Zhang (Migration)

[2021] AATA 4292

Zhang (Migration) [2021] AATA 4292 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yulei Zhang

CASE NUMBER:  2108839

HOME AFFAIRS REFERENCE(S):          BCC2018/4767226

MEMBER:Kira Raif

DATE:13 October 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 13 October 2021 at 1:37pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Subclass 189) visa – applicant had given incorrect answers in the application – applicant claims he had no knowledge about the provision of bogus documents – applicant did not have a spouse or de facto relationship with Ms Chen – applicant has made a contribution to the community – best interests of the applicant’s daughter require her to remain in Australia – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

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 May 1991. He was granted the Skilled Independent (Subclass 189) visa in March 2017. In 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. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 7 July 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ms Ming. 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 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.

   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 following information is contained in the NOICC and the primary decision record (and was the subject of the Tribunal’s correspondence pursuant to s. 359A of the Act.) The applicant applied for the Skilled visa in Subclass 189 on 28 September 2016. In that application the applicant claimed Ms Meiqin Chen was his de facto partner and stated that their relationship began on 17 December 2014. Ms Chen was included as a secondary applicant and a member of the family unit. The applicant provided Ms Chen’s personal information, including details of her passport.

10. The applicant included with his application a number of documents evidencing his relationship with Ms Chen. These included three of ANZ bank statements showing an address at Rider Blvd, Rhodes for the periods April 2015, April 2016 and August 2016. The applicant and Ms Chen were granted the Skilled visas on 21 March 2017.

11. Since the visas were granted, the Department carried out further investigations. The primary decision record indicates that the residential address shown on the ANZ bank records does not match the residential address officially linked and registered to those documents.

12. It is noted that the applicant included with the application a statement dated 7 November 2016 describing his relationship with Ms Chen. It was stated that the applicant and Ms Chen first met in July 2014, opened a joint account from 1 November 2014 and started to live together on 17 December 2014 at Rider Boulevard, Rhodes. The applicant submitted a residential tenancy agreement for that address signed by him and Ms Chen in December 2014.

13. The primary decision record indicates that

    a.in February 2016 Ms Chen declared her intended address at Liverpool street Sydney on her Incoming Passenger Card.

    b.when the visa applicant applied for a temporary Skilled visa in February 2016, he stated that his marital status was ‘never married’.

    c.in January 2020 the applicant completed the sponsorship form for another person. In that form, in response to a question whether he had ever been in a de facto relationship, the applicant stated ‘no’.

14. In his written response to the NOICC the applicant concedes that he had given incorrect answers in the application for the Skilled visa when claiming to be in a de facto relationship with Ms Chen, when claiming that the relationship commenced in December 2014 and that the couple were living together at Rhodes. The applicant concedes there was non-compliance with s. 101(b) of the Act. The applicant states that he had no knowledge or involvement with respect to the provision of bank records and these documents were provided by his migration agent but the applicant concedes there was non-compliance with s. 103 of the Act.

15. In his statement to the Tribunal submitted on 21 September 2021 the applicant states that  after completing his study in Australia he decided to stay in Australia and prepared the documents. A friend recommended a migration agent Xin Chen to him. The agent told him that the visa process would take a long time and there was no certainty of the visa grant, so the agent suggested there was another person in the same situation and they could apply as boyfriend and girlfriend and this way he could get his visa. The applicant claims he trusted his friend and the agent, his visa was soon to expire and he did not have much funds as a recent graduate. The applicant describes his interactions with the agent and states that the agent prepared the documents and he provided some personal documents to the agent. The applicant states that he did not know how his application was submitted and did not know whether the agent had fabricated any documents. He had not seen the ‘love story’ or the bank statements before and if he did, he may have changed his mind. The applicant states that after the visa was granted, he was unable to contact the agent and did not get the promised fee back and realised that he may have been ‘tricked’ but he did not have the courage to report it to Immigration.

16. In his submission to the Tribunal of 6 October 2021 the applicant repeats that evidence. Essentially, the applicant confirms that he never had a de facto relationship with Ms Chen but was advised by his agent to include Ms Chen in his application in order to obtain the visa. The applicant concedes that he provided incorrect answers but claims he had no knowledge about the provision of bogus documents, which were prepared by his previous migration agent.

