Zhang (Migration)

[2019] AATA 1386

Zhang (Migration) [2019] AATA 1386 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Li Zhang
Mr Pei Zhang
Ms Miaoer Zhang

CASE NUMBER:  1830182

DIBP REFERENCE(S):  BCC2017/1737437

MEMBER:Kira Raif

DATE:3 May 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 03 May 2019 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – ground for cancellation – incorrect information in visa application – employment history ­– bogus document – resume – recommendation letter – insurance payment record – consideration of discretion – grant of visa based on incorrect information – deliberate and calculated decision – untruthful information in response to NOICC – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

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

2. The applicants are nationals of China. The first named applicant (‘the applicant’) was born in February 1978. The applicants were granted the Skilled visas in March 2016. On 24 September 2018, the applicants were issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss.101 and 103 of the Act. The applicants provided their response to the Notice and their visas were cancelled in October 2018. The applicants seek review of the delegate’s decision.

3. 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 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.

4. The applicants appeared before the Tribunal on 2 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

8. 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.

9. 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 and also that the delegate had reached the necessary state of mind to engage s.107. 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?

10. 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.

11. The applicants provided to the Tribunal a copy of the primary decision record which contains the following information.

    a.The applicant made the application for the Skilled-Nominated visa on 14 January 2016.

    b.On pages 10 – 11 of the application form, the applicant stated the following in relation to her employment:

    Position   Civil Engineering Technician
    Employer   Tianjin Urban and Rural Construction, China
    Dates  01/08/99 – 13/01/16

    Description of duties  assist civil engineering professionals in establishing engineering management plan by collecting and analysing data, estimating costs, interpreting work assignment instructions, applying appropriate procedures, and selecting equipment. Conduct review of detailed drawing, sketches, charts and designs.

    Duration of employment         8 years in the past 10 years

    c.On Page 5 of Form 80, in response to Question 19, the applicant provided the following information about her employment

    Date from    August 1999
    Date to   current
    Name of business                  Tianjin Urban and Rural Construction
      Engineering
    Type of business                    Engineering
    Your occupation / duties        Civil engineering technician engineering

    management, collecting and analysing data, conducting review of detailed drawing and sketches, conducting test of equipment, etc

    Full address of business No 5 Changle Li, Chongqing Road, Heping
      District, Tianjin, China

    d.On Page 17 in response to Question 53 the applicant signed a declaration that the information she had supplied in the form was complete, correct and up to date in every detail.

    e.On Page 4, in response to Question 24, the applicant provided the following information:

    Are you currently employed    Yes
    Name of employer                  Tianjin Urban and Rural Construction
      Engineering
    Address No 5 Changle Li, Chongqing Road, Heping
      District, Tianjin, China 300050
    Email address   [email protected]
    Type of business                    engineering
    Occupation / position             civil engineering technician

    Detailed job description          engineering management, collecting and analysing data, conducting review of detailed drawing and sketches, test of equipment, etc.     

    f.The applicant enclosed a number of documents with her application. These included:

    i.A resume that stated that the applicant held one job as a civil engineering technician with Tianjin Urban and Rural Construction Engineering Supervision Company Limited from 1 August 1999. The applicant had listed nine duties and responsibilities and three representative achievements relating to this job.

    ii.A certified copy of the recommendation letter from Tianjin Urban and Rural Engineering Supervision Company Ltd. The letter is from Wang Xiaoli, head of Engineering Management Department. The letter states that the applicant was employed as a civil engineering technician from 1 August 1999 until the date of the letter 21 August 2015. It lists the applicant’s duties and responsibilities in the same way these are described in her resume.

    iii.Tianjin Social Insurance Payment proof. The document bears the applicant’s name and ID, the company name (Tianjin Urban and Rural Engineering Supervision Co Ltd) and states that the applicant had been paid basic pension insurance for 15 years and 8 months from August 1999 to March 2015. The document was issued by Heping District Branch.

    g.The applicant was granted the Skilled-Nominated visa on 9 March 2016.

    h.The Department subsequently conducted enquiries about the applicant’s employment. The following information was obtained:

    i.Tianjin Urban and Rural Engineering Supervision Co Ltd advised that nobody with Ms Li Zhang’s name, either in English letters or in Chinese characters, had ever worked for their company.

    ii.The company’s records were correct from 1994.

    iii.Heping District branch advised the Department that there are no records for any social insurance payments made in Heping District by a person with Ms Li Zhang’s name and ID number as documented on her Social Insurance payment.

    i.Further, the Department received an allegation in May 2017 which states that the applicant had falsified her work experience, photoshopped the social security insurance using another person’s record, and falsified her tax records. The applicant had persuaded the referee to lie on the reference letter. The allegation states that the applicant worked as a salesperson for about 10 years and stopped working following the birth of her child. This information was put to the applicant in accordance with s. 359A of the Act.

