ZHAN (Migration)

ZHAN (Migration) [2020] AATA 4495 (8 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr SHIZHONG ZHAN
Mrs LINQIONG LIU
Mr WENCHAO ZHAN
CASE NUMBER:  1925164
DIBP REFERENCE(S):  BCC2017/4046557
MEMBER:Michael Cooke
DATE:8 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 08 September 2020 at 3:57pm
CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – incorrect information in visa application – past employment details – bogus document – employer reference – alleged malfeasance by agent – consideration of discretion – information material to assessment of visa application – best interest of children – integrity of the Business visa program – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
DXQ v MICMSMA [2020] FCA 1184
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant presented ‘incorrect information’ and a ‘bogus’ document as part of his application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the primary applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The primary applicant has informed the Tribunal that his daughter (Yuting ZHAN) has subsequently withdrawn her application from the review. The Tribunal is informed that she has been granted a Subclass 500 Student visa.
The applicants were sent an Invitation pursuant to s.359A of the Act as follows:
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MR SHIZHONG ZHAN, MRS LINQIONG LIU, MISS YUTING ZHAN AND MR WENCHAO ZHAN
I am writing in relation to the applications for review made by you in respect of decisions to cancel Subclass 457 (Temporary Work (Skilled)) visas.
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
·You provided an employment reference to the Department in regard to your Subclass 457 visa application in which you stated that you worked for Xinhuayan Construction Engineering Company Ltd from 2008-2015. Information available to the Department indicates you never worked for this company and the reference is a bogus document.
·In your visa application, you declared ‘yes’ to the declaration “I declare that: the information in this form is complete, correct and up-to-date”. The information you gave on page 16 of your visa application was not correct.
The relevance of this information is that you are required (pursuant to s.101) to give correct information when making a visa application. You did not do so.
This above information is further relevant because you are required (pursuant to s.103) not ‘to give, present, produce or provide’ a bogus document or ‘cause such a document to be so given, presented, produced or provided’ to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under the Migration Act. You did so provide a bogus document as part of your visa application.
The above evidence is further relevant because if you do not give correct information you will be in breach of s.101 of the Migration Act. If you give up a bogus document, you will be in breach of s.103 of the Migration Act.
Relevantly, if the Tribunal finds you have breached the Migration Act, it may decide to affirm the decision to cancel your Subclass 457 visa.
You are invited to give comments on or respond to the above information in writing.
The applicants did not respond to the Invitation by the appropriate day (14 April 2020).
The Tribunal became aware of a procedural issue with the Invitation after it had been sent out. As the information in the Tribunal’s s 359A letter was contained in the delegate’s decision, a copy of which the applicant provided to the Tribunal, it fell within the exception in s 359A(4)(b). In view of this discovery, the Tribunal issued a hearing invitation.
The hearing was scheduled to be held on 18 May 2020. The Tribunal was assisted by a Mandarin Chinese speaking interpreter.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. They applicant did not advise any concerns in relation to holding a telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. In view of the telephone hearing, particular consideration was given to the fact that the applicant was a non-English language speaker and was not assisted by a migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Hearing
The Tribunal asked the applicant if he knew what was happening to him in the hearing. He said his lawyer told him about the Subclass 457 visa issue. He told him that documents he lodged had some problems and his application was discontinued. The Tribunal corrected the applicant that, in fact, it was claimed that he had submitted bogus documents and as a result his visa had been cancelled. He had then appealed to the Tribunal to set aside the cancellation. He said he understood the Tribunal explanation. The Tribunal said it was a serious matter and the cancellation was issued under s.109 of the Act. He had been notified in 2019 by the Department. The Tribunal informed him that he did not respond to the Department and the Tribunal asked him why. The applicant said at that time he was running out of time. He made enquiries and asked his lawyer to do everything because he did not speak English. The Tribunal asked why the lawyer had then done nothing to help him. The applicant said his lawyer had told him he had, in fact, replied to the Department. The Tribunal asked him the person’s name. He said his name was Mr Shan.
