1509292 (Migration)

[2016] AATA 3183

1509292 (Migration) [2016] AATA 3183 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Qiujie ZHANG

CASE NUMBER:  1509292

DIBP REFERENCE(S):  CLF2014/10706

MEMBER:Mr S Norman

DATE:28 January 2016  

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 580 Student Guardian visa.

Statement made on 28 January 2016 at 11:51am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 July 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 580 Student Guardian visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) of the Migration Act on the basis that the applicant was found working in breach of condition 8101 (no work). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b) of the Migration Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8101 (no work) attached to the applicant’s visa. This condition requires:

   8101. The holder must not engage in work in Australia.

8. At the Tribunal hearing, the applicant said she arrived in Australia in 2011. That said, by Notice of Intention to Consider Cancelling the TU 580 visa (re-granted 22 May 2015) dated 9 July 2015, it was stated the applicant was found working in the Chi Clinic Blacktown (on 8 July 2015). She was found to be working as a massage therapist. Her visa had been granted so she could accompany her “child” to Australia. At the Chi Clinic Blacktown, it was also claimed she appeared to be wearing a purple uniform shirt when found. She claimed to have been ‘working’ at the business for approximately 1-2 days per week for one month. The Department officer noted the applicant was listed under a different name on the duty roster at the clinic. However, when asked, the applicant said she was not working. She was at the business premises to learn massage. The applicant also said her husband was working hard in China to support her and her child (though later in the hearing the applicant also said that her husband had lost his leg in March 2015 – discussed below).

9. By decision of the 9 July 2015, the applicant’s TU 580 visa was cancelled by the delegate.

10. At the Tribunal hearing, the applicant said she understood that prior to coming to Australia she knew she had claimed to have sufficient funds to support herself and that she could not work.

11. At the hearing, the applicant also said she was at the clinic to learn massage. She said there is no rule that she could not learn massage at a working clinic. The Tribunal put to her that given she was in a uniform, entered on the work roster (though under an alias), and in a work place and not a learning institution, it may find she had been working. Later, the applicant said (words to the effect) her circumstances were now dire because her husband had been arrested for being a Falun Gong practitioner in China (discussed below) – and presumably she needed money to support herself (though she said she was not working).

12. At any rate, the Tribunal is satisfied the applicant was found working at the Chi Clinic Blacktown (on 8 July 2015). The Tribunal is satisfied this was in breach of condition 8101.

13. For these reasons, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

14. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

15. Based on the evidence before it, the Tribunal is satisfied the applicant initially travelled to and resided in Australia, in order to be with her now 20 year old son.

16. The Tribunal is satisfied the applicant breached her visa conditions. However, and for the reasons set out herein, the Tribunal is also satisfied the applicant was not a generally credible witness and that she sought to continue putting false information in support of her case.

17. Apart from the fact the Tribunal is satisfied the applicant engaged in providing ongoing false information in support of her case, the Tribunal has no evidence about her past and present conduct with the Department.

18. When asked at hearing, and though she said her husband had lost a leg (discussed below), the applicant did not claim to be concerned about suffering financial hardship should her visa be cancelled. That said, if the applicant’s visa was cancelled she may become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, there is no evidence that has satisfied the Tribunal the applicant would be subject to indefinite detention if her visa is cancelled. 

19. At the hearing, the applicant said for the first time that she had not returned to China for 4 years and, the reason she did not wish to return to China was that her husband was a Falun Gong practitioner who had been arrested and mistreated in March 2015. He had lost his leg during this mistreatment. The applicant said she did not wish to return to China as she had not told her now 20 year old son who was studying Engineering at UNSW, and she also did not wish her son’s studies to be impacted, or for the son to be “implicated”.

20. The Tribunal put to her that it may not accept she was credible. That was because this was the first time this claim was mentioned, and that her migration agent had not mentioned this claim. The applicant said she did “not want many people to know”. Also, and though not necessarily fatal to the claim, the applicant did not have any corroborating evidence in support of this new claim. Be that as it may, and though the applicant did not say that she was a Falun Gong practitioner herslef, she said she could not return to China as she would be arrested immediately on return (due to her husband’s circumstances).

21. Later in the hearing, the applicant then said she wished to return to China, after her son had finished his studies. She said she could return then. When it was then put to her (words to the effect) this appeared inconsistent with her prior statements, the Tribunal understands the applicant said (words to the effect), after her son graduated, she would be able to return to China.

22. After considering the evidence, the Tribunal is satisfied the applicant’s new claims about her husband being a Falun Gong practitioner, and being harmed for that reason in China, are false.

23. Next, the Tribunal notes the applicant’s son’s visa would not be impacted by the cancellation of his mother’s visa. The Tribunal has no evidence to suggest the now 20 year old son would not be able to continue with his studies should his mother’s (the applicant’s) visa be cancelled.

24. That said, and after considering all the evidence, the Tribunal is not satisfied the discretion should be exercised in this case.

25. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 580 Student Guardian visa.

    Mr S Norman
    Member