12. In her declaration of 8 October 2018 in response to the NOICC, the applicant denied the allegation that she had willingly provided incorrect answers in her application. The applicant denied that she has not worked at Tianjin Urban and Rural Construction Engineering Supervision Company Ltd as a civil engineering technician. The applicant denied that the recommendation letter signed by Wang Xiaoli is a bogus document. The applicant stated that she cannot comment on the social insurance payment record as this document was given to her by the company and she was not aware that it could be a bogus document.

13. With respect to her employment, the applicant states that she was employed at the company from August 1999 to January 2016. The applicant states that the company was a state-owned enterprise and because it had limited government sponsored positions, she was told she had to work ‘off the books’, which was a common arrangement for government enterprises. She agreed on condition that she would be paid social insurance. The applicant states that around 2017 the Chinese Central Commission for Disciplinary Inspection launched an investigation into the company, the former director had been arrested and convicted and the applicant provided links to websites.

14. The applicant states that every employee or those closely associated with the company when the former director was in charge had resigned, fled, disappeared, had been detained or sentenced. The government had replaced all employees of the company and for that reason there is no one who can attest to her employment history. Nobody would be willing to come forth and disclose the existence of ‘off book’ former employees. 

15. The applicant states that the referee Wang Xiaoli had left the company. The applicant contacted her but she is hesitant to help and is not willing to admit knowledge of these arrangements. She can provide a statement to confirm her letter of recommendation is not a bogus document and to confirm the applicant’s duties. The applicant provided a statement from Ms Wang with her response to the NOICC, confirming that the applicant had worked as a civil engineering technician at the company from August 1999 to January 2016. The Tribunal is mindful that according to the allegation, the applicant made an arrangement with Ms Wang to obtain the employment reference. If true, Ms Wang’s evidence cannot be considered as probative evidence of the applicant’s employment, particularly as there is very little other evidence that can support these claims.

16. With respect to the social insurance payment record, the applicant states that she is not aware it could be a bogus document. The applicant states it was her fault for not checking the authenticity of the records with the Social Insurance Fund Management centre before lodging her application because she placed too much trust in the company and it is not common to make inquiries about insurance payments. The applicant stated that she decided to forfeit her pension.

17. The applicant states that the incorrect telephone number and email address for the company on Form 1221 was due to a typographical error and that she did provide correct details in her VETASSESS application.

18. In her response to the Tribunal’s s. 359A letter dated 7 February 2019, the applicant requested immunity from criminal prosecution but provided no other meaningful comments or response to the issues raised in the Tribunal’s letter.

19. The Tribunal has considered the applicant’s explanations to the delegate but does not consider these convincing. The documents which the applicant presented with her application were confirmed by the employer as not having been issued by that company. Although the applicant claims she worked ‘off the books’, the fact that her social insurance records were also found not to have been issued by the company supports the information in the allegation that the applicant did not in fact work there. The Tribunal considers it problematic that the applicant claims there is nobody in the company willing to confirm her employment other than the referee Ms Wang. The Tribunal is mindful of the allegation that the applicant had convinced the referee to lie on the reference letter. If the allegation was true, the applicant’s indication that Ms Wang can confirm her employment but is the only person in the company who can do so supports the conclusion that the applicant did not work in the company and that Ms Wang has agreed to provide untruthful information about her employment.

20. The applicant claims she has decided to ‘forfeit’ the pension benefits because she decided to settle in Australia. The Tribunal does not accept that evidence. The applicant claims to have worked in the company for more than 15 years. If that is the case, and if she genuinely believed she was paid a pension throughout her employment, such a pension would have been available to her irrespective of the applicant’s place of residence or her decision to migrate. The Tribunal does not accept that the applicant would forfeit the funds simply because she decided to live in Australia and that no evidence of the pension would be available after 15 years of employment. In the Tribunal’s view, the applicant’s evidence indicates that she was fully aware that she had no entitlement to the pension and that is because she has not worked for the company as claimed.

