Zhao (Migration)

[2023] AATA 2253

Zhao (Migration) [2023] AATA 2253 (10 January 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Pengming Zhao

REPRESENTATIVE:  Mr Jia (Jack) Li

CASE NUMBER: 2113362

HOME AFFAIRS REFERENCE(S):      BCC2021/1597851

MEMBER:  Kira Raif

DATE:             10 January 2023

PLACE OF DECISION:    Sydney

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 10 January 2023 at 9:05am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – bogus document – phone bills – altered by a person without authority – consideration of discretion – grant of visa based on incorrect information – knowingly and deliberately provided false information – Australian citizen child – best interest of the child – contribution to the Australian community – significant hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 103, 107, 109

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 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).

1. The applicant is a national of China, born in July 1987. He was granted the Skilled visa in May 2016 and a Resident Return visa (RRV) in August 2021. In August 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. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in September 2021. The applicant seeks review of the delegate’s decision.

1. The applicant appeared before the Tribunal on 13 December 2022 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

2. 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.

3. 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.

4. 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?

5. 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 s. 103 of the Act.

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he made the application for the Skilled visa on 20 February 2016. The application included his claimed partner Ms Jia Bao He. On the application form the applicant stated that Ms He was his spouse / de facto partner and that their relationship began on 16 September 2014.

7. In support of the claimed relationship the applicant provided a number of documents, including

   a.12 Vodaphone bills for the period from May 2014 to March 2016 addressed to him at the Sussex street address,

   b.4 Vodaphone bills for the period from November 2014 to February 2015 addressed to Ms He at the same Sussex street address.

8. The applicant also told the Tribunal in oral evidence that he took some social photographs with Ms He on advice of their agent and he agreed to the agent providing incorrect information regarding his relationship with Ms He.

9. The applicant and Ms He were granted the Skilled visas on 25 May 2016. The primary decision record indicates that following the visa grant, the Department carried out integrity checks in relation to the documents submitted with the Skilled visa application. A forensic examination of the Vodaphone bills showed that the residential addresses on these documents did not match the residential addresses officially linked and registered to these documents.

10. In his responses to the NOICC the applicant outlined the circumstances around the lodgement of his application (which are set out more fully below) and states that he gave only genuine documents to the agent and had not seen the documents that had been submitted with the application. The applicant blames the agent for the submission of fraudulent documents but concedes that he did not check the documents.

11. In oral evidence the applicant agreed that he and Ms He were not on a de facto relationship and he did not live together with her at the Sussex street address. The applicant has expressed his remorse for his ‘mistake’, which he claims was arranged by his then migration agent.

12. Having regard to the information in the primary decision record concerning the forensic investigation of the phone bills, and the applicant’s evidence that he never lived with Ms He, the Tribunal finds that the phone bills are bogus documents within the meaning of s. 5(1)(b) because they had been altered by a person without authority. The Tribunal finds that the applicant gave, presented or provided to an officer or the Minister, bogus documents or caused such documents to be so given, presented or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

13. The Tribunal finds that there was non-compliance with s. 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

14. 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).

15. 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. They are:

    The correct information

16. The correct information is that  the applicant did not have a de facto relationship (or any relationship) with Ms He and did not live with her at the same address. The applicant concedes that he never had a relationship with Ms He and they never lived together.

    The content of the genuine document (if any)

17. The genuine documents would not show the applicant and Ms He living at the same address. The applicant concedes that he had not lived with Ms He.

    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

20.  The applicant claims that he met the visa requirements as he met the visa requirements by meeting the passmark and he did not rely on the secondary applicant to gain additional points. However, the points score is only one of the requirements for the grant of the Skilled visa. The applicant would have been required to meet PIC 4020 (and he admits to providing bogus documents with the application). The Tribunal has formed the view that the decision to grant the visa was based, in part, on bogus documents.

The circumstances in which the non-compliance occurred

1. In his response to the NOICC the applicant states that he achieved the points required for the visa and was eligible to apply for the visa. He states that at the time he was under financial pressure as he had made a deposit on a property and was worried that he did not have the funds to make the payment. At the time he met a man who told him he was a migration agent and offered to prepare the application for him. The applicant states that he was reluctant but the agent kept approaching and persuading him and told him that the worst that could happen is that his application would be refused. The applicant states that he gave genuine documents to the agent and had never seen the bogus documents. The applicant refers to his lack of knowledge and ignorance, stating that he the did not check whether the agent was ‘real’ and he had not signed any contract with the agent. The applicant states that Ms He later approached him to provide bogus documents in support of her citizenship application but he declined. The applicant expressed ‘deep remorse’ for his action.