17. Having regard to the information cited above, as well as well as the applicant’s own evidence, the Tribunal finds that  the applicant did not have a spouse or de facto relationship with Ms Chen. The Tribunal finds that the applicant gave incorrect answers when he claimed to be in a de facto relationship with Ms Chen from December 2014 and when he claimed he had lived at the same address as Ms Chen. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided and there was non-compliance with s. 101 of the Act.

18. The Tribunal further finds that the ANZ bank statements showing a particular address are bogus documents as they were altered by a person without authority to do so. The Tribunal acknowledges the applicant’s evidence that the documents were prepared by his then migration agent and provided without his knowledge (and presumably the applicant claims without his consent) but the Tribunal is of the view that the legislation does not require the applicant’s knowledge of consent for s. 103 to be engaged. The Tribunal finds that the applicant gave, or caused to be given, bogus documents. The Tribunal finds that there was non-compliance with s. 103 of the Act.

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

    Should the visa be cancelled?

20. 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).

21. 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

22. The applicant concedes in his response to the NOICC that he was not in a de facto relationship with Ms Chen when he made the application of the Skilled visa and during the processing of that application. The correct information is that the applicant did not reside with Ms Chen at the same address and did not use the same bank account.

    The content of the genuine document (if any)

23. The content of genuine bank records would not show the applicant and Ms Chen residing at the address specified on the presented documents and would not show the use of a joint account by the applicant and Ms Chen.

    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

24. The applicant states in his response to the NOICC that the decision to grant the visa to Ms Chen was based on incorrect information. However, the applicant’s oral evidence to the Tribunal is that he claimed 5 points on the basis of his de facto relationship. The applicant claims that he could have applied on his own and did not need the points but the issue is not what he could have done but what he did. The applicant’s evidence is that he did rely on Ms Chen’s points because he believed the visa would be granted quicker and there was more certainty with a higher score.

25. The Tribunal finds that the applicant did rely on de facto points to gain the higher score and therefore that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

26. The circumstances of the non-compliance are set out above. In his response to the NOICC and evidence to the Tribunal the applicant explains that he did not know Ms Chen and only heard her name from the migration agent. The applicant also claims that it was the agent who presented the ANZ bank statements. The applicant claims that when he applied for the Subclass 485 Provisional Skilled visa, he correctly stated that he was never married and he also provided correct information when sponsoring his wife for the visa and stating that he was not in a relationship previously.

27. The applicant explains in his statement provided in response to the NOICC that when he was planning to make the visa application, a friend recommended a migration agent to him and the agent told him that it would be difficult for him to get the visa and that it would be easier to get the visa if he did this with a partner. The applicant states that he trusted the agent but later could not contact him. The applicant states that he did not know how the agent handled the application or what documents were submitted or that the documents were fabricated as he had only provided his documents to the agent and the agent told him he would help with all the forms. The agent assured him it was all legal. The applicant denies having any knowledge of involvement in the provision of the bogus bank records and claims he had not seen those.

28. In oral evidence, the applicant also claims that after he completed his study in Australia, his visa was due to expire and he wanted to appoint an agent to apply for the Skilled visa and he used the agent recommended by a friend. The agent told him that with his qualifications, the points allocation was low and there would be a long waiting period. The agent told him there were other students in a similar situation and that he could gain 5 points if he had a de facto partner. The applicant states that he did not know de facto relationships were ‘serious’ and he asked the agent if it was legal and the agent told him it was a little ‘technique’ to use. The applicant claims he thought about it and decided to make that application. The applicant claims that he never looked at the documents submitted with the application and did not know about the ‘love story’ and had not signed it. He never had an ANZ bank statement and it was only later on he realised he was ‘scammed’. The applicant claims he did not sign the form and did not prepare the documents and had not signed any documents and he believes the agent knew the true situation. The applicant claims that both he and Ms Chen were claiming the extra points.

