Zhao (Migration) - [2025] ARTA 417

ZHAO (MIGRATION) [2025] ARTA 417 (17 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Xiaobo Zhao
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2442315

Tribunal:Kira Raif
Place:Sydney
Date: 17 February 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 17 February 2025 at 12:23pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – bogus documents – fraudulent de facto relationship – allegation against previous migration agent – primary care of elderly parents – employment – insignificant effect on visa eligibility – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 98, 100-105, 107-109, 140
Migration Regulations 1994, r 2.41
CASES
Guo v Minister for Immigration [2018] FCCA 1173
IZFDE v MIAC [2007] HCA 35
MIAC v Khadgi (2010) 190 FCR 248
Salama v MIBP [2017] FCA 2
STATEMENT OF REASONS
Application for review

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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of China, born in April 1985. She was previously granted a Skilled visa and in November 2021 she was granted a Resident Return Visa (RRV). In September 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of her visa as the delegate formed the view that the applicant did not comply with ss. 101 and 103 of the Act with respect to the earlier held Skilled visa. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 17 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from her brother, Mr Ruipeng Zhao. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in March 2017 the applicant made an application for the Skilled (Independent) visa and included Mr Di Fan as a dependent. In her application for the Skilled visa, the applicant claimed to be in a de facto relationship with Mr Di Fan from January 2016 and she provided Mr Fan’s personal details. The applicant claimed that she and Mr Fan were residing together at a North Lambton address. In support of these claims, the applicant included with her application a number of mobile phone bills addressed to her and Mr Fan at the same address, as well as bank statements issued to Mr Fan at the same address. The applicant also signed a declaration that she had read and understood the information provided to her in the application and that the information was complete and correct.
The applicant and Mr Fan were granted the Skilled visas on 19 September 2017. The primary decision record states that following the grant of the visa, the Department became aware of adverse information. It is stated that a forensic examination undertaken by the Department’s Forensic Document Examiner of the phone bills and bank statements which the applicant had provided with her application found that the residential addresses on these documents did not match the residential addresses officially linked and registered to these documents. The Document Examiner found evidence of intentional alteration to the generation of the documents assessed, suggesting these were fraudulently altered. The delegate found these documents were bogus documents.
The primary decision record indicates that in August 2021 the applicant was sent a NOICC in relation to her Skilled visa on the basis that the applicant may not have complied with s. 103 of the Act. In response to that NOICC, the applicant stated that she gave her genuine documents to the migration agent and that the phone bills were addressed to her address at Cheltenham and it was the agent who changed the addresses on the documents. The applicant stated that she had no knowledge of Di Fan and no knowledge of the altered documents and the agent made the alterations without her knowledge or consent.
The delegate found that the applicant completed the application form in a way that incorrect answers were provided, in breach of s. 101, by claiming to be in a de facto relationship with Di Fan. The delegate also found that the applicant did not comply with s. 103 by submitting bogus documents.
In September 2024 the applicant was issued with the NOICC in relation to the Resident Return visa. In her response, the applicant appears to concede that some documents were bogus documents, but states that her previous migration agent engaged in fraud without her knowledge or consent. (The delegate notes that the application form does not indicate a migration agent was used.) The applicant did not agree that she provided incorrect answers on the application form. In oral evidence to the Tribunal the applicant also stated that she gave truthful information to the agent and it was the agent who submitted false information. The applicant told the Tribunal that the agent did not show her the application form before submitting it but she also concedes that she did not ask the agent to show her the papers before her application was submitted.