The Tribunal then explained the visa situation to the applicant and the delegate’s claim that he had submitted bogus documents as part of the application. The Tribunal the referred to information in the delegate’s decision where the visa applicant had answered various questions on page 14 regarding his past employment. The Tribunal then read out the details of his employment at Xinhuayuan company as found in the decision record on the Tribunal file. It detailed the company he claimed to work for (the Xinhuayuan company) and the tasks and jobs he performed on various projects in various years. In the document provided by the applicant to assist the Department, a timeline was constructed showing the job addresses and days and locations in the province from 2008 to 2014 where the applicant worked as part of his employment history. The Tribunal informed him this information was submitted electronically. He agreed with the Tribunal’s observation. On page 16 it pointed out the information was not only shown but was actually declared as being all true and correct. Consequently, the Tribunal informed him, if he submitted false documents, he could have his visa cancelled. The Tribunal told him this information was elaborated in the advisory paragraph on the Department document. The Tribunal informed him that he had answered yes to the declarations. It appeared from the delegate’s evidence that he wrote on all the applications dated 25 August 2015 and included the reference from Xinhuayuan company.
The Tribunal observed that the Department believed (at the time) that all the information was correct, so it issued him with a Subclass 457 visa. A while after his arrival in Australia, in September 2017, the Department undertook some integrity checks with the company that (ostensibly) had issued the work document (see delegate’s decision record on the Tribunal file). The Departmental integrity check discovered that the reference he submitted from the Xinhuayuan company was bogus and the information found on page 14 was also incorrect. The Tribunal asked if he understood all of the explanation. He answered yes to the Tribunal.
The Tribunal then examined this Departmental information in the light of his declarations on page 16 of the visa application and how this impacted the applicant. His visa was cancelled because he did not respond to the Department when they informed him his visa had been cancelled. He then appealed to the Tribunal. That was why he was talking to the Tribunal now. The Tribunal asked him if he agreed with the Departmental claim that he gave incorrect information and bogus documents to the Department.
He replied that at that time when he furnished them all the documents were genuine. He gave all the documents to an agent. If the agent changed something, he did not know about it. He confirmed that he did not lodge bogus documents. The Tribunal asked him how the claimed bogus document was submitted. He said that previously he did not know about it. This was the first time he had heard about it. He gave the documents to an agent and maybe something happened after that when they were lodged.
The Tribunal asked him if he sighted the documents that were issued in his name. He answered that the documents he lodged he did see. He did not know if they were altered. He said he did see the originals which were lodged. He was asked whether he had read them in Chinese. The documents he lodged were in Chinese and he saw them. He submitted his work reference. He did work for the company - which was a famous name in his town. He was asked whether he went to the company to get the reference documents. He said he worked for them and got the reference documents from them. He was asked did he read the reference. He said he did read it and gave it to the agent. He was asked what he had said to the agent about his application. Did he give him the work reference? He said he gave it to his agent. He was asked what he did with the work reference. He said his agent took it away and he did not know what happened afterwards. He was asked if he gave the work reference to his agent. Yes, he responded - he thought so.
The Tribunal said that after investigation by the Department the document he gave the agent was found to be bogus. He was asked if he told the agent this. No, he said, the document was genuine. The Tribunal informed him that the integrity check revealed that he had not been employed by that company. The applicant responded that maybe there was some issue with the times he worked. However, he promised the Tribunal he had worked for the firm - Fujian Xinhuayuan Construction Engineering Co. Ltd. - (Xinhuayuan).
The Tribunal alerted him that the Tribunal had the power to set aside the cancellation decision following a brand-new review. During the review further information was sought from him and he was asked his opinion. Other matters to do with his case were re-examined by the Tribunal. The delegate’s decision to cancel his visa could be set aside by the Tribunal. However, such a decision depended on whether or not he had actually submitted ‘bogus’ documents and ‘incorrect information’. In response, the applicant denied that he had given incorrect information and bogus documents.
The Tribunal invited the applicant to advance reasons why the decision should be overturned. The Tribunal did this because it noted that he had given no information previously to the Tribunal or Department when asked. For instance, there were no submissions from a migration agent or otherwise to assist the Tribunal with the issues in his case.