21. In oral evidence to the Tribunal, the applicant confirmed that she did not work for the Tianjin Urban and Rural Construction and said that she feels regretful about it. The applicant confirmed that the information she gave in response to the NOICC, as well as in her application, was not correct. The applicant confirmed that she has never worked for Tianjin Urban and Rural Construction in any capacity. The applicant stated that she worked as a salesperson selling medical devices in a different company.

22. Having regard to the information obtained in the course of the Department’s investigations, the Tribunal’s concerns set out above and the applicant’s oral evidence to the Tribunal, the Tribunal finds that the applicant has never worked as a civil engineering technician at Tianjin Urban and Rural Construction company. The Tribunal finds that information about the applicant’s employment provided with the application was false. The Tribunal finds that the applicant filled in or completed her application forms in a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

23. The Tribunal finds that the employment documents which the applicant presented with her application, including the reference letter dated 21 August 2015 and the social insurance payment evidence dated 23 March 2015, were bogus documents because they purport to have been, but were not issued in relation to the applicant. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

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

    Should the visa be cancelled?

25. 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).

26. 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 Migration Regulations 1994. They are as follows:

    The correct information

27. The correct information is that the applicant did not work as a civil engineering technician at Tianjin Urban and Rural Construction company. The applicant’s evidence to the Tribunal is that she worked as a salesperson of medical equipment.  

    The content of the genuine document (if any)

28. The Tribunal found that the employment documents the applicant presented with the application were bogus documents. Genuine documents would not show that the applicant worked for Tianjin Urban and Rural Construction as an engineering technician.

    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

29. The applicant’s evidence to the Tribunal is that her husband’s occupation was removed from the occupations list, so she decided to apply as a primary applicant but her genuine occupation would not qualify her for the visa, so she decided to falsify her employment. The Tribunal is mindful that the evidence of employment was relevant to the award of points. The applicant’s own evidence is that she could not qualify for the visa with her genuine employment. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information and bogus documents.

    The circumstances in which the non-compliance occurred

30. In her response to the NOICC the applicant claims that she did work for Tianjin Urban and Rural Construction Engineering Supervision Company Limited and that her employment reference and taxation records were genuine. She states that the social insurance documents are not genuine due to the actions of her employer over which she had no control and she did not check these documents before submitting these.

31. The applicant’s evidence to the Tribunal was different, as the applicant admitted that she has not worked for the above company. The applicant told the Tribunal that initially her husband was the main application and they completed all the paperwork but by the time he was ready to make the application, his occupation was removed from the list, so they decided for her to become the main applicant. The applicant told the Tribunal that she had persuaded her referee to provide the employment reference. The applicant said that at the time her child was born, she was worried about poor air quality, kidnappings, etc. Also because of the registration system, they had to return to Tianjin where the situation was not good. Her child could not adapt to the kindergarten. That is why they decided to migrate to Australia. She wanted to give her child a better education and a better future. 

1. The applicant states that she has been regretful about her actions from the beginning. The Tribunal does not accept that expression of regret. The Tribunal is mindful that not only did the applicant falsify evidence about her employment in her visa application, she continued to provide the same untruthful information in response to the NOICC and claims to have done so for the sake of her child’s future. It was not until the applicant gave oral evidence to the Tribunal that she admitted the provision of false information. In the Tribunal’s view, if the applicant was genuinely regretful about her actions, as she now claims, she could have taken positive steps to correct the information and avoid the provision of incorrect answers in response to the NOICC. The Tribunal does not accept that the applicant and her husband are genuinely remorseful about these actions.

   The present circumstances of the visa holder

2. In her written response to the NOICC the applicant refers to her settlement in Australia. She states that her family purchased two residential properties in NSW and incorporated a company which employs an Australian citizen. The applicant provided to the delegate evidence relating to the company’s operations. They bought a motor vehicle. Their child attends school. The applicant refers to the company that she and her husband run, specialising in exporting Australian goods to China and states that her husband plans to pursue a career as a financial planner. The applicant states that her daughter has made friends in Australia, is doing well at school and primarily speaks English. The applicant states that the family has assimilated into the local community. They are law abiding residents. The Tribunal accepts the applicant’s evidence.

