claims, he may be eligible to seek a Partner visa and he ultimately told the Tribunal that he is likely to make that application onshore. That is, the cancellation of the Skilled visa need not result in the applicant having to leave Australia, at least not immediately (in case he is not successful). The Tribunal acknowledges that there can be no certainty of visa grant and in any event, any new visa application will result in considerable delay and additional costs to the applicant and the delay in him being able to sponsor his parents. However, the Tribunal is also of the view that there is benefit in the applicant being assessed against visa criteria on the basis of full and truthful information.

33. The applicant states that if his visa is cancelled, this would affect their plans to have a child and would affect heir finances, due to their monthly home loan obligation. (The applicant presented in response to the NOICC and to the Tribunal evidence of the home loan.) In his submission to the Tribunal of 4 January 2022 the applicant also refers to his past study and employment in Australia. He refers to his business and work as a plumber. The applicant refers to the purchase of a home and an investment property and his financial situation. The applicant’s evidence to the Tribunal is that both he and his partner have substantial incomes and financial support from parents, as well as savings. In the circumstances, and in the absence of more detailed documentary evidence about the applicant’s finances and expenditure, the Tribunal is not satisfied that the cancellation of the visa would cause financial hardship to the applicant or others.

34. The applicant told the Tribunal that his partner has a hearing problem (he presented medical reports after the hearing) and needs him to look after her. The applicant states that if his visa is cancelled, he cannot look after his partner. The applicant described in oral evidence the nature of support he provides. The Tribunal is prepared to accept that evidence and that if the cancellation of the visa would result in the applicant departing Australia (which need not be the case), the applicant’s support may be withdrawn. The Tribunal is prepared to accept this may cause some hardship to the applicant’s partner.

35. The applicant refers to his relationship with Ms Dai, which he claims has been in existence for four years (his evidence to the Tribunal is that  there was a break in the relationship), and their adoption of a dog. He refers to their plan to get married, which has been delayed by the pandemic. The applicant refers to having an aunt and cousins in Sydney. The Tribunal accepts that the applicant is well settled in Australia and has strong social, familial, business and employment ties.

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

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

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

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

    The time that has elapsed since the non-compliance

38. The application was made in September 2016 and approximately five and a half years passed since the non-compliance. The Tribunal acknowledges it is not an insignificant period.

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

39. There are no known breaches of the law. The applicant told the Tribunal that he did not understand the law before and was ‘too trusty’ but he is more mature now. The Tribunal acknowledges that there are no other known breaches of the law.

    Any contribution made by the holder to the community.

40. The applicant states that his occupation is an occupation in demand and he contributes to the community through employment. The applicant states that he an introvert and has not participated in community activities but intends to do that in the future to make up for his past mistakes. Given the applicant’s stated unwillingness to do so in the past, the Tribunal does not consider the applicant genuinely intends to engage in community activities in the future.

1. 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.

2. The visa held by Ms Liu would be subject to consequential cancellation. Ms Liu is not a party to these proceedings and the Tribunal has no information about her 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.

3. There are no children whose interests would be affected by the cancellation.

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

4. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. The applicant has a partner in Australia and parents overseas. As noted elsewhere, the applicant has the option of seeking other Australian visas in the future, including making the application onshore. In such circumstances, the Tribunal does not consider that the family unity obligations would be breached by the cancellation.

   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.

5. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements he may have acquired as an Australian permanent resident. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore. If the applicant does not hold a permanent visa, he cannot act as a sponsor for his parents.

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

6. The applicant provided in his response to the NOICC several character references, including a reference from his employer. The Tribunal accepts that  those who provided references believe the applicant to be a person of good character.

7. In his submission to the Tribunal of 4 January 2022 the applicant states that he has been living in Australia since he was 24, has a partner and a stable job here. The applicant states that he used to return to China each year but has not done that for the past two years. The applicant refers to the presence of his partner in Australia, as well as his business and ongoing TAFE study and other ties. He states that if he returns to China, what he learned in Australia would not be of help to him. The applicant notes that he has never worked in China and given his age, it would be difficult for him to get a job. The applicant refers to having bought a car and an apartment and his own business with steady income, and a home loan, none of which would be available to him in China. The applicant refers to the presence of his aunt in Australia and states that he does not wish to disappoint her. The applicant refers to the presence of his friends in Australia.