The Tribunal then asked him some further information about his personal situation.
He informed he had two children. He had a 22-year-old daughter and his son who was 14. His daughter was studying nursing and his son was at high school. His daughter had applied to study a Bachelor of Nursing.
The Tribunal asked him how many Australian dollars he was making when he said he was working for the Xinhuayuan company. He asked the Tribunal to clarify whether the Tribunal meant earnings per month or week. He explained he did not receive stable wages. If he worked, he got paid. So, he did not get a fixed monthly wage - he informed. He earnt approximately RMB8000 per month. The Tribunal suggested he, therefore, was making around RMB 108 -110, 000 per annum in total. He said no - he needed to explain. He was in the country, so he never calculated it yearly he just spent it all. He then demurred and agreed he did earn around that annual figure.
He was asked whether he had breached the law since being in Australia. He said he had not.
He was asked whether he had been involved in community work. He advised that he had never had a stable address due to the children’s’ study.
The Tribunal asked him what would happen to him if the Tribunal affirmed the cancellation and what would happen to his family. He said he came to earn money and to allow his children to finish their education. He was asked how else it would affect him personally from the point of view of hardship. He replied that this was the first time he had heard of his visa problem. He hoped his children could finish their study. Personally, he hoped he could have a job so the children could finish their study.
He was asked whether he had a personal plea or statement to make. He asked was it possible to have his visa back. The Tribunal asked him why he asked that. He said it would help him find a better job and help his children. He said he wanted to stay - finally. He said he had been here 3-4 years. He hoped to have a chance to stay here.
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.
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. Extracts of the Act relevant to this case are attached to this decision.
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?
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 in the following respects:
The information in the delegate’s decision (on the Tribunal file) discloses that on 20 November 2015 the primary applicant submitted an application for a Temporary Work (Skilled)(subclass 457) visa to the Department.
On the electronic application form for this visa, he provided the following information:
·On page 14 in response to the question “Give past employment details” the visa holder provided the following information:
Employer Xinhuayuan Construction Engineering Co., Ltd.
Position: Constructional Skilled Worker
Date from 1 November 2008
Date to 19 November 2015
Duties of position: In charge and supervise of bricklaying, mosaic decorating, masonry, tiling, painting and other construction related work for the projects. Brief introduction of projects:
1. November 2008 - September 2009, Work in construction projects at the project site of Green Hills Site in Sha County, Fujian Province.
2. October 2009 - April 2010, Work in construction projects at the project site of Commercial Residential Building of Luobu Homeorld in Sha County, Fujian Province.
3. May 2010 - February 2014, Work in construction project at the projects site of Commercial and Residential Building of Longhu Xincheng in ShanglinCounty, Guangxi.
4. March 2014 - Current, Work in construction project at the project site of #Shuxiangmendi# Residential Building in Zhoukou City, Henan Province.
On page 16, to the declarations “I declare that: The information provided in this form is complete, correct and up-to-date.”
and
“I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled,” the primary applicant answered “Yes.”
The delegate’s decision (on the Tribunal file) further discloses that in support of his Temporary Work (Skilled) (Subclass 457) visa application, the primary applicant also provided an employment reference issued from Fujian Xinhuayuan Construction Engineering Co. Ltd. This document claimied that he was employed with their corporation (as a ‘constructional skilled worker’) from November 2008 until the issuance of the letter on 25 August 2015. The Departmental concluded from this information and further information that he met all of the other relevant criteria. Thus, the primary applicant was granted a Temporary Work (Skilled) (Subclass 457) visa on 24 February 2016.
Subsequently, on 26 September 2107 (following the grant of the visa) the Department undertook integrity checks regarding the employment reference which the primary had provided in support of his Temporary Work (Skilled) (Subclass 457) visa application. The document in question was a work reference purportedly issued by Fujian Xinhuayuan Construction Engineering Co. Ltd. The Departmental integrity check indicated that the primary applicant’s employment reference was non-genuine and, therefore, was a ‘bogus document’ pursuant to s.5 of the Act. The delegate concluded he had provided (effectively) ‘a bogus document’ in order to facilitate the grant of his Temporary Work (Skilled) (Subclass 457) visa. The Departmental information collated from the integrity check indicated that the primary applicant had also provided the Department with ‘incorrect information’ regarding his employment history.
