Zong (Migration)

[2022] AATA 1684

Zong (Migration) [2022] AATA 1684 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fanbo Zong

CASE NUMBER:  2111697

HOME AFFAIRS REFERENCE(S):          BCC2021/1445723

MEMBER:Kira Raif

DATE:15 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

Statement made on 15 February 2022 at 12:44pm

CATCHWORDS
MIGRATION – cancellation – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – incorrect information and bogus documents provided in visa application – de facto relationship with primary visa applicant – forensic investigation of telephone bills – different addresses given in other applications and for other official purposes – residential and postal addresses – declaration in sponsorship of father that applicant never married or de facto – discretion to cancel visa – long residence and settled life, businesses and social ties – claims that relationship was genuine but ceased soon after visa granted, and that application prepared by primary visa applicant – documents altered in any case – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, criterion 4020

CASE
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 189 - Skilled - Independent visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in July 1994. He was granted the Skilled visa in September 2016. In July 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and 103 of the Act. The applicant provided his response to the NOIC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 1 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

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

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with ss. 101 and 103 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in May 2016 applicant made an application for the Skilled visa as a member of the family unit of the primary visa applicant, Ms Yifan Su. The applicant stated that he and Ms Su met in early 2013 and commenced a de facto relationship and cohabitation from October 2014. The applicant stated that he had been residing at an address at Rhodes. The applicant also completed a declaration that he had read and understood information provided in the application and that he provided complete and correct information on the form and on any attachments.

10. In support of his claimed relationship with Ms Su the applicant provided a number of documents, including

    -several Vodafone bills purportedly sent to the applicant at the Rhodes address between December 2014 and May 2016,

    -a Residential Tenancy agreement for the Rhodes address for the period from October 2014 to October 2015, naming the applicant and Ms Su as tenants,

    -a statement entitled ‘Zong’s love story’ in which he stated that he and Ms Su started living at the same address from October 2014 when their formal de facto relationship began and it has been in existence for over one and a half years.

11. On 26 September 2016 the applicant and Ms Su were granted the Skilled – Independent visas. Following the visa grant, the Department had undertaken a forensic investigation of the Vodaphone bills, which determined that the residential addresses shown on these documents did not match the addresses officially linked to these documents.

12. The primary decision record also indicates that

    -the applicant’s address was recorded as an address at Rosebury on PRISM in October 2014 and in April 2015,

    -in 2015 the applicant completed an Incoming Passenger Card (IPC) upon entry to Australia and gave his address at Rosebury,

    -in May 2016 the applicant applied for a Student visa and provided in support of that  application a letter from the Commonwealth Bank dated May 2016 sent to him at an address at Waterloo,

    -in August 2016 in support of his application for a Skilled visa, the applicant submitted evidence of a hotel reservation, which stated his address at Rosebury,

    -in May 2017 when sponsoring his father for a Contributory Parent visa, the applicant stated that he was living at an address at Waterloo with a friend,

    -also when sponsoring his father, the applicant stated on the sponsorship form that he was never married or in a de facto relationship.

13. In oral evidence to the Tribunal the applicant stated that he and Ms Su moved in together in October 2014 and lived at the Rhodes address. The applicant states that he had lost his bank card and had applied for replacement but he often did not get the letters at his address, so he did not want to use the same address. He changed the address and used the Rosebury address, which was the address of his friend. After this friend returned to China, he used the address of another friend living at Waterloo. The applicant states that when he applied for a visa for his parents, the question on the form was whether he was married and it was not about his de facto relationships. The applicant states that the forms were completed by his parents and he had only signed the last page. He also states that the skilled visa application was prepared by Ms Su as he was too busy with work, and he does not know what was submitted.

14. The Tribunal considers the applicant’s explanations unconvincing.

15. Firstly, the applicant claims that he did live at Rhodes but used different addresses because he did not get some correspondence. However, the application form (which is readily available on the internet) has two separate questions, one about the residential address and one postal address. Thus, even if the applicant was concerned that he would not receive correspondence from Immigration, he could have provided a different postal address but that was no reason for him to provide a what he now claims to be incorrect residential address.

16. Secondly, even though the applicant claims he did not want to use the Rhodes address because correspondence went missing, the Vodafone bills he submitted with his Skilled visa application referred to his residence at the Rhodes address (i.e. he did not change the address on these Vodafone bills as claimed) and those addresses were found through forensic examination to have been altered. In the Tribunal’s view, that fact that the Vodaphone bills contained the Rhodes address which were found to have been altered does not support the applicant’s explanation that he did in fact live at Rhodes but was using other addresses for fear of missing correspondence.

