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

1. 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.
2. As noted above, the delegate found that the applicant did not undertake the IELTS test to which she referred in her visa application and that the IELTS TRF was a bogus document. In her evidence to the first Tribunal the applicant claimed that she was unable to achieve the required score in the past tests and she conceded that she had provided false information regarding the IELTS test and in oral evidence to the present Tribunal the applicant confirmed that she found someone online to sit the test for her. In her written submission to the Tribunal dated 17 October 2025 the applicant also concedes that there are grounds for cancelling the visa.
3. Having regard to the applicant's evidence, as well as the results of the facial comparison report to which the delegate referred, the Tribunal finds that it was another person rather than the applicant undertaking the test. The Tribunal finds that the TRF that was submitted with the application was a bogus document because it purports to have been, but was not issued with respect to the applicant. The Tribunal finds that the applicant has not complied with s. 103 of the Act. The Tribunal further finds that the applicant did not achieve the Proficient English in the test in March 2015, as stated on the application form. 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.
4. 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.

1. 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).
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 Migration Regulations 1994 (Cth) as follows:

1. The correct information is that the applicant did not undertake the IELTS test to which she had referred in her visa application and that test did not evidence her Proficient level of English.

1. The content of the genuine document would not show that the applicant had undertaken the IELTS test on the specified date and that she achieved the Proficient level of English.

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

1. Clause 189.223 relevantly requires the applicant to have, at the time of application, competent English. That is, the applicant would not have been able to meet the visa criteria without evidence of her language proficiency.
2. The applicant told the Tribunal she had finished her qualifications and if she practised more, she would have been able to pass the test but she was too impatient. The Tribunal acknowledges that evidence but it is not in dispute that the applicant did not complete the specified English test and could not evidence her English proficiency at the time the application was made. The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information and the bogus document.

The circumstances in which the non-compliance occurred

1. The applicant's evidence is that she had undertaken multiple IELTS tests in the past but was not able to achieve the required score of at least 6 in each test component. The applicant told the Tribunal that she was young at the time and under pressure to get the visa. She found someone online who said they could help with the test.

1. In her various submissions to the Tribunal the applicant refers to the length of her residence in Australia and her settlement in Australia. The applicant refers to her and her partner's qualifications and the Tribunal accepts that the applicant has completed several courses in Australia since 2009. The Tribunal accepts that the applicant has been residing in Australia for a period exceeding 15 years and that she has completed course in Australia.
2. There is evidence that the applicant has purchased a property in Melbourne in 2015.
3. The applicant refers to her business in Australia. She gave evidence to the first Tribunal concerning business operations, stating that her Australian suppliers, other businesses and homeowners, would be adversely affected by the cancellation of her visa. In her submission to the present Tribunal the applicant provided further information about the business operations, including financial information, and she states that if the visas are cancelled and she has to depart Australia, they will have to close the business and their clients would be negatively affected. The applicant told the Tribunal that they have the specialist knowledge that is required for the running of the business and plan to expand the business in the future and employ more staff and pay more taxes. The applicant states that the business employs 11 staff and the closure of the business will affect its employees.
4. The Tribunal accepts that the applicant has significant financial and employment ties in this country. The Tribunal accepts that the applicant's business activities are of benefit to Australia. The Tribunal is also prepared to accept that if the applicant's visa is cancelled and if that cancellation results in the applicant having to cease her business operations, that may have an adverse effect on suppliers, clients and other businesses that rely on the applicant's business.
5. The applicant states that her brother and his immediate family are now Australian citizens. Her parents hold the temporary Parent visas and presently reside with her to support her son. The Tribunal accepts that the applicant has extensive family links in Australia.

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

1. In response to the NOICC the applicant stated that she was not aware of the issue raised by the NOICC. That appears to be a disingenuous statement, as the applicant concedes that she had paid another person to sit the IELTS test. In oral evidence the applicant states that she wanted to avoid the question and was taking a risk in case Immigration did not find out about another person doing the IELTS test. The Tribunal finds that the applicant had deliberately sought to mislead, and had provided incorrect information, in response to the NOICC.