The Tribunal finds that the applicant claimed to be in a de facto relationship with Mr Fan when making her application for the Skilled visa. She submits in her response to the NOICC, by reference to the reasoning in Salama v MIBP [2017] FCA 2, that question on the application form must be correctly interpreted and read in its context. However, in the Tribunal’s view, that case is distinguishable. In Salama, the visa holder was simultaneously divorced from one partner and in a de facto relationship with another and in those circumstances, when he indicated only one marital status on the application form, the court found such answer could not be incorrect. That is, an answer may not be incorrect if there is more than one possible correct answer and one such answer is provided. This is not the case here where the applicant had expressly indicated on the application form that she was in a de facto relationship with Mr Fan, such relationship commencing in January 2016, and identified Mr Fan as her de facto partner. The applicant’s answers on the form made a clear and unequivocal statement about her ongoing de facto relationship with Mr Fan and provided details of such a relationship. The applicant’s subsequent evidence is that she was not familiar with Mr Fan and was not in a relationship with him. This is not the case where more than one correct answer was available and the applicant gave one of these on the application form. In this case, the applicant gave an incorrect answer which could not, under any circumstances, be considered to be correct as she was not in a de facto relationship with the secondary applicant.
The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided.
The applicant claims that the information was supplied by her previous agent without her knowledge or consent and she provided to the Tribunal a number of bank statements and phone records. The Tribunal considers that submission problematic. Putting aside the fact that, according to the delegate, no agent was identified in the application, the Tribunal is of the view that the applicant had the responsibility of checking the application form to ensure the information in it was compete and correct. The applicant’s evidence to the Tribunal is that she did not ask the agent to show her the forms and took no steps to check these. The Tribunal is unpersuaded by the applicant’s claim that she had no experience with visa applications and was unfamiliar with the process. The checking of the documents in any context, not just in relation to a visa application, is something that may be done irrespective of one’s level of knowledge or experience.
Significantly, as discussed below, the Tribunal has formed the view that the applicant was aware of the fraud and was indifferent to it. The applicant’s evidence is that she had voluntarily agreed to pretend to be a relationship with someone, which she knew was a fake relationship, in order to ‘sponsor’ another person in return for free immigration assistance. The applicant’s willingness to engage in fraud raises serious concerns about her character and brings into question the applicant’s claim that she was unaware of the fraud.
The applicant told the Tribunal that she thought the fake relationship would be presented after her Skilled visa was granted and not with her Skilled visa. The Tribunal does not accept that evidence because the applicant told the Tribunal she was taking photographs with Mr Fan (for the purpose of evidencing a relationship) in March or April 2017, shortly after the Skilled visa application was made. Although the applicant claims that she thought the agent was simply taking photos for the future, the fact that the photographs were being taken at the same time, or shortly after the Skilled visa application was made, should have put the applicant on notice that there these may be used in her Skilled visa.
The Tribunal has formed the view that the applicant was aware of the possibility of fraud and had consented to it, or at least was indifferent to it. The Tribunal has formed the view that the applicant gave express or implied consent for it to occur.
The Tribunal is also mindful that s. 98 provides that the applicant is taken to have completed the application form even it was completed by another person while s. 100 provides that an answer is incorrect even though the person who gave or provided the answer, or caused it to be given or provided, did not know it was incorrect.
The Tribunal finds that the applicant completed the application form in relation to the Skilled visa in a way that incorrect answers were given or provided when she claimed to be in a de facto relationship with Mr Fan. The Tribunal finds that the applicant had not complied with s. 101(b) of the Act.
The Tribunal further finds that the phone bills and the bank statements, which were submitted with the Skilled visa application as evidence of the applicant’s relationship with Mr Chen, were bogus documents because the Department’s document examiner determined that the addresses on these documents were altered and because in her response to the NOICC the applicant admits that she was living elsewhere. The Tribunal finds these are bogus documents within the meaning of s. 5(1)(b) of the Act. The Tribunal finds that the applicant gave, presented, produced or provided, to an officer, a bogus document or caused such document to be so given, presented, produced or provided. The Tribunal finds that the applicant had not complied with s. 103 of the Act.
For these reasons, the Tribunal finds that there was non-compliance with ss. 101 and 103 by the applicant in the way described in the s 107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations.
The correct information
The correct information is that the applicant was not in a de facto relationship with Mr Fan and was not living with Mr Fan at the same address.