17. Thirdly, the applicant provided a different address on the IPC. The Tribunal does not accept that he would have done that because he was afraid of missing correspondence at his Rhodes address. Contrary to the applicant’s suggestion, the completion of the IPC had nothing to do with receipt of mail and the Tribunal does not accept the applicant’s explanation that he had misinterpreted the purpose of that form. The applicant’s nomination of a Rosebury address on the IPC offers strong evidence, in the Tribunal’s view, that the applicant was living at the Rosebury address.

18. Fourthly, the applicant had given different addresses in his various dealings with the Department. His nomination of these addresses (at Rosebury and Waterloo) was consistent in his IPC, PRISMS (in relation to a student application), on a hotel receipt and the Parent visa sponsorship. Most of these had nothing to do with the receipt of correspondence. Thus, the IPC has nothing to do with receiving correspondence. PRISMS relates to information in connection with a student visa and, as noted above, most migration application forms distinguish between residential addresses and postal addresses, so there was no reason for the applicant to give a different residential address (as opposed to a postal address) if he was concerned about missing correspondence. The fact that the applicant had consistently given the Rosebury and Waterloo addresses on the IPC, in relation to his Student visa and on a hotel receipt, as well as in the sponsorship of his father, all suggest that the applicant did live at Rosebury and later Waterloo and not at Rhodes.

19. The Tribunal has formed the view that the applicant had fabricated his evidence concerning the reasons for the different addresses and that he has not been truthful in his evidence. The consistent provision of different addresses, coupled with the forensic finding that the Rhodes address on the Vodaphone bills had been altered, offers strong evidence, in the Tribunal’s view, that the applicant never lived at Rhodes and, therefore, never lived with Ms Su (as he claims to have lived with her at Rhodes).

20. The fact that the applicant provided in his Skilled visa application incorrect information about his residential addresses (which were primarily relevant to establishing his relationship with Ms Su) suggests to the Tribunal that the applicant had been untruthful about the existence of that relationship.

21. The Tribunal questioned the applicant about his relationship with Ms Su. The applicant claims the relationship ended in early 2017 (soon after the skilled visas were granted) because they could not have children and ended up having a lot of arguments. It is odd, in the Tribunal’s view, that the couple were able to maintain a good relationship (despite not being able to have a baby) for about two years until the visa grant but ended the relationship within a short time of the visa being granted. The haste with which the claimed relationship broke down after the visa grant supports the Tribunal’s view that the applicant never had a genuine de facto relationship with Ms Su and that the reference to the existence of such a relationship was made only to assist the applicant in gaining the visa.

22. The Tribunal invited the applicant to provide further evidence of his relationship with Ms Su. Following the hearing, the applicant provided a number of bank records which, he claims, evidence cohabitation. It is not apparent from the presented records that they do evidence cohabitation or the sharing of resources. It is not possible from the extracts of the bank statements to determine that they belong to the applicant, that the applicant was living with Ms Su or that they relate to purchases made by the couple. It is of considerable concern to the Tribunal that despite the claimed relationship between the applicant and Ms Su, which he claims lasted over two years, the applicant has not been able to present much evidence of such relationship. That strongly suggests to the Tribunal that there was never a relationship between the applicant and Ms Su and supports the Tribunal’s view, that the claim of existing relationship was made solely for the purpose of the visa.

23. The Tribunal has formed the view that the applicant never had a de facto relationship with Ms Su. The Tribunal is of the view that the applicant claimed to be in such a relationship so as to be included in Ms Su’s visa application as her dependent. They Tribunal is of the view that they had never lived together, had not established a joint household, had not shared their finances, had not represented themselves to others as being in a de facto relationship, did not provide, or rely on each other for emotional support and comfort and did not view their relationship as a long term one. Once the visas were granted, there was no longer any need to claim that the relationship was in existence, hence the applicant’s claim that it ended soon after visa grant in early 2017.

24. The Tribunal has formed the view that the applicant was not the de facto partner of Ms Su. As such, the Tribunal finds that the applicant gave incorrect answers on the application form when he claimed to be in a de facto relationship with Ms Su. 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.

25. The Tribunal further finds that the applicant never lived at the Rhodes address with Ms Su. The forensic investigation referred to in the primary decision indicate that the addresses on the phone bills had been altered and the Tribunal finds that the Vodaphone bills sent to the Rhodes address are bogus documents because they had been altered by a person without authority. As the Tribunal has found that the applicant had not lived with Ms Su at the same address, the Tribunal also finds that the residential lease agreement is a bogus document either because it was altered by a person without authority or because it was issued on the basis of an incorrect statement. The Tribunal finds that the applicant gave or provided bogus documents with his visa application or caused such documents to be given or provided. The Tribunal finds that the applicant did not comply with s. 103 of the Act.