2. The Tribunal finds the applicant’s evidence problematic. The applicant’s evidence suggests that he knew from the beginning that his application would contain incorrect information about his relationship (he repeatedly refers to his reluctance to proceed and to being persuaded by the agent). He knew Me He was included in the application as his partner and that he did not have a relationship with Ms He. It is not enough to state that the agent was too persuasive or approached him too many times. If the applicant did not wish to proceed with the fraud, he did not have to and could have told the agent that he had no interest in doing so. Instead, the applicant allowed himself to be persuaded to include false information in his visa application because, it appears, he was under financial pressure and he sought to gain a financial benefit from that fraud.

3. The applicant also states that he was too ignorant to check what the agent had done and that he had only given genuine documents to the agent. Whether or not that was the case, the applicant admits that he was aware that his application included false information and he gave the ‘go ahead’ to the agent. Significantly, the applicant’s evidence to the Tribunal is that he also took some social photographs with Ms He to evidence their relationship. That is, the applicant had taken positive steps to create false evidence in support of the false claimed made in his application. In these circumstances, it is of no consequence, in the Tribunal’s view, whether the applicant was aware of the bogus phone bills, whether he had personal involvement in the preparation of bogus documents, or whether he simply allowed the agent to prepare these on his behalf.

4. Neither does the Tribunal consider it significant that the applicant did not check the agent’s registration or that no contact was signed. The applicant’s evidence is that the applicant had authorised another person (whether a registered agent or not) to prepare an application on his behalf and allowed that application to contain false information. The applicant’s culpability for the fraud cannot be excused because he had mistakenly believed the agent to be a registered one.

5. The Tribunal finds that the applicant had knowingly and deliberately provided false information in his visa application concerning his relationship with Ms He and that he was aware of the false claims and bogus documents (at least in the form of photographs) could be provided in support of that false claim.

   The present circumstances of the visa holder

6. In his response to the NOICC the applicant refers to his study in Australia and his past employment. He states that he has been in a property service business since 2014 and he provided information about his companies, which offer employment to several staff. The applicant stated that he employed 30 local staff over the years. The Tribunal accepts that  evidence.

7. The applicant refers to his settlement in Australia and his involvement in the Australian community. He provided to the delegate and the Tribunal a number of character references and the Tribunal accepts that the applicant has established social links in Australia and also that those who provided references for him believe the applicant to be a good person. The applicant also presented evidence of his property ownership in Australia and the Tribunal accepts that evidence.

8. The applicant refers to his ownership of businesses in Australia and he told the Tribunal he employs more than 10 staff (he states ‘most’ are permanent residents or citizens) and he claims that over the five years he employed over 50 staff. The applicant states that if he is to close the business, his staff would be financially impacted. The Tribunal is prepared to accept that evidence.

9. The applicant refers to his loan of $4,000,000 stating that his assets are lower. If his visa is cancelled, he would have to sell his assets which do not cover the size of the loan and if he sells quickly, he may sell under value. The Tribunal is mindful that the applicant’s claims are entirely unsupported by probative evidence. There is no evidence before the Tribunal to support his claim that the applicant would have to sell under value and that he would not be able to cover the value of the loan. The Tribunal does not accept the applicant’s claims that if he was to sell his assets, there would be damage to any financial institution.

10. The applicant refers to having an Australian citizen child. He states that his had divorced with his partner and the child is in his care. The applicant provided to the Tribunal childcare report for his daughter and evidence of her school enrolment in 2023. (The child’s circumstances are addressed more fully below). The Tribunal accepts that the applicant is the primary caregiver for his daughter although the Tribunal is of the view that the applicant  will be able to continue in that role irrespective of his place of residence.  

11. The applicant also provided to the Tribunal medical reports relating to himself. The Tribunal accepts the evidence in these reports.

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

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

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

13. The applicant stated in the application form that he was in a de facto relationship with the secondary applicant. He concedes that the relationship did not exist. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

    The time that has elapsed since the non-compliance

14. The application was made in February 2016 and close to seven years passed since the non-compliance.

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

15. There are no known breaches of the law.

    Any contribution made by the holder to the community.

16. The applicant refers to providing employment opportunities to the Australian staff. He also provided evidence to the Tribunal of making a number of donations. The Tribunal accepts that the applicant contributes to the community.

17. 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.

18. As the applicant has been granted an RRV since his Skilled visa was granted, there are no dependents on the RRV. There are thus 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.