29. The Tribunal finds the applicant’s evidence unconvincing. Firstly, on the applicant’s own evidence, he knew that he was making the application on the basis of a de facto relationship with another person and he was aware that such a relationship did not exist. The applicant’s evidence is that his agent advised him it would be difficult to get the visa otherwise and that he wanted to rely on the extra points and that is why he decided to follow the agent’s advice. That indicates that the applicant was well aware of the claims that were being made on his behalf. It is unclear how the applicant could have believed the arrangement was ‘legal’, given that he was aware he was not in a de facto relationship (or even boyfriend / girlfriend relationship) with Ms Chen and that he referred to that relationship in the visa application to gain the additional points. The Tribunal is of the view that the applicant was well aware that incorrect answers were provided in his application.

30. Importantly, the Tribunal does not accept the applicant’s evidence that he was ‘scammed’. The applicant’s evidence is that he received advice from the agent that it would be hard for him to get the visa without the extra points and that he would get extra points for a de facto relationship. He gave the ‘go-ahead’ to the agent to claim he was in such a relationship when he knew that information was untrue. Thus, the Tribunal finds that the applicant was well aware of, and complicit in, the provision of incorrect answers and bogus documents whether or not he had completed the form and prepared the bogus documents himself or allowed his agent to do so on his behalf.

31. Secondly, the applicant would have had the opportunity (and an obligation in the Tribunal’s view) to review the application before it was submitted. In the Tribunal’s view, the applicant, as a trained accounting professional who planned to perform professional services in Australia, would be cognisant of the importance of checking forms and documents. The application forms clearly referred to the existence of the de facto relationship and a declaration that the information on the forms and attachments was correct in every detail. If the applicant did review the application, he would have seen the reference to the de facto relationship and the supporting evidence of the relationship, including the bank records with the incorrect addresses. Again, the Tribunal is of the view that the provision of incorrect answers and bogus documents would have been known to the applicant and that  the incorrect answers and bogus documents were provided with his knowledge and consent. 

32. Lastly, section 98 makes it clear that the applicant is responsible for the content of his application even if the forms were completed by another person. In this case, the Tribunal has formed the view that the incorrect information was provided with the applicant’s knowledge or consent. The Tribunal finds that  the provision of bogus documents was, at best, provided as a result of the applicant’s indifference about the veracity of his application or with his express permission. In any case, the Tribunal is of the view that the applicant did have the  responsibility  to check the content of his application before its submission and the Tribunal does not accept the applicant’s evidence that he was uninvolved.

33. The Tribunal finds that the applicant provided incorrect information willingly and knowingly and did so with the intention of obtaining the benefit of a more certain and expeditious visa grant.

    The present circumstances of the visa holder

34. In his response to the NOICC and evidence to the Tribunal the applicant outlines his present circumstances. The applicant states that he is married and has a daughter born in Australia in May 2019 who is an Australian citizen. In his submission to the Tribunal the applicant explains that after the grant of the Skilled visa, he married his wife Ms Ming and they had a daughter born, who is an Australian citizen. The applicant states that Ms Ming had made an application for a Partner visa, for which he acts as a sponsor.

35. The applicant states that his family had lived in Australia since his wife became pregnant and the family had not been able to visit due to the Covid restrictions so that he and his wife take care of their daughter and his wife had not been able to work for these reasons.

36. The applicant refers to his job as an accountant and states that he acquired work experience and formed good relationships with colleagues. He claims he continued to help with various tasks after the company ceased operations. The applicant states that since the company closed, he stayed at home looking after the child and he resumed work in early 2021. The applicant refers to his membership at the ICPA and his plans to get the CPA certificate.

37. The applicant submits that he and his wife always intended to live in Australia and have taken steps to be able to live in this country. The applicant states that in 2016 their family sold a property in China to enable him to purchase a property in Australia. His wife’s parents also sold properties in China to allow them to purchase another property in Australia and to upgrade their property so that the family could have a good life in Australia. The applicant states that if they were required to return to China, they would have to sell their properties in Australia and until the financial arrangements were finalised, they would have to rent in China. The applicant states that due to the rising cost of real estate in China, they may only be able to purchase a second hand property in an inconvenient location. The applicant claims that if he returns to China, his family would have nowhere to live for some time and renting would be another expense. It would take time to sell a house in Australia and to convert the funds to RMB and the conversion rate is not high. The applicant claims that if he was to sell his house in Australia, he could only afford a small house in China.