The Tribunal notes that the particulars of the possible non-compliance with section 101(b) of the Migration Act, elaborated in the decision record, are as follows:
The primary applicant’s response on page 14 of the electronic visa application form asked “Give past employment details”
To this effect he provided the following information as part of the application:
Employer: Xinhuayuan Construction Engineering Co., Ltd.
Position: Constructional Skilled Worker
Date: from 1 November 2008
Date: to 19 November 2015
Duties of position: In charge and supervise of bricklaying, mosaic decorating, masonry, tiling, painting and other construction related work for the projects. Brief introduction of projects:
1. November 2008 - September 2009, Work in construction projects at the project site of Green Hills Site in Sha County, Fujian Province.
2. October 2009 - April 2010, Work in construction projects at the project site of Commercial Residential Building of Luobu Homeworld in Sha County, Fujian Province.
3. May 2010 - February 2014, Work in construction project at the projects site of Commercial and Residential Building of Longhu Xincheng in Shanglin County, Guangxi.
4. March 2014 - Current, Work in construction project at the project site of #Shuxiangmendi# Residential Building in Zhoukou City, Henan Province.
The delegate considered this to be incorrect as it appears that the employment reference issued from Fujian Xinhuayuan Construction Engineering Co. Ltd, dated 25 August 2015 which he provided with his application has been identified as a non-genuine bogus document. Therefore, it appears he was not employed by Xinhuayuan Construction Engineering Co. Ltd, as claimed.

In regard to the primary applicant’s answer of “Yes” to the declaration on page 16 it states:
“I declare that: The information provided in this form is complete, correct and up-to-date.”
The delegate’s decision record notes that he considered this to be an incorrect statement. This was because the Department had received information that the employment reference for Xinhuayuan Construction Engineering Co. Ltd (provided with his application) had been identified as non-genuine. Therefore, the delegate concluded that the primary applicant had provided ‘incorrect information’ in his application regarding his employment history.
Possible non-compliance with section 103 of the Migration Act:
The delegate further considered whether the primary applicant had complied with Section 103 of the Migration Act. The information before him suggested that he had presented ‘a bogus document’ to the Department in order to facilitate the grant of his visa. The delegate concluded (from investigation of it) that the employment reference document fell within the definition of ‘a bogus document’ as defined in subsection 5(1) of the Act:
·Employment reference from Fujian Xinhuayuan Construction Engineering Co. Ltd
The delegate considered this document to be ‘bogus’ because the Department had conducted an integrity check on the primary applicant’s s employment reference from Fujian Xinhuayuan Construction Engineering Co. Ltd. The integrity check identified it as being non-genuine. The investigation concluded that the document was counterfeit or (in the alternative) it had been altered by a person who did not have the authority to do so.
The delegate considered that the information the primary applicant provided regarding his employment history (and in support of his visa application) was material to the grant of his Temporary Work (Skilled) (Subclass 457) visa. The delegate concluded that if the Department had been aware that the primary applicant had not completed the employment experience schedule outlined in the document, he would not have met the necessary criteria. In the alternative he had provided a bogus document. Therefore, if this were the case, his Temporary Work (Skilled) (Subclass 457) visa would not have been granted.
The information gathered from the integrity check appears on the Tribunal file via the delegate’s decision record. The Tribunal also put the information (in the Department decision) to the primary applicant prior to and during the hearing. The applicant (in rebuttal in the hearing) insisted that all the information he submitted was factual. He could only suggest that the reason that the information was now claimed to be ‘bogus’ was that the agent (who he had used for the application) had altered or tampered with it - unbeknownst to him. He gave no reason why he suggested this or what would motivate the agent to do such a thing.