26. The Tribunal acknowledges the applicant’s claim that it was Ms Su who prepared the documents but under the Migration Act, the applicant bears the responsibility for the content of his application.

27. The Tribunal is mindful that even if the applicant’s claims are accepted in their entirety (i.e. that the applicant did have a genuine de facto relationship with Ms Su and they resided together), having regard to the outcome of the forensic examination, the Tribunal finds that the Vodaphone bills are bogus documents as they had been altered by a person without authority and, irrespective of the applicant’s relationship with Ms Su and his residential addresses, on that  basis alone the Tribunal would find that the applicant did not comply with s. 103 of the Act.

    Should the visa be cancelled?

28. 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).

29. 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

30. The Tribunal has formed the view that the correct information is that the applicant never had a de facto relationship with Ms Su and had not lived with her at the same address. The applicant disagrees with that assessment. The Tribunal’s reasoning with respect to these findings are set out above.

    The content of the genuine document (if any)

31. The content of the genuine documents would not be addressed to the applicant and Ms Su at the same address and would not show their cohabitation.

    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

32. The primary decision record indicates that the applicant was granted the Skilled visa as a secondary applicant. That is, he did not seek to meet the primary criteria and the applicant has not presented satisfactory evidence to the Tribunal to indicate that he would have met the primary criteria for visa grant. When seeking the Skilled visa, the applicant only claimed to be a member of the family unit – and in this case, the de facto partner – of the primary visa applicant. There is no suggestion that he met any of the alternative definitions of the term ‘member of the family unit’.

33. The Tribunal finds that the applicant was granted the visa because he was recognised as the de facto partner of the primary visa applicant. The evidence of cohabitation (including the Vodafone bills) was relevant to determining whether the applicant was in a de facto relationship with Ms Su and therefore, his eligibility for the visa. The provision of bogus documents was also relevant to the assessment of PIC 4020. The Tribunal finds that the decision to grant the visa was based, in part, on bogus documents.

    The circumstances in which the non-compliance occurred

34. The applicant’s evidence to the Tribunal is that he gave the documents to his partner Ms Su and was not responsible for their preparation or submission. The applicant suggested that perhaps Ms Su felt the documents did not meet the requirements and decided to alter these. The Tribunal finds that submission unconvincing, given the applicant’s claim that they had been in a relationship for several years and, presumably, shared things with each other. The Tribunal does not accept that in such circumstances (if the applicant’s claims were true), Ms Su would decide to falsify the phone records and would make no mention of it to the applicant. in the Tribunal’s view , a more likely explanation is that the applicant never had a de facto relationship with Ms Su and that both he and Ms Su were aware of what documents were prepared and submitted in support of their claimed relationship.

35. The Tribunal also does not accept that the applicant would not have read the content of the application and that he was unaware of the claims made in the application before its submission. While the Tribunal acknowledges that the applicant was busy with business and other commitments, the Tribunal is also mindful that an application for a permanent residence would have been a very significant step for the applicant and the Tribunal does not accept that he had taken no interest in the application or its preparation or that he had absolutely no involvement in the preparation of documents.

    The present circumstances of the visa holder

1. The applicant told the Tribunal that the relationship ended in 2017 and since that time he has ‘restarted his life’. He had two businesses but due to Covid, his printing business has closed. He is operating a Sichuan Hot Pot restaurant.

2. The applicant states that he came to Australia when he was young. His parents did not look after him and he is now familiar with Australia. He might have a new start if he returns to China but he feels comfortable here. The Tribunal accepts that the applicant has been living in Australia for many years and that he is well settled in Australia. The Tribunal accepts that the applicant has formed business, social and other ties in Australia. The Tribunal accepts that if the cancellation of the visa would result in his departure from Australia, this may result in the severance of those ties and may cause hardship to the applicant.

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

3. 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

4. There are no known instances of non-compliance and the applicant submits he has complied with his legal obligations.

   The time that has elapsed since the non-compliance

5. The application was made in May 2016 and close to six years passed since the non-compliance. The Tribunal acknowledges it is not an insignificant period.

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

6. There are no known breaches of the law. The applicant claims he has complied with various legal requirements and obligations when managing his affairs in Australia.

   Any contribution made by the holder to the community.