39.  The applicant has a child Evelyn and he states that he is a single father, as his ex-wife left them and the child has no contact with her mother. (This contradicts the information in a legal advice, a copy of which the applicant provided to the Tribunal, which refers to contact between the child and her mother.) The applicant told the Tribunal that the child’s mother left them when the child was 4 months old and there has been no contact since that time. The applicant states that he is the only caregiver and has been raising his daughter with the help of his mother.

40.  The applicant states that his daughter is doing well at preschool. He refers to his daughter being ‘poor’ due to not having a mother and he does not want the situation worse for her. The applicant  states that his daughter cannot the Australian passport to depart Australia without the consent of the child’s mother and because they cannot find the mother, it would be difficult to get a passport or court approval for the child to leave Australia permanently. The applicant submits that he would experience difficulties at the airport taking the child out of the country and the court is unlikely to grant the order enabling the child to reside overseas without the consent of both parents. The applicant  submits (by reference to advice from Legal Aid) that the child will not be able to get the passport and leave Australia permanently without the consent of the child’s mother and the court is unlikely to grant the order in circumstances where the child is to be taken out from the Australian jurisdiction permanently. The applicant states that he does not have a formal custody of the child because there was no need for it.

41.  Following the hearing, the applicant provided to the Tribunal with legal advice concerning his daughter’s ability to relocate to China. One advice indicates that  the child should not be taken overseas without a consent of both parents or a court order which may not be granted to enable the child to live permanently or long-term in another country as it would not be considered in the child’s best interests. The advice indicates that  it is unlikely (or impossible) for the court to grant an order to permit the Australian citizen child to relocate to another country permanently. Another advice also indicates that the prospect of the court allowing the child’s removal from Australia is ‘not high’.

42.  It is not entirely clear from these communications that those who provided advice to the applicant were informed that the mother of the child lives in China, rather than Australia, so that the removal of the child is likely to increase, rather than remove, the possibility of closer contact between the child and her mother. Nevertheless, the Tribunal accepts that the applicant may face significant difficulties if he is to lawfully remove the child from Australia for permanent or long term residence in China. 

43.  The Tribunal acknowledges that if the child is not able to leave Australia and if the applicant’s visa remains cancelled which may necessitate his departure from Australia, it may lead to the separation of the applicant from his daughter. The Tribunal is mindful that due to her young age, the child cannot remain in Australia on her own without parental supervision. The Tribunal has formed the view that it is in the best interests of the child if the applicant’s visa is not cancelled, enabling the applicant  - who is the sole caregiver to the child – to continue in that role.

44.  The applicant told the Tribunal that due to the hukou system, he will have to return to his home town, which is a very poor area and may not have any international school, so the child may not have access to education and proper Medicare. The applicant states that he would not be able to provide the same opportunities as the child would have in Australia. The Tribunal accepts that this may be the case.

45.  The Tribunal has also had regard to the DFAT report on China, published in October 2019, which indicates 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 applicant’s child is an Australian citizens, she is unlikely to be able to acquire Chinese citizenship and that may mean that she will 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 and the Tribunal acknowledges the applicant’s evidence that he may not have the means to support the child in China. The Tribunal also considers it likely that the child will require residence permits to remain in China on a long term basis.

46.  The Tribunal accepts that the residence of the Australian citizen child in China, where she cannot acquire 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 child. The Tribunal accepts that as an Australian citizen, the applicant’s daughter 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 Chinese citizenship is acquired. The Tribunal also acknowledges the applicant’s evidence that he comes from a poor area in China where there would be few opportunities for his daughter. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant’s child would be adversely affected by the cancellation of the applicant’s visa. That is, it is in the best interests of the applicant’s daughter that the applicant’s is not cancelled. 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.

1. There is no evidence, and the applicant  does not claim, that his removal from Australia may lead to a breach of Australia’s non-refoulement obligations.

   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.

2. 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 he would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas he could validly apply for due to the operation of s 48. The applicant may be subject to an exclusion period if he was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements he 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).

3. The applicant states that he came to Australia at the age of 22 and only went to China to visit his relatives. He has no financial resources in China and no social connections and he claims he would experience hardship if his visa is cancelled. The Tribunal accepts that the applicant has established his life in Australia but sees no obvious reason why he could not re-establish his life in China, even if he has not lived in that country for many years and has limited connections. The applicant states that he has no experience in China and all his work experience, business skills were developed in Australia and are not suitable in China. It is not clear to the Tribunal why that would be the case but generally  the Tribunal accepts that hardship would be caused to the applicant if he was required to leave Australia as a result of his visa being cancelled.