The Tribunal has general concerns that the applicant claimed he was unaware of the circumstances surrounding his visa cancellation when questioned in the hearing. He suggested that the Tribunal hearing was the first time he had heard of his cancellation. This statement must be juxtaposed, however, with the fact an application for review of the cancellation was submitted to the Tribunal - including the delegate’s decision. He has also had correspondence with the Tribunal regarding the withdrawal of his daughter from the Tribunal review application. He advised in the hearing that he had been assisted by a ‘lawyer’ at some stage. However, there has been no response by him to the Department or Tribunal when asked to comment on adverse matters.
The Tribunal has weighed these observations against the applicant’s claims (in rebuttal) that he was not involved in any attempt to bamboozle the Department with ‘bogus’ documents and ‘incorrect information’. He claims that any ‘bogus’ documents or ‘incorrect information’ was the product of some possible/perceived misbehaviour by his agent in China. He claimed in the hearing to have picked up the document himself from the company which he claimed was genuine and that he had worked there. He gave it to his agent having read it in Chinese and obviously being satisfied with the veracity of the contents. However, the Tribunal finds that none of this can be true. The firm (which supposedly issued the document) has indicated itself to the Department that it is ‘bogus’. This indicates his claims (that it was genuine and sourced from them and that he read it to himself before handing it over to his agent) cannot be true. The Tribunal gives this integrity evidence great weight based on its provenance. Therefore, the Tribunal rejects the applicant’s implausible claim that it was his agent who decided to submit a ‘bogus’ document and ‘incorrect information’ to the Department as part of the visa application process. The Tribunal is satisfied that rather than his agent being ‘on a frolic of his own’ the applicant and his agent both facilitated the submission of a ‘bogus’ document (the fictitious work reference) through the agent and subsequently gave ‘incorrect information’ to the Department as part of the (later successful) visa application.
The Tribunal gives great weight to the Departmental integrity check information because of its thoroughness and provenance. The Tribunal is, therefore, satisfied that the information collated from the integrity checks is sufficient to establish that there was non-compliance with ss.101 and 103 of the Act by the primary applicant in the way described in the s.107 notice.
In regard to s.101, the ‘correct’ information was that the applicant never worked at the quoted company. Regarding s.103 the submitted work reference was a ‘bogus’ document pursuant to s.5 of the Act. This is because the Tribunal reasonably suspects that it is a document that (a) purports to have been, but was not, issued in respect of the person.
Should the visa be cancelled?
The Tribunal has decided that there was non-compliance in the way described in the Notice given to the primary applicant under s.107 of the Act. It is now 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).
In exercising this power, the Tribunal must consider the primary 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. Briefly, they are:
· the correct information
The correct information is that the primary applicant was never employed by Fujian Xinhuayuan Construction Engineering Co. Ltd. Therefore, he provided incorrect information regarding his employment history in his Temporary Work (Skilled) (subclass 457) visa application. The Tribunal considers that the information regarding his employment history was material to the assessment undertaken for the grant of the visa. The Tribunal does not agree with the applicant that the information is incorrect because of the possible malfeasance of his agent.
· the content of the genuine document (if any)
The outcome of an integrity check conducted by the Department confirmed that the primary applicant’s employment reference from Fujian Xinhuayuan Construction Engineering co., dated 25 August 2015 was a bogus document.
The document, moreover, meets the definition of a ‘bogus’ document because the integrity check has established that the primary applicant never worked for the claimed employer. The document purports to have been issued in respect of the primary applicant but has been established as being bogus.
· 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
The Tribunal is satisfied that the primary applicant provided ‘incorrect information’ regarding his employment history in his Temporary Work (Skilled) (subclass 457) visa application. The Tribunal is also satisfied that the primary applicant’s employment history formed part of the overall assessment of his suitability for the grant of the visa. Additionally, a ‘bogus document’ was submitted with the application to support the ‘incorrect information regarding the primary applicant’s claimed employment history.
The Tribunal finds that the decision to grant the primary applicant’s Temporary Work (Skilled) (subclass 457) visa was based on ‘incorrect information’ and a ‘bogus document’.