1. The Tribunal is prepared to accept that the applicant’s family sold property in China and purchased a property in Australia. The Tribunal acknowledges that if the family were to return to China, they may decide to sell properties in Australia. However, the applicant presented no probative evidence to the Tribunal about his assets in Australia and the funds the family is likely to receive through the sale of properties and any other assets. The applicant presented no evidence as to the cost of properties in China. Even if the Tribunal were accept that the property the applicant may purchase in China would be ‘second hand’ or not brand new and not in the applicant’s preferred location (which is not apparent from the presented evidence), the Tribunal does not accept this would amount to serious hardship or disadvantage to the applicant and his family.

2. The applicant refers to the length of time he has spent in Australia, noting that he had completed high school and university and got married and has a child in Australia and states that he considers Australia his ‘second home’. The Tribunal accepts that the applicant has spent considerable time in Australia, and his partner has also lived in Australia for some time while their child was born in Australia. The Tribunal accepts that the applicant considers Australia to be his home (even if he calls it ‘second home’) and that the applicant and his partner may prefer to remain in Australia. The Tribunal accepts that they are settled in this country. The Tribunal accepts that considerable hardship may be caused to the family if they were required to leave Australia as a result of the visa being cancelled.

3. The applicant states that he has plans for his child’s future in Australia. The Tribunal accepts that this is so but is of the view that due to the child’s young age, she will be able to adapt easily to life in China and the applicant may develop other plans for his daughter. If his daughter retains her Australian citizenship and chooses to live in Australia in the future, she will be able to do so. The daughter’s circumstances are addressed more fully below.

4. The applicant states that he had completed an accounting degree and his qualification and work experience could not be used in China and it would be difficult for him and his wife to work in their fields as the accounting standards in China are different and his qualifications and work experience would not be recognised. The Tribunal is prepared to accept that it may be difficult for the applicant to find employment in that specific field if the applicant does not hold local qualifications and experience, but it may be possible for the applicant to find employment in a related field (for example, financial services or another area) where international experience and knowledge may be of advantage. The applicant presented no probative evidence to the Tribunal concerning job opportunities other than the very broad statements he has made about potential difficulties in finding employment in China and the Tribunal is not prepared to accept such statements.

5. The applicant states that he and his partner planned to open a business earlier this year and made an investment. The Tribunal accepts that if the applicant is required to leave Australia as a result of his visa being cancelled, he would be unable to continue with the business.

6. The applicant’s partner provided a declaration referring to the family’s settlement in Australia, her past employment and her settlement in Australia. Ms Ming outlines the difficulties the family may face if required to return to China. She repeated that information in oral evidence to the Tribunal.

7. The Tribunal accepts that the family own properties in Australia and planned to operate a business. The Tribunal accepts that they intended to, and prefer to, live in Australia and to bring their relatives to Australia. The Tribunal accept that the child is an Australian citizen born in Australia and who has lived her life in Australia. While the Tribunal has found some of the applicant’s evidence exaggerated, and much of it unsupported, the Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled and if the cancellation results in the applicant being required to leave 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

8. 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

9. There are no other instances of non-compliance.

   The time that has elapsed since the non-compliance

10. The application was made in September 2016 and approximately five years passed since the non-compliance. The Tribunal does not consider this to be a significant period of time but acknowledges that the applicant has lived in Australia for a longer period and has formed strong ties in the country. The Tribunal also acknowledges the applicant’s evidence that his family has planned to live in Australia and he considers Australia his second home.

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

11. There are no known breaches of the law. The applicant claims he has been a law-abiding citizen.

    Any contribution made by the holder to the community.