3. The applicant states that the family had to dissipate ‘almost’ all of their assets in China to facilitate relocation to Australia and the family would suffer “irreparable financial harm” if their visas are cancelled and they have to return to China. The applicant has not presented documentary evidence of asset disposal in China or of any present holdings that the family may have in China. Further, there is no reason why the family would be unable to dispose of their assets in Australia, at least the real estate, and use these funds to re-establish themselves in China. The Tribunal does not accept that financial hardship would be caused to the family if they were required to relocate to China.

4. The applicant states that her daughter may not be able to attend school in China as English is now her primary language and they cannot afford to send her to an international school. Putting aside the fact that the family appears to have substantial financial means for the child’s schooling, the Tribunal does not accept that the child cannot attend a school in China. The Tribunal is mindful that the family has been living in Australia for a relatively short time, as the applicant told the Tribunal she and her daughter entered Australia around December 2016. A little more than two years has passed since the applicant’s and the child’s relocation to Australia. Until that time, the child would have been speaking Mandarin within her family and in her environment. Even if she has lost those skills during her residence in Australia (and the applicant concedes in oral evidence that the child communicates with parents and her grandmother in Chinese), the fact that the child was able to acquire another language in such a short period of time would suggest that she would be well able to re-acquire her Mandarin if she were to return to China. The Tribunal does not accept that the child would be unable to attend normal school in China.

5. The applicant also states in her response to the NOICC that her daughter would suffer ‘irreparable emotional harm’ if she was to leave her friends in Australia. The Tribunal does not accept that evidence. The child is six years of age. Given the child’s age, the Tribunal is of the view that she could easily make friends no matter where the child lives. The Tribunal is mindful that the family made the decision to relocate to Australia and in doing so, the child left her friends and the familiar environment in China. Evidently, the applicant did not believe that taking the child from her familiar environment and friends in China in order to migrate to Australia would cause emotional harm to the child and the Tribunal does not accept that such harm would be caused if the child were to travel from Australia to China.

6. The applicant states in her response to the NOICC that it would be unfair for her to lose the family’s livelihood in Australia due to the company’s wrongdoing. However, as the applicant now admits to having provided incorrect answers and bogus documents, it cannot be said that the cancellation occurs due to the company’s wrongdoing.

7. The applicant states that China’s economic situation would cause economic downturn and the family will suffer ‘irreparable harm’ as there is no guarantee that she and her husband will find jobs or that the child will attend a school. The issue of the child’s ability to attend school has been addressed above. The Tribunal notes that the applicant presented no evidence of having sought employment in China and of having been denied such employment. There is nothing to support the applicant’s claim that she or her husband will be unable to find employment and the Tribunal consider the applicant’s claims to be purely speculative. The Tribunal does not accept her evidence. The Tribunal also notes that the applicant has been away from China for a relatively short period of time. The applicant and her husband have some family in China. She claims to operate an export company, which may suggest that she has maintained links to the Chinese market. On the limited evidence before it, the Tribunal does not accept that the applicant or her husband would not be able to find jobs or resettle in China.

8. In oral evidence, the applicant spoke about her daughter’s settlement in Australia, her involvement in school activities and the fact that her daughter considers herself to be Australian. The Tribunal accepts that evidence.

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

9. In response to the NOICC the applicant reiterated that she did work at Tianjin Urban and Rural Construction. The applicant provided extensive explanations as to why her employment could not be verified by the company. She provided an explanation as to why her taxation records were not available and why the social insurance records could not be verified. The applicant also stated that Ms Wang was willing to verify her employment. The applicant now concedes that all of these claims were untrue as she did not work at the company. The applicant also failed to provide a substantial response to the Tribunal’s s. 359A letter and has not taken the opportunity to provide truthful evidence until the hearing. The Tribunal finds that the applicant has been less than truthful in her dealings with the Department and the Tribunal.

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

10. The Tribunal is not aware of any other instances of non-compliance.

    The time that has elapsed since the non-compliance

11. The application for the visa was made in January 2016. A little over three years passed since the non-compliance.

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

12. The Tribunal is not aware of any other breaches of the law.

    Any contribution made by the holder to the community.