· the circumstances in which the non-compliance occurred
The Tribunal observes that the non-compliance occurred when ‘incorrect information’ and a ‘bogus document’ were provided in and as part of the primary applicant’s Temporary Work (Skilled) (Subclass 457) visa application, He did not respond to the Notice of Intention to Cancel sent by the delegate and has not provided any written information to the Tribunal regarding the circumstances in which the non-compliance occurred. He has argued (in oral evidence) that his agent in China, who prepared his documentation for submission, was responsible for any purported malfeasance in the submission of his documentation. The Tribunal is not persuaded (on the written and oral evidence available to it) that this claimed scenario is plausible.
· the present circumstances of the applicants
The Tribunal notes that the applicants did not respond to the Departmental Notice. During the hearing the Tribunal has been made aware of the applicants’ present circumstances.
According to Departmental resources, the primary applicant has been residing in Australia since 25 March 2016 with his wife and two children, aged 13 and 21, who at time of application for the visa were dependent visa holders on his Temporary Work (Skilled) (subclass 457) visa. His daughter (who has withdrawn as a review applicant) has subsequently begun studying a Bachelor of Nursing. Departmental information indicates that the primary applicant’s adult daughter applied for a Student (Subclass 500) visa application on 3 May 2019 to study a Bachelor of Nursing in Australia. The second named applicant also subsequently applied for a Subclass 500 visa. However, this was refused by the Department and a subsequent review at the Tribunal was withdrawn.
The Tribunal acknowledges that a visa cancellation outcome may impact upon the dependent applicant son’s immediate future and schooling by causing a temporary disruption. For the applicant’s daughter it would remove her from having an immediate family life with them in Australia. The primary applicant suggested in the hearing any potential long-term family plans in Australia would be impugned from cancellation. There may also result in some degree of temporary financial hardship. However, the Tribunal is satisfied that the applicant’s son, as a Chinese citizen, would be able to pursue his education outside of Australia should he be required to depart. The primary applicant would also be able to work in China as a Chinese citizen. He is now further equipped with the added experience of working for years in Australia.
· the subsequent behaviour of the applicants concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The primary applicant did not respond to the Departmental Notice. The Notice was sent via registered post to the applicants’ last known address according to Departmental records, which was also confirmed by his adult daughter through electronic correspondence.
· any other instances of non-compliance by the applicants known to the Minister
The delegate noted that the primary applicant’s English language proficiency test requirement was waived in relation to his Temporary Work (Skilled) (Subclass 457) visa application. He stated that his nominated salary (associated with the incorrect information regarding his employment history with Fujian Xinhuayuan Construction Engineering Co. Ltd) was claimed to be equal or above AUD96,400 per annum. He agreed with the Tribunal in the hearing that his salary in China was more like RMB 108 -110, 000 per annum – a significant disparity in dollar equivalent with the claimed Australian figure. The Tribunal is satisfied that, in not declaring his true salary, the primary applicant circumvented a crucial further element of the visa grant criteria (a language criterion) through the provision of ‘incorrect (salary) information’.
· the time that has elapsed since the non-compliance
The Tribunal notes that well over four years have elapsed since the non-compliance occurred. As the primary applicant has resided in Australia during this period the Tribunal considers he and his family would have established some ties to Australia. However, saying that, it is apparent that the primary applicant has only been able to reside in Australia because he provided ‘incorrect information’ in his Temporary Work (Skilled) (Subclass 457) visa application in order to facilitate the grant of his visa.
· any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal finds that there is no information indicating any breaches of the law by the applicants since the non-compliance occurred.
· any contribution made by the holder to the community.
The primary applicant did not respond to the delegate’s Notice. The applicant indicated to the Tribunal in the hearing that they had not made any contribution to the community due to moving around a lot.
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.
Consideration of the prescribed factors, where relevant; any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the visa were cancelled, the primary applicant would become an unlawful non-citizen and be liable for immigration detention and removal from Australia under the provisions of the Migration Act. However, the Tribunal considers that any possibility of immigration detention could be mitigated by voluntary departure.