12. The applicant refers to his employment and the contribution to the company. The applicant refers to the donations made by him and his partner and the help he provided to his fellow students during his university study. The applicant states that he did not rely on the government payments because he thought these should go to people in need. The applicant told the Tribunal that his wife makes donations and assists in childcare. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to the community. In his submission to the Tribunal the applicant also refers to his employment in the field of accounting, stating that he has made a contribution through employment. The Tribunal accepts that evidence.

13. 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.

14. The visa held by the claimed de facto partner Ms Chen would be subject to the consequential cancellation. The applicant told the Tribunal he has no knowledge of Ms Chen’s 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

15. The applicant’s daughter was born in May 2019 and is an Australian citizen and the applicant claims that it is in the best interest of his child that the cancellation is set aside so that the child can reside in Australia with both parents. In his evidence to the Tribunal the applicant states that his child has always lived in Australia, in the care of her parents, and she is used to life in Australia, including various outings and childcare. The applicant refers to his daughter’s settlement in Australia and states that she is a sensitive child and a move to China may affect her psychologically. In his submission to the Tribunal of 6 October 2021 the applicant also refers to general articles about child’s development and the role of family and the applicant’s partner provided a declaration to the Tribunal outlining the effect of a visa cancellation on their child. The applicant told the Tribunal that his daughter likes the environment in Australia and they go on outings and spend time with the child.

16. The Tribunal accepts that the child is used to life in Australia but the applicant has not satisfied the Tribunal that the child would be psychologically (or otherwise) affected by relocating to another country. In that regard, the Tribunal considers the provision of generalised articles unhelpful and it would have preferred to have evidence that  takes account of the specific circumstances of this family.

17. The Tribunal is generally of the view that  given the child’s young age, she would be easily able to adapt to life in any other country, including China. It is not uncommon for children to migrate to a new country with parents and there is nothing in the applicant’s evidence that  would indicate that his daughter’s particular circumstances  would render her unable to adapt to the new environment or make it difficult for her to do so.

18. The applicant claims that it would be hard for him to get a well-paid job in China and he would have to work long hours and may not be able to maintain the work-life balance and he would spend less time with his child, which might affect his daughter. The Tribunal is mindful that there is no evidence to support these assertions. The applicant also claims that the education environment in China is very stressful and children study very hard. While the Tribunal accepts that the environment for the child would be different in China, the applicant has not satisfied the Tribunal of any benefit of one type of environment over the other. That is, the Tribunal is not satisfied that the environment in China, while different, would necessarily be worse for the child.  

19. The Tribunal is of the view that given the child’s young age, it is in her best interests to be cared for by both parents.  However, this need not necessarily occur in Australia, irrespective of the child’s citizenship or country of birth. If the applicant is required to leave Australia as a result of the cancellation of his visa, his partner may be unable to obtain the Australian visa and would also leave Australia. As such, the child would continue to be in the care of both parents irrespective of whether the child resides in Australia or in China. Ordinarily, this would mean that the best interests of a child would not be adversely affected if a parent’s visa is cancelled and if both parents leave Australia as a result and the family unit is preserved.

20. However, the Tribunal acknowledges that the situation in the present case is different because China does not recognise dual citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that “Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce”. The Tribunal acknowledges that if the child retains her Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the child is unlikely to be able to acquire the Chinese citizenship and that may mean that she may not have access to public systems including healthcare and education. It may be necessary for the child to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the child will require a residence permit to remain in China on a long term basis.

21. The Tribunal accepts that the residence of the Australian citizen child in China, where she cannot acquire the Chinese citizenship without renouncing the Australian citizenship, and where she may be required to reapply for visas and routinely register with the local authorities and have limited access to government services may cause hardship to the family and the child. The Tribunal accepts that given her Australian citizenship, the child may experience significant limitations in various aspects of her life in China, including residence permits, access to education, healthcare and employment unless the Australian citizenship is renounced and the Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant’s daughter require her to remain in Australia and that her best interests would be adversely affected by the cancellation of the applicant’s visa. This is a primary consideration but it is not a determinative one.

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

22. The applicant does not claim that Australia’s non-refoulement obligations are engaged and he told the Tribunal that nothing would happen to him in China. The Tribunal finds that non-refoulement obligations would not be breached as a result of the cancellation.