13. The applicant told the Tribunal that her company employs Australian citizens, one of whom is a person with disability. She provided evidence of company ownership and of tax payments. The Tribunal accepts that the applicant has made some contribution to the community.

14. Mr Zhang told the Tribunal that they want to rectify their mistake and contribute to the community and they have considered setting up a charity in their daughter’s name. The Tribunal is mindful that the family has been living in Australia for more than two years and there is no evidence of that having been done. In the Tribunal’s view, if these intentions were genuine, the family had the time and the opportunity to set up a charitable fund. Mr Zhang explained to the Tribunal that he was unware of the possibility before but his evidence is that he worked for an Australian bank in China for a number of years and has completed a Diploma of Financial Planning in Australia in 2017. The Tribunal is not satisfied that Mr Zhang was unaware of the possibility of setting up a charitable entity until now, given his educational qualifications and past experience. Having graduated with a Diploma of Financial Planning, Mr Zhang would have been well equipped to acquire information about charitable funds, if he had any desire to establish one. The Tribunal has formed the view that Mr Zhang would have had the knowledge (or the capacity to acquire knowledge) and the opportunity to set up a charitable fund if he wished to and his claimed desire to set up such a fund is a recent invention. The Tribunal does not draw any adverse inferences from this evidence, but for the reasons stated, the Tribunal does not accept Mr Zhang’s evidence of his intention to set up a charity and to therefore make a contribution to the community.

15. 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 Procedures Advice Manual 3 (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

16. 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

17. If the applicant’s visa is cancelled, unless she is granted other visas, the applicant would be an unlawful non-citizen and may be detained. Her partner and child may also become unlawful non-citizens if their visas remain cancelled. There is no suggestion that they will be detained indefinitely. The Tribunal acknowledges that unless the applicants are granted other visas, they may be unlawful non-citizens and subject to detention and possible removal from Australia. There may be restrictions on the applicants’ future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for them to do so as a result of the cancellation. The applicants may also lose some entitlements they have acquired as Australian permanent residents.

    Whether there would be consequential cancellations under s.140

18. The visas held by the applicant’s spouse and daughter are subject to consequential cancellation and have been cancelled.

    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.   

19. The applicant states that her husband would be unable to receive adequate medical treatment in China. She refers to the pollution and poor air quality and poor food quality and states that it may have health ramifications for the family. The applicant states that the rate of cancer and morbidity conditions is increasing in China. Other than these generalised statements, the applicant has not presented evidence to indicate that the situation in China has had an adverse effect on her family’s health, or that it will occur in the future. The Tribunal is mindful that the family has lived the majority of their lives in China and they presented no evidence that as a result of that residence, there have been any health issues affecting the family.

20. The Tribunal does not accept the applicant’s claims and does not consider that such claims give rise to Australia’s protection obligations. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

21. The applicant states that her daughter was not well suited to the Chinese kindergarten but has been much happier since she came to Australia. She attended an Australian kindergarten and now an Australian school. She has learned the Australian anthem, and is settled here and is happy to be in Australia. In her post-hearing submission the applicant reiterates that her daughter’s entire schooling has been in Australia and she is used to the Australian system and would find it difficult to adapt to a school in China. The applicant states that her daughter is forgetting her Chinese and is improving her English. The Tribunal accepts that the child is settled in Australia and is used to the Australian schooling and general environment.

22. The applicant states that in China, they would have to deal with a bad environment, the school restricting children playing outside during the school day, kidnappings, etc. There is very little probative evidence before the Tribunal, other than the applicant’s assertions, to support these claims. Whatever the environment in China, the applicant has not presented evidence that her family’s health or wellbeing would be adversely affected if returned to China. While the Tribunal accepts that the applicant and her daughter would prefer to remain in Australia, that is not sufficient to establish that the child’s best interests require her presence in Australia.

23. The Tribunal accepts that the child has been attending an Australian school and that her English has improved. However, the Tribunal is also mindful that the applicant and her daughter have been living in the country since December 2016, for a relatively short period. The Tribunal does not accept that the family would have any difficulties re-settling in China, where they have spent the majority of their lives, even if their preference may be to remain in Australia.