If the visa were cancelled, the primary applicant would be subject to section 48 of the Migration Act. He would have limited options to apply for further visas in Australia and would also attract the provisions of Public Interest Criterion 4013 which would prevent the grant of certain further visas to him for a period of three years from the date of visa cancellation.
·whether there would be consequential cancellations under s.140
The primary applicant’s wife and child are dependent on his Temporary Work (Skilled) (Subclass 457) visa. They will, therefore, have their visas consequentially cancelled as a result of an unfavourable cancellation outcome.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
Australia has signed the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”
Australia has signed the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) which provides that:
“The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State…”
Relevant Departmental policy instructions (PAM 3) relating to family separations state (at paragraph 76) that:
“Obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)…”
The Tribunal is aware from the recent case of DXQ v MICMSMA [2020] FCA 1184, that Australian courts have stressed that the best interests of the child be paramount in its considerations. The Tribunal notes that the CROC has been taken into consideration. The Tribunal - it must be noted - has received no pertinent submission from the applicants addressing this particular issue (the best interests of the child). It has had no information provided by the applicant at all to assist its deliberations in this review – other than the notification of the daughter’s withdrawal from the review and Student status.
The applicant indicated in the hearing that his earnest wish was that he “hoped his children could finish their study”. The Tribunal notes that his daughter (who withdrew from the review) has been granted a Student visa. She would not be forced to relocate with the rest of the family - if the cancellation were affirmed. She would thus not be prevented from achieving her father’s wish. It is true, she would not enjoy the physical proximity of her family if they were forced to relocate to China without her. Yet, the Tribunal does do not consider that the cancellation of the primary applicant’s visa would be against her best interest, individually. She has made a voluntary personal decision to follow her own career path and the separation will be a consequence of that decision.
The applicant’s son would undergo a significant change of schooling and would have to re-integrate into the Chinese system with which he is unfamiliar. However, due to the young age of the primary applicant’s son and his limited time spent onshore, the Tribunal is satisfied that he would adjust to life outside of Australia - were his applicant parents required to depart and he to return to his homeland. The Tribunal is satisfied that in his case his best interests would be to remain with his family unit. Furthermore, the Tribunal is aware that the primary applicant’s wife and child are temporary visa holders. They will be consequentially cancelled as a by-product of the applicant’s cancellation and thus can depart Australia together with the primary applicant.
The Tribunal notes that the primary applicant has not raised any protection claims. The Tribunal finds there is no evidence he has been found to be a refugee under the Convention and Protocol Relating to the Status of Refugees. Thus, there is no evidence before the Tribunal that Australia has non-refoulement obligations in respect of the applicant.
·any other relevant matters, including the degree of hardship that may be caused to the primary applicant and any family members.
The Tribunal understands that a decision to affirm the cancellation of the primary applicant’s visa could induce hardship for the primary applicant and his family. For instance, he would be deprived of any salary he earns - putting the family at an immediate financial disadvantage. His wife and child would have their visas consequentially cancelled and this would cause further disturbance through the need for the family to relocate to China and his son to change school systems.

However, when examining this consideration, it is readily apparent that any benefit that the primary applicant and his family have encountered in Australia is a by-product of his involvement in serious immigration fraud. Any hardship that potentially befalls the family can be attributed to this activity. His involvement in submitting ‘incorrect information’ and ‘bogus’ documents in his visa application has impugned the integrity of the Australian immigration program.
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.
The Tribunal has examined fully the various considerations in the present case and weighed them. The effect a potential cancellation would have on the primary applicant’s children and their ‘best interests’ has remained the primary consideration for the Tribunal. However, having weighed the various considerations before it the Tribunal remains particularly concerned at the intricate pattern of deception undertaken by the applicant and his agent. The Tribunal gives this behaviour maximum weight because, if allowed to thrive, it could impugn the entire Business visa program. Furthermore, the improper activities revealed by the Departmental integrity check were all done in pursuit of the grant of a visa to which the applicant would never have been normally entitled.
Thus, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Michael Cooke
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2020] AATA 4495

8 September 2020

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