23. The applicant’s daughter is an Australian citizen. His wife lives in Australia but does not hold a permanent visa. The rest of the applicant’s family are in China. The applicant’s evidence suggests that if he has to return to China, his wife and child would accompany him. The Tribunal does not consider that the principles of family unity would be breached as a result of 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

24. 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 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 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 is no longer a permanent resident of Australia, he may be unable to continue to sponsor his partner for the Partner visa, which may lead to her visa application being refused, and the applicant and his partner would be unable to sponsor other family members if they do not hold permanent visas.

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

25. The applicant outlined several matters which he claims would cause hardship to him and his family, if the visas are cancelled. These are addressed above. Ms Ming also spoke about the housing issue if the family was to return to China. Ms Ming states that it would be hard for her to get a job in China as she had not worked since the birth of her daughter and she would face discrimination as there are no part-time jobs. If she cannot find a job, her husband would face the financial pressure to support the family while she would have to stay at home to take care of the child. Ms Ming states that if they have no property in China, they would be classified as outsiders. As noted above, the Tribunal accepts that hardship would be caused to the applicant and his family by the cancellation of the visa. The Tribunal also accepts that the cancellation of the applicant’s visa would affect the ability of his partner to obtain the Australian visa.

26. The applicant and Ms Ming state that since the visa has been cancelled, they have been affected psychologically and are not in a good mental state. The Tribunal is prepared to accept that  evidence although it is unsupported by any probative evidence.

27. The applicant provided character and supporting statements from others and the Tribunal accepts that those who provided statements believe the applicant to be a person of good character.

28. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave incorrect answers on the form and that he provided bogus documents with his Skilled visa application and that there was non-compliance with ss. 101 and 103 of the Act. The Tribunal finds that there are grounds for cancelling the visa.

29. The Tribunal considers that there are very strong reasons why the visa should be cancelled. Primarily, this is because of the circumstances in which the non-compliance occurred. The applicant’s evidence is that he wanted to gain additional points on the basis of a de facto relationship in order to obtain his visa quicker and to gain more certainty of visa grant, and therefore decided to provide incorrect information in the visa application, pretending to be in a de facto relationship which he knew did not exist. That is, the provision of incorrect information and bogus documents was done deliberately with the aim of obtaining the visa, whether it was done directly by the applicant or with his knowledge and consent. The applicant concedes that he relied on the relationship points to obtain the visa. The Tribunal considers that the fact that the visa grant was based on the incorrect information / bogus documents, as well as the circumstances in which the non-compliance occurred, weigh very heavily in favour of the cancellation.

30. The cancellation of the visa would not breach Australia’s non-refoulement obligations. However, the Tribunal accepts that the cancellation would cause considerable hardship to the applicant and his family, given the length of time the applicant has lived in Australia and the degree of his settlement in Australia, which include property and business investments. The cancellation of the visa is likely to result in the loss of other opportunities that the couple would have by remaining in Australia and, importantly, if the applicant’s visa is cancelled, his partner is unlikely to be granted the Partner visa. 

31. Important for the Tribunal, in this case, are considerations of the child’s best interests, which are a primary consideration (although not a determinative one). While the Tribunal does not accept much of the applicant’s evidence in relation to his daughter – such as the claims that she would find it difficult to adapt to life and environment in China, or that the child would be affected psychologically be relocation – the Tribunal does accept, on the basis of available country information that as a non-citizen in China, the child would have limited opportunities in many aspects of her life. The Tribunal has formed the view that  the child will experience significant hardship by relocating to China and that it is in her best interests to remain in Australia.

32. The Tribunal also acknowledges that the applicant may have been entitled to the visa without relying on the de facto points. While there is no doubt that the applicant did rely on these points because he believed he would have a better chance of getting the visa and would be granted one quicker, the applicant’s evidence is that he was capable of achieving the pass mark on his own. This is not the case in which it can be positively said that the visa would not have been granted if the correct information was known.

33. Overall, in the circumstances of this case, the Tribunal has decided to place greatest weight on the best interests of the child and the hardship that would be caused by the cancellation.

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

   DECISION

2. 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