4. The applicant states that if he is to leave Australia, he will not be able to financially support his elderly parents and his daughter. He states that his parents had done everything to support his study and stay in Australia and he wants to repay them by bringing them to Australia. He had sponsored his parents for Parent visas and they have been waiting for visas for eight years and his parents would be disappointed if their visas are cancelled. The Tribunal accepts that if the applicant is not a holder of the Australian visa, he would not be able to sponsor his parents for the visa.

5. The applicant states that he is a single father to his daughter who has no communication with her mother since May 2019 and he is raising the child on his own with his mother’s help. The applicant states that his daughter would suffer ‘tremendous hardship’ and unforeseen issues if she returns to China. The applicant stated that he is the only ‘supporter’ of his daughter who would not have the funds, fair education and health if she is to live in China and she would not be able to enrol in a school as an Australian citizen.  These issues are addressed more fully above.

6. The applicant submits that it is unsafe to travel in the pandemic and the lockdowns in China. The Tribunal does not consider this to be a significant impediment.

7. The applicant states that if his visa is cancelled, he would have to close his business and his staff would lose their jobs, making it difficult for them to find other employment. It is not clear to the Tribunal why other staff would find it difficult to find other employment but the Tribunal is prepared to accept that some hardship would be caused to the applicant’s employees if he is to close the business.

8. The applicant  told the Tribunal that he has completed his education and gained work experience in Australia and he would find it difficult to find employment in China. He may have to do labour work and will not be able to support his child and his family. The Tribunal is prepared to accept that if the cancellation of the visa is to lead to the applicant  having to leave Australia, he may experience significant hardship.

9. The applicant repeatedly told the Tribunal that he is remorseful for what he has done (and he states that when Ms He approached him to support her citizenship application, he refused). The Tribunal acknowledges the applicant’s expression of remorse but is mindful that the applicant did not take any action to rectify his mistakes prior to the NOICC being issued. The Tribunal is of the view that the applicant’s expression of remorse is opportunistic because he believes it would assist him with the visa process.

56.  The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant gave bogus documents with his Skilled visa application and that he had not complied with s. 103. The Tribunal has formed the view that there are grounds for cancelling his visa.

57.  The Tribunal has formed the view that there are very strong  grounds why the visa should be cancelled. There was another instances of non-compliance. The applicant did not comply with s. 101  because he  claimed to be in a relationship with the secondary applicant  which did not exist. The Tribunal places significant weight on the fact that the applicant  was aware of the fraud and had knowingly and willingly engaged in it for financial gain. The applicant’s evidence is that he was aware the application included Ms He as his de facto partner and that the relationship did not exist. Significantly, the applicant took positive steps to falsify evidence of his relationship with Ms He by taking photographs with her. It cannot be said that the applicant was ignorant of the fraud or that he simply failed to check the application prepared by another person and was negligent in doing so. In this case, the applicant  was actively involved in the preparation of the false materials and was well aware of the information contained in the application. He chose to engage in that fraud because he received a financial benefit for it. The Tribunal is of the view that the circumstances in which the non-compliance occurred offer the strongest reason why the visa should be cancelled.

58.  Nevertheless, in the particular circumstances of this case, the Tribunal has decided to give greater weight to other considerations, most significantly the best interests of the applicant’s child. The Tribunal has formed the view that it is in the best interests of the child if the visa is not cancelled. This is not only because as an Australian citizen, the child will have very limited access to publicly funded services in China and will have limited residence rights in China. These are significant factors. An important (and perhaps decisive) factor in this case is that the child may experience significant difficulties in obtaining the Australian passport to depart Australia if her mother does not give consent and if the child is not able to leave Australia while the applicant is required to as a result of his visa being cancelled, the child  may be separated from her father, who is the sole caregiver. These circumstances offer a very strong reason why the visa should not be cancelled.

59.  The Tribunal also places some weight on the fact that the applicant is making a meaningful contribution to the community through his businesses and providing employment opportunities to Australian staff and other activities. The Tribunal accepts that significant hardship could be caused to the applicant  if his visa is cancelled, given the extent of his settlement in Australia and that his child and parents would also be affected if his visa is cancelled. All these factors weigh against the cancellation.

60.  In the circumstances of this case, the Tribunal has decided to give greater weight to factors that weigh against the cancellation.

Conclusion

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. Further, 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 (155) (Five Year Resident Return) visa.

   Kira Raif
   Senior Member