The content of the genuine document (if any)
The genuine documents would not indicate that the applicant and Mr Fan were residing at the same address.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
In Guo v Minister for Immigration [2018] FCCA 1173 at [35] the court held that what is required is consideration of the actual decision made to grant the visa rather than to engage in speculation of what might have happened if there were correct information.
The delegate states that the applicant made claims for the purpose of points allocation. However, it is not suggested that the applicant relied on Mr Fan to claim additional points or that the inclusion of Mr Fan in her application had benefitted the applicant in any way.
The delegate determined that the applicant met PIC 4020 because the delegate was unaware that the applicant provided bogus documents and information that was false or misleading in a material particular. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and bogus documents.
The circumstances in which the non-compliance occurred
In her submission to the delegate, the applicant claims she was unaware of the provision of incorrect answers and bogus documents as this was done by her then migration agent without her knowledge or consent. The applicant states that she did not have much knowledge about immigration law and procedure.
In her submission to the Tribunal the applicant also claims she had limited knowledge of her Skilled visa and ‘no idea’ of what documents were provided to the Department and of the incorrect answers / bogus documents. The applicant states that in her EOI, submitted with the help of an agent, she declared being single. The applicant states that she was then introduced to another agent who offered a free service in return for ‘helping’ another person in the future and the applicant agreed but had no idea of what that help might involve.
The applicant states that she provided the requested documents to the agent and also took some pictures with a stranger under the instructions of the ‘fake agent’. The applicant states that she had no idea of the details on her form or of the documents submitted with her application and it was only upon receiving the NOICC in 2021 that she became aware the agent providing fraudulent documents without her knowledge.
The applicant submits that a document examiner identified the signature on her Form 80 as a forgery and she has discovered that the fake agent did not disclose himself as an agent on the application form and provided a fake email address. The applicant claims, by reference to IZFDE v MIAC [2007] HCA 35 that she is the victim of visa fraud and had no knowledge of fraud until the cancellation process. The applicant provided a number of documents to support these claims.
The applicant told the Tribunal that the agent asked her to sponsor another person once her visa was granted and told her there was no risk to her. The agent asked her to “cooperate” and take some photographs with that person. The applicant states that in her view, this was not relevant to her Skilled visa application as the ‘sponsorship was to happen after the visa grant. The applicant concedes that she understood this to involve sponsoring another person for a Partner visa when no such relationship existed.
For the reasons set out elsewhere, the Tribunal does not accept that the applicant was an innocent victim of fraud. Her evidence to the Tribunal is that she knew she would be ‘sponsoring’ someone who claimed to be her partner when there was no relationship between them. The applicant not only consented to that fraud taking place but took positive steps to perpetrate the fraud by taking photographs with that person.
The Tribunal has formed the view that the fraud was committed with the applicant’s knowledge and permission (express or implied), even if she did not have the precise knowledge of what was being done by the agent. The applicant concedes that she had agreed to engage in fraud and her willingness to engage in such fraud raises concerns about the applicant’s claimed lack of knowledge in relation to the Skilled visa application.
The present circumstances of the visa holder
The applicant submits that her father and step-mother have been residing in Australia for a number of years and her brother is an Australian citizen. The applicant states that her entire family have lived together until 2017 and they share a strong bond. The applicant states that she does not have close family overseas and if she was required to leave Australia, she would be the only family member excluded from residing in Australia and would be separated from her family.
The applicant provided a number of documents in her response to the NOICC and to the Tribunal. These include a number of medical records relating to her father and step-mother, stating that her parents rely on her due to their medical conditions as they live in the same household. The applicant told the Tribunal that they have been living together since she was young and her parents re reliant on her emotionally, physically and practically.
The applicant submits that her father has a number of health issues and states that due to her health condition her step-mother cannot manage household tasks independently. The applicant states that she and her brother bear the responsibility for caring for their parents but her brother has his own family commitments and it is the applicant who has taken on the primary responsibility for caring for her parents. The applicant states hast if her visa is cancelled, the family would face significant hardship in managing the care of elderly parents and young children.