7. In his response to the NOICC the applicant refers to the contribution he has made through his entrepreneurial activities. The applicant told the Tribunal that his restaurant employs people and he does not owe any money to anyone and has increased the salaries of his employees. The Tribunal accepts that the applicant contributes to the community through offering job opportunities to others and through his economic contribution.

8. 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.

9. There are no persons whose visa would be subject to the 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.

10. There are no children who would be affected by the cancellation of the applicant’s visa.

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

11. There is no evidence, and the applicant does not claim, that the cancellation of his visa would breach Australia’s non-refoulement obligations. The applicant has no family in Australia and the Tribunal does not consider the cancellation would breach family unity obligations. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

12. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen. Unless the applicant is granted another visa, he may be subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellations and the applicant may be subject to an exclusion period in relation to future visa applications. If the visa is cancelled, the applicant would lose certain entitlements he may have acquired as an Australian permanent resident. There are no provisions in the Act which prevent the applicants from making a valid visa application without the Minister’s intervention although there are restrictions on the types of visas the applicant could apply for onshore. The cancellation of the applicant’s visa would likely affect his parents’ eligibility for the Parent visa and the applicant’s own eligibility for the Australian citizenship.

13. The Tribunal accepts that these are significant consequences which may cause considerable hardship to the applicant.

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

14. The applicant told the Tribunal that the biggest challenge for him is abandoning the life he has built for himself in Australia and the links and associations he has established in Australia. the Tribunal accepts that evidence. The applicant states that if his visa is cancelled, he would learn a serious lesson as he has not checked the content of his application.

15. The applicant states that now is not a good time to sell the business and he would sell at a loss. The applicant presented no evidence to support that assertion, such as business or asset valuations, or evidence of any attempt to sell it or the payment he believes he would be able to receive for the sale. The Tribunal is not prepared to accept the applicant’s claim that he would sell at a loss. The applicant told the Tribunal that due to Covid, the number of customers have reduced and this has affected his business and if he is to sell now, it would affect his future opportunities. The Tribunal is prepared to accept that evidence.

16. The applicant states that his parents supported his business and if he returns to China, he would have to start afresh. Given the length of the applicant’s stay in Australia, the Tribunal accepts that. While the applicant’s skills and experience as a business entrepreneur may be transferable and utilised in China, the Tribunal generally accepts that the applicant could experience significant hardship if he has to depart Australia as a result of his visa being cancelled.

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 101 and s. 103 of the Act and that there are grounds for cancelling his visa.

18. The Tribunal acknowledges that the cancellation of the visa could cause significant hardship to the applicant because the applicant has been residing in Australia for many years, has completed his education here and formed various networks and connections. The Tribunal accepts his evidence that he would have to start afresh if he was to live in China. The Tribunal also accepts that if the applicant was to leave Australia as a result of his visa being cancelled, he might have to dispose of his business (possibly at a loss) and other assets. The cancellation would also have significant repercussions due to the legal consequences, most notably, affecting the applicant’s ability to remain in Australia and seek other visas in the future. Generally, the Tribunal accepts that considerable hardship could be caused if the visa is cancelled. The Tribunal also accepts that the applicant has made a contribution to the community.

19. The Tribunal has formed the view that the cancellation would not breach Australia’s international obligations.

20. Against these considerations, the Tribunal has decided to place weight on the fact that the decision to grant the visa was based on incorrect information. The applicant provided evidence of cohabitation with the primary visa applicant and that evidence contained bogus documents. At least, the bogus documents (as evidence of cohabitation) were relevant in assessing the applicant’s relationship with Ms Su and, at most, if it was determined that the applicant was not a de facto partner of Ms Su, he would not have been entitled to the Skilled visa he had applied for. In the Tribunal’s view, that offers a very strong basis why the visa should be cancelled and outweighs other considerations.

21. The Tribunal also places some weight on the circumstances of non-compliance. The applicant claims he gave all the documents to Ms Su and did not see what was included. The Tribunal does not accept that the applicant’s involvement in the preparation of his application was so minimal. Rather, the Tribunal is of the view that the applicant had deliberately sought to mislead the Department by providing evidence of his relationship with Ms Su that did not exist, in order to obtain the visa. In the Tribunal’s view, these matters also weigh heavily in favour of the cancellation.

22. Overall, the Tribunal finds that matters that weigh in favour of the cancellation outweigh those that are against the cancellation.

23. 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

24. The Tribunal affirms the decision to cancel the applicant’s Subclass 189 -  Skilled - Independent visa.

    Kira Raif
    Senior Member