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

1. There are no other known instances of non-compliance. The applicant states that weight should be given to this consideration in her favour however, the Tribunal does not consider that the absence of non-compliance (that is, the absence of other negative conduct by the applicant) should be given weight in her favour. The existence of other non-compliance could result in this consideration weighing in favour of the cancellation but the absence of other instances of non-compliance means this circumstance is neutral.

The time that has elapsed since the non-compliance

1. The application for the Skilled visa was made in June 2014 and over 11 years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

1. The applicant claims that she abides by the Australian law. That may or may not be the case as the applicant appears to be working when she admits she has no permission to work. The applicant states that proportionate weight should be given to this consideration in her favour. However, as noted above, the Tribunal is of the view that the applicant's compliance with the Australian laws (even if accepted) means that this consideration should be neutral weight (and breaches of the law would have weighed against the applicant). The Tribunal does not consider that compliance with the laws, that is expected of any Australian resident, should be given positive weight, let alone 'proportionate weight'.

Any contribution made by the holder to the community

1. In her response to the NOICC the applicant referred to the operation of her business, stating that the decision to cancel her visa would affect her employees, clients and stakeholders. The applicant referred to the various projects in which her business was involved. As noted above, the Tribunal accepts that the applicant has contributed to the community through her business activities.
2. The applicant told the Tribunal that she did not have permission to work. When questioned how she managed the operation of the company, the applicant stated that she was 'just a director' and the company employs a business manager. The applicant confirmed that she was paid director fees. The Tribunal is not convinced that she has been truthful in her evidence about her involvement in the business.
3. 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] FCAFC 145; (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. This is set out in the Department's policy guidelines ('General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)', which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

Whether there are persons in Australia whose visas would, or may, be cancelled under s 140.

1. The visa held by the applicant's partner would be subject to the consequential cancellation. The applicant's child holds a Bridging visa on departure grounds and his visa would not be subject to consequential cancellation, although in practice, the child might have to leave Australia if the parents' visas are cancelled.

Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example 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

1. The applicants have a child born in April 2019. The applicant claims in her evidence to the first Tribunal that she wants her son to be brought up in Australia where he would have better opportunities and she provided to the first Tribunal evidence of having approached some schools in Melbourne to enrol the child.
2. In her submission to the Tribunal of 17 October 2025 the applicant refers to the circumstances of her son, who has been diagnosed with ASD Level 2 (and she told the Tribunal the child has also been diagnosed with ADHD) and she provided a number of medical reports relating to her son, which confirm that he requires, and is receiving, ongoing supports. The applicant told the Tribunal that the child receives occupational therapy and speech pathology support weekly and psychological support every few weeks and there have been good results. The applicant told the Tribunal that her son finds it difficult to adapt to change and it is better for him to continue with the familiar school and environment. The Tribunal accepts that this is so.
3. Mr Watson-Munro and Dr Fan provided reports in which they expressed the views that it would be in the best interest of the child to remain in Australia to have access to the supports that he requires. The Tribunal accepts the professionals opinions expressed in these reports and, in particular, the Tribunal accepts that given the child's medical condition and need for ongoing treatment, it is in the best interests of the child to remain in Australia. This is a primary consideration, although not a determinative one.

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

1. There is no evidence, and the applicant does not claim, that Australia's nonrefoulement obligations are engaged in this case. The applicant refers to her son's condition and lack of appropriate treatment in China. The Tribunal is mindful that, firstly, there is no documentary evidence to support that claim and, secondly, the child's visa is not dependent on the parents' visa.

Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia's non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal

1. If the applicant's visa is cancelled, and unless she is granted another visa, the applicant will become an unlawful non-citizen and would be liable to be detained and removed from Australia. The visa held by the applicant's partner would also be subject to the cancellation.
2. The cancellation of the visa will result in the operation of s. 48 which would significantly limit the applicant's future visa options onshore. The applicant would also be subject to an exclusion period in PIC 4013 if she were to make an application for a visa offshore.
3. The cancellation of the visa means the applicant will lose any of 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).

1. Some of the hardship to which the applicant referred, relating to the operation of her business and the reliance of others on her business, is outlined above. The applicant also claims that it would be hard for her to sell the business due to the specialist knowledge required for its operations. The Tribunal has accepted that hardship would be caused to the applicant and her family, as well as others relying on her business, if the business were to cease its operations.
2. The applicant's evidence to the first Tribunal is that she was making arrangements to enrol her child in an Australian school and in her submission to the first Tribunal she provided evidence having made applications to several schools in Melbourne. There is evidence before the present Tribunal concerning the child's ongoing schooling.
3. The Tribunal has considered the totality of the applicant's circumstances. The Tribunal has determined that there was non-compliance with ss. 101 and 103 of the Act and that there are grounds for cancelling the visa.
4. The Tribunal considers that there are strong reasons why the visa should be cancelled. Primarily, this is because the decision to grant the visa was based on incorrect information and a bogus document. The Tribunal considers it highly significant that if the applicant was unable to evidence her proficiency in English, she would not have been entitled to be granted the visa. In the Tribunal's view, that is the strongest factor in favour of the cancellation and, in most circumstances, the Tribunal would give this factor greater weight than to other considerations.
5. Another significant factor is the circumstances in which the non-compliance occurred. Here, the non-compliance was not due to an inadvertent error. Rather, the applicant was aware that she did not have the required English proficiency and she took positive steps to fabricate evidence (she claims to have paid another person to sit the test for her) in support of her application. That is, the applicant took positive steps to mislead, and had done so willingly and knowingly. In the Tribunal's view, that is another strong factor in favour of the cancellation.
6. The Tribunal places weight on the fact that the applicant continued to mislead in her response to the NOICC by denying any knowledge of the issue. This is despite the applicant being fully aware that the test report form was a bogus document and that she did not sit the test. The applicant's lack of candour following the issuance of the NOICC also weighs strongly in favour of the cancellation.
7. The Tribunal gives these factors very significant weight in favour of the cancellation and, in many instances, the Tribunal wound find that these outweigh other considerations. However, in the circumstances of this case, the Tribunal also notes there are strong reasons why the visa should not be cancelled.
8. Primarily, the Tribunal has formed the view that it is in the best interests of the child to remain in Australia and that may not be possible if the visa remains cancelled. The best interests of the child are determined in this case by the child's particular circumstances and the Tribunal places significant weight on the medical evidence concerning the child's condition and the need to access ongoing treatment in Australia. The Tribunal finds that the best interests of the child weigh strongly against the cancellation.
9. The Tribunal has also decided to place significant weight on the applicant's contribution to Australia. The applicant's evidence establishes that through the operation of the business, the family provides meaningful employment opportunities to Australian staff and that there are other companies that are dependent on the operation of the applicant's business.
10. The Tribunal is of the view that other considerations, such as the hardship that would be caused to the applicant and her family by the cancellation and the family's present circumstances should be given minimal weight against the cancellation in circumstances where the applicant would not have been entitled to be granted the visa if the bogus document and incorrect information was not provided. As noted above, the Tribunal has formed the view that many other considerations - such as the applicant's claimed compliance with the law - should be given neutral weight.
11. Having regard to the particular circumstances of this case, the Tribunal has decided to give greater weight to the best interest of the child and the applicant's contribution to the community.
12. 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.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant's Subclass 189 - Skilled - Independent visa.
2. The Tribunal has no jurisdiction with respect to the other applicant.

Representative for the Applicant: Mr Duy Thanh San