The applicant states that if she has to leave Australia, the responsibility to care for their parents would fall on her brother and it would be very hard on him, given his other responsibilities. The applicant’s brother, who gave oral evidence to the Tribunal, also spoke about the support that the applicant provides to their parents and his employment and family commitments which would prevent him from being able to support the parents.

The applicant states that she has been living in Australia for about thirteen years, has studied and learned here and her entire family live in Australia. The applicant refers to her own employment and provided evidence of her employment. She told the Tribunal that she has stopped employment recently due to her carer responsibilities and her own health issues.
The applicant refers to having purchased a property in 2015. She states that her social and employment and family ties are in Australia.
The applicant states that she provides emotional support to her nephew, particularly since his parents divorced, and they have been living together since her arrival in Australia. She states that she acts as a ‘bridge’ between the child’s mother and the rest of the family and brings the family together.
The applicant provided a number of character references. The Tribunal accepts that those who provided references believe her to be of good character.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The application for the Skilled visa was made in March 2017 and close to eight years passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant provided evidence of having contributed through a community organisation. She claims to be actively participating in community activities and provided evidence of her donations to a number of organisations. The applicant told the Tribunal that she helps those in need and treats people nicely.
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.
There are no persons whose visa would be subject to consequential cancellation.
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.
The applicant claims that she lives with her nephew. In her submission the applicant states that she has a close relationship with her nephew, aged 15 as the applicant had provided him with emotional support in the past, particularly when his parents were getting divorced. The applicant presented a video from the nephew referring to the help and support provided by her and pleading that her visa should not be cancelled.
The Tribunal is prepared to accept that it is in the best interests of this child to maintain a relationship with the applicant. The Tribunal is not convinced such a relationship can only be maintained with the physical proximity between the applicant and the child, however the Tribunal accepts that the nature of any relationship that does not involve the applicant and the child living in the same country would not be the same.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
There is no evidence, and the applicant does not claim, that Australia’s protection obligations arise in this case.
As for the principles of family unity, the Tribunal acknowledges that the applicant’s immediate family reside in Australia. However, the Tribunal notes that the applicant will be eligible to seek other visas in the future to reunite with her family.
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.
If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion she would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas she could validly apply for due to the operation of s. 48. The applicant may be subject to an exclusion period if she was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements she had acquired as a permanent resident of Australia.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
Many of the applicant’s claims are addressed above.
The applicant states that after completing her studies in China she travelled to Australia where she studied and worked in professional fields. She recently reduced her work commitments to care for her parents and intends to return to her career. The applicant states that most of her education and professional experience occurred in Australia and it would be ‘challenging’ for her to secure employment in China, particularly given her age and lack of local experience. Her progress in the Australian financial industry would be lost.
The applicant states that it would be hard for her to find a job in China, given her age and lack of local experience. The Tribunal is mindful that the applicant has not presented any evidence of what employment may be available to her in China, even if it is not in the same field as what she had done in Australia. The applicant has not presented any evidence of having sought employment, and of having been unable to obtain it. The Tribunal is not prepared to accept the applicant’s claim that she would be unable to find gainful employment in China, even if the applicant does experience some difficulties, at least initially, in securing such employment.
The applicant refers to her own health and a recent diagnosis and treatment. The applicant states that if her visa is cancelled and if she was to leave Australia, she may not have access to proper treatment and her condition could worsen and in oral evidence the applicant stated that her treatment plan is in Australia and it would be hard to find an appropriate doctor in China. While the Tribunal accepts the applicant’s claim and the medical evidence she presented in relation to her health, there is no probative evidence to support the applicants’ claim that she would not have access to proper treatment in China. The applicant submits that she does not have health insurance in China and getting medical help may cause her financial hardship. Again, there is no probative evidence to support this claim and there is no evidence as to whether the applicant is eligible to apply for health insurance upon return to China.