8. As noted above, the Tribunal largely accepts the applicant’s evidence and accepts that the applicant has extensive ties and commitments in Australia. The Tribunal also accepts that considerable hardship would be caused to the applicant by the cancellation of the visa if it is to result in the applicant being required to leave Australia. As noted elsewhere, the applicant has an option of seeking another Australian visa and while the outcome of that application cannot be predicted, the Tribunal places some weight on the fact that there appears to be little likelihood of the applicant departing Australia, at least immediately. The Tribunal is of the view that these factors would alleviate some of the hardship to which the applicant and his partner refer but the Tribunal accepts that even if the applicant is able to seek another Australian visa, that process will cause some hardship because the applicant’s ability to engage in study and employment and sponsor his parents would be affected and generally, the Tribunal accepts that  another visa application would necessarily delay many of the applicant’s plans. The Tribunal also acknowledges the applicant’s evidence that he prefers to obtain the visa independently and not in reliance on his partner.

9. The applicant’s partner provided a statement to the Tribunal on 4 January 2022 in which she refers to her settlement in Australia and the hardship she would experience if she was required to return to China. The Tribunal notes that  as a permanent resident of Australia, there is no requirement for her leave Australia irrespective of the outcome of this review. The Tribunal accepts that hardship may be caused to Ms Dai by the cancellation of the applicant’s visa if it were to result in the applicant having to depart Australia but the Tribunal considers that the cancellation does not equate to removal from Australia.

10. The applicant states that the cancellation of the visa would affect their desire to get married and have a family. The Tribunal acknowledges that there may be a delay in the couple having children if the applicant was to leave Australia

11. The applicant expressed remorse for his actions and states that he is ‘not a bad person’. The Tribunal acknowledges the expression of remorse, although it is mindful that the applicant had declared his remorse only in response to the possible cancellation of his visa. He confirmed in his evidence to the Tribunal that he has taken no steps to inform the Department of the incorrect information.

12. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given or provided and that there was non-compliance with s. 101 of the Act. The Tribunal has also found that the applicant submitted bogus documents and that there was non-compliance with s. 103. The Tribunal has found that there are grounds for cancelling the visa.

13. The Tribunal acknowledges that the applicant has been living in Australia for several years, has completed his study in this country and has significant business, family, social and other links in Australia. The Tribunal acknowledges that the applicant had been employed in an occupation ‘in demand’. The Tribunal accepts that significant hardship would be caused to the applicant and others (such as his partner) if the cancellation was to lead to the applicant having to depart Australia but given the applicant’s option to seek a Partner visa either onshore or offshore, and his indication that he is likely to make such an application onshore if his Skilled visa remains cancelled, the Tribunal is of the view that much of the hardship would be alleviated by the applicant’s ability to remain in Australia, at least in the immediate future.

14. The Tribunal acknowledges the difficulties associated with a new application, including the costs and delay, possible application of PIC 4020 and other issues (such as inability to study, more limited employment options, and other plans being delayed) and accepts that the applicant and his family will experience hardship by the cancellation irrespective of what other options the applicant may have and whether or not he applies for the Partner visa. That is, the Tribunal accepts that  the cancellation of the visa would result in hardship to the applicant and others.

15. The Tribunal has determined that the cancellation would not be in breach of Australia’s international obligations and there are no children who would be affected by the cancellation. The Tribunal acknowledges that there are factors against the cancellation.

16. The applicant repeatedly told the Tribunal that he was not involved in the fraud and did not have a chance to read the application form and did not know what information or documents were submitted. In the Tribunal’s view, such claims seek to minimise the level of the applicant’s involvement in the fraud. This is not the case where the applicant was unaware of what was submitted on his behalf or where the breach occurred due to an innocent mistake or misunderstanding or purely fraud by the agent. Even though the applicant claims he was unable to check the content of his application, the applicant concedes that he was aware that Ms Liu was included as his de facto partner in the application and he was aware that such relationship did not exist. That is, the applicant was well aware of the fraud and agreed for it to take place in return for a financial gain. It is irrelevant, in the Tribunal’s view, that the applicant may not have seen the precise answers on the form or the actual relationship documents submitted with the application. He was overall cognisant of, and complicit in, the fraud. He had authorised it.

17. The applicant claims that he has been truthful in his evidence to the Tribunal and in his previous Partner visa sponsorship and he has already been heavily penalised by the refusal of his partner’s visa and the cancellation of his own visa. The Tribunal does not consider that truthfulness in some applications (which is an obligation upon all visa applicants) can balance out lack of truthfulness in other applications. The Tribunal is also of the view that the matters to be considered here and any consequence of the cancellation, are not in the nature of a penalty.

18. The Tribunal has considered all the circumstances of this case singularly and cumulatively. While the Tribunal acknowledges that there are factors that are against the cancellation, the Tribunal has formed the view that in the circumstances of this case, factors such as the circumstances in which the non-compliance occurred (wilful and deliberate misrepresentation) and the fact that the decision to grant the visa was based, even if in part, on incorrect information and bogus documents, outweigh other considerations.

19. 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 be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif
    Senior Member