24. As noted above, the Tribunal does not accept that the child would be unable to attend a Chinese school or adapt to the environment in China or make new friends, even if she would be required to abandon her Australian friends and Australian connections. As for her language skills, even if the daughter’s Chinese is not as good as it was before migrating to Australia, the applicant has not satisfied the Tribunal that her daughter would be unable to pick up Chinese upon return to China. As noted above, the child appears to have had no difficulty acquiring English and in the Tribunal’s view, she would be equally capable of improving her Chinese, which she continues to use at home at present.

25. The applicant refers to pollution, the poor education system, food scares etc in China but aside from these general remarks, the applicant presented no evidence that her daughter’s health would be adversely affected if she were to live in China and the Tribunal does not accept that evidence.

26. The applicant told the Tribunal that her daughter is at a formative age and her return to China may adversely affect her mental health. The Tribunal does not accept that the age of six can be said to be a formative age but significantly, there is no medical or otherwise probative evidence to support the applicant’s contention that her daughter’s health, including her mental health, would be adversely affected if she were to return to China. The Tribunal is not required to accept the applicant’s claims unquestioningly.

27. The Tribunal acknowledges the applicant’s evidence that the education system and living environment are better in Australia but the applicant has not presented any evidence that her daughter would not be able to access education in China or that she would be adversely affected by the environment or other conditions in China. The applicant and her husband told the Tribunal that their daughter is growing well, and is more confident since she has lived in Australia. The Tribunal is mindful that this may be due to the child’s age, rather than her place of residence. That is, the Tribunal is not convinced that the child’s development would be any different if she was growing up in China. As for the child feeling Australian, the Tribunal is of the view that this depends on the environment she lives in. If the child was living in any other country, including China, she may feel part of that environment.

28. The applicant’s child is presently six years old. The Tribunal is of the view that it is in the child’s best interests to be with her parents. The Tribunal does not consider that the child would be adversely affected, either in terms of her health or wellbeing, if she were to live in China and while the Tribunal accepts that the child’s preference may be to remain in Australia, the Tribunal does not consider that her best interests require it, as long as she remains in the care of her parents. The Tribunal has formed the view that it is in the best interests of the child to live wherever her parents live and the Tribunal does not consider that must be in Australia. The Tribunal does not consider that the cancellation of the visa would adversely affect the child’s best interests.

29. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

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

30. The applicant repeatedly told the Tribunal that she came to Australia for a better future for her child and that her daughter prefers to live in Australia and does not want to return to China. These issues have been addressed elsewhere. Essentially, while the Tribunal accepts that the family, and the child, have settled in Australia, the Tribunal has formed the view that the family would be able to re-settle in China and resume their normal lives in that country.

31. The applicant told the Tribunal that her husband has been receiving medical treatment in Australia and if his condition gets more serious, he will need injections. The applicant states that if her husband returns to China, he may be unable to receive the same treatment as the treatment is only available in Australia. Following the hearing, the applicant presented to the Tribunal medical evidence in relation to her husband’s present treatment. The Tribunal accepts that he is receiving medical treatment. However, contrary to the applicant’s claim, the medical report does not indicate that the treatment is not available in China. The applicant has not presented any probative evidence to support her assertion that the required medical treatment would not be available to her husband in China. The applicant also failed to present probative evidence on what alternative treatment, if any, may be available even if that specific treatment is not. On the evidence before it, the Tribunal does not accept that the applicant’s husband would be unable to receive adequate treatment in China.

32. Mr Zhang’s evidence to the Tribunal is that the child would not be able to register in a Beijing school because they have no local household registration (hukou) and they would not be able to buy a property in Beijing unless they work there for five years and would be restricted in the number of properties they can buy. No evidence has been presented to support these claims and the Tribunal is mindful that the family did live in Beijing before migrating to Australia, despite not having the local hukou. The applicant told the Tribunal that her child attended childcare in the past when the rules were more relaxed but she would need the hukou to attend school. The applicant has not presented evidence to the Tribunal as to what is required to obtain a hukou in Beijing and whether the family would be able to register in Beijing. However, even if these claims are accepted, it may be that the family would have to relocate to Tianjin. The applicant has not provided persuasive evidence to the Tribunal as to why the family would be unable to re-settle there. Mr Zhang said that they had been living in Beijing for a number of years and that is where their friends are but the family’s decision to abandon these connections when migrating to Australia would suggest that they are capable – and believe themselves capable – of establishing new social connections in a new place of residence, if necessary. Thus, the Tribunal does not accept that the family would not be able to re-establish themselves in China, even if they were required to live in Tianjin rather than Beijing. Neither does the Tribunal accept the applicant’s claims that the family would not be able to resume normal activities, such  find employment, purchase a home, etc. The applicant presented no evidence in relation to the various restrictions she claims would apply to the family and has not satisfactorily explained how the family was able to overcome these in the past and why the same would not be possible in the future.

1. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there was non-compliance in the way described in the Notice because the applicant had filled in her form in a way that incorrect answers were given and also because she has given bogus documents with her application.

2. The Tribunal accepts the applicant’s evidence that the family sought migration on the basis of her husband’s employment and when that opportunity was no longer available, they decided to falsify her employment and make the application on that basis. The Tribunal accepts the applicant’s evidence that they had a strong desire to migrate to Australia and to provide a better future for their child and that is the reason they falsified the employment. The Tribunal is not satisfied that the family’s desire to live in Australia justifies the provision of incorrect answers and providing bogus documents with the visa application. 

3. Both the applicant and her husband claim they have been remorseful and repentant for their conduct since making the application and that feeling of remorse has affected their wellbeing. The Tribunal does not accept the expression of remorse is genuine, given the fact that the applicant continued to provide false or misleading information in response to the NOICC and did not provide truthful information in response to the Tribunal’s s. 359A letter and the first time they conceded the breach was in oral evidence to the Tribunal. The Tribunal has formed the view that the expression of remorse is self-serving.

4. The Tribunal accepts that the applicant and her family are well settled in Australia. The daughter attends school and has formed new friendships. The family operates a business and purchased a property in Australia. The Tribunal is prepared to accept there will be some financial implications if the visas are cancelled, although the Tribunal has formed the view that the family will be able to dispose of their assets if they had to return to China. The Tribunal accepts that the family has made a contribution to the Australian community. The Tribunal accepts that the family’s preference is to remain in Australia.  The Tribunal accepts that some hardship would be caused if the visas are cancelled, as the family would have to abandon their desire to live in Australia and return to their home country, where they would have to re-establish themselves.

5. There are no other known instances of non-compliance and no known breaches of the law. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. In particular, the Tribunal has formed the view that the best interests of the child would not be adversely affected by the cancellation as these do not require the child’s presence in Australia, as long as the child remains in the care of her parents.

6. The Tribunal acknowledges there are reasons why the visa should not be cancelled.

7. Against these considerations, the Tribunal places significant weight on the circumstances in which the non-compliance occurred and the applicant’s subsequent behaviour in relation to her obligations. The applicant and her husband’s evidence to the Tribunal is that when they realised that the husband would not be eligible for the visa, and they thought they had no other options, they decided to falsify the evidence of the applicant’s employment in order to fulfil their desire to come to Australia. That is, they made a deliberate and calculated decision to obtain bogus documents and rely on the bogus documents in the visa application because they knew they could not get the visas otherwise. Despite their claimed respect for the Australian values, the family made the decision that their desire to migrate was of greater significance than their obligations under the Australian laws.

8. The applicant’s own evidence to the Tribunal is that her genuine occupation would not qualify her for the visa and the husband’s occupation was taken off the occupations list. That is, if the correct information was known, the visa would not have been granted and in the Tribunal’s view, that is the strongest consideration in favour of the cancellation. The Tribunal also places weight on the fact that the applicant continued to provide untruthful information in response to the NOICC. The applicant provided an elaborate explanation as to why her employment could not be verified and why the taxation records were not available and how the evidence of social insurance payments was obtained. The applicant was fully aware that none of this evidence was true. Again, she deliberately falsified her evidence to the delegate in order to maintain the visa. The applicant’s indifference about her obligations under the Act and the continuous provision of false information in order to maintain the visas support the cancellation of the visa.

9. The Tribunal has formed the view that the circumstances in which the ground for cancellation arises, the fact that the decision to grant the visa was based on incorrect answers and bogus documents, the applicant’s concession that she would not have been entitled to the visa if the correct information was known and the applicant’s subsequent conduct, outweigh other considerations.

10. The Tribunal has decided that there was non-compliance by the applicant in the way described in the Notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

12. The Tribunal has no jurisdiction with respect to the other applicants.

    Kira Raif
    Senior Member