The Tribunal accepts that the applicant acts as a main caregiver to her parents. The Tribunal accepts that some hardship would be caused to the applicant, and considerable hardship would be caused to the applicant’s family, if the applicant was to depart Australia as a result of her visa being cancelled.
The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given or provided and that she included bogus documents with her Skilled visa application. The Tribunal has determined that there are grounds for cancelling the visa.
In considering whether to cancel the visa, the Tribunal gives most significant weight to the following considerations.
The applicant is well settled in Australia. She has been living in this country for a number of years and has developed strong family, employment, economic, social and other ties. The applicant has contributed positively to the community. The Tribunal also accepts that considerable hardship may be caused to the applicant and her family if her visa is cancelled.
The Tribunal places significant weight on the fact that the applicant would have been entitled to the grant of the visa irrespective of the inclusion of her de facto partner. That is, it appears that “the partner” was included in the application for his benefit, rather than the benefit of the applicant.
These considerations weigh heavily against the cancellation.
Other considerations, such as Australia’s international obligations, past compliance with visa conditions and the applicant’s interactions with the Department, are neutral or weigh slightly against the cancellation.
The Tribunal places significant weight on the circumstances in which the non-compliance occurred. The applicant claims she had no knowledge of the false claims and bogus documents which were organised by her then agent. The Tribunal is prepared to accept that het applicant had not personally been involved in the preparation of the bogus documents. However, that does not absolve the applicant from the responsibility for her visa application. Firstly, the applicant had the responsibility of checking the content of her application and her evidence is that she did not do that and took no steps to familiarise herself with the application documents. The application clearly had false information by referring to her non-existing de facto partner and if the applicant did read the application form, she would have been well cognisant of the falsity of these claims.
Secondly, the Tribunal has formed the view that the applicant was well aware of the fraud and had authorised it or, at best, was indifferent to it. This is because on the applicant’s own evidence, the agent informed her that he would provide free service in return for pretending to be in a relationship with another person and the applicant also states that she had taken photos with a stranger on the agent’s instructions, in order to prepare evidence of a non-existent relationship. It is irrelevant, in the Tribunal’s view, that the applicant did not think about whether the fraud would be committed in support of her Skilled visa or another visa application in the future. The applicant’s willingness to engage in such fraud detracts from the veracity of her claims that she was unaware of the fraud.
The Tribunal is of the view that the fact that the applicant was aware that the agent was providing free service for the Skilled visa in return for her ‘helping someone’, together with the fact that she was taking photos with another person to evidence a relationship at the time she was applying for the Skilled visa, would have put the applicant on notice that some form of fraud was being committed in her Skilled visa application. The Tribunal is of the view that the applicant was either aware of the fraud, or showed wilful indifference to the fraud being committed by her agent. Thus, the Tribunal finds that the applicant was implicit in the fraud and had, either expressly or by her inaction and indifference, authorised the agent to commit that fraud. These factors weigh very strongly in favour of the cancellation.
In balancing the discretionary consideration, the Tribunal has decided to give the greatest weight to the hardship that would be caused to the applicant and her family if the visa is cancelled. As noted above, the Tribunal accepts the applicant’s evidence that she is supports her parents, both of whom have health issues, with activities of daily living and the level of such support will not be available if the applicant was to leave Australia. The Tribunal also notes the length of the applicant’s residence in Australia and the extent of her settlement in this country, as well as the strong ties she has formed. The Tribunal places weight on the fact that if the applicant did not provide the bogus documents and incorrect answers of the application form, she is likely to have been eligible to be granted the Skilled visa and that the provision of these documents did not result in the grant of the visa to which the applicant was not otherwise entitled. The Tribunal has also given considerable weight to the best interests of the applicant’s nephew, who is a minor child.
The Tribunal finds that considerations that are against the cancellation outweigh those that favour the cancellation.
Conclusion
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Date(s) of hearing 17 February 2025
Representative for the Applicant: Mr Yuwen Huang