1605112 (Migration)

[2016] AATA 4232

1605112 (Migration) [2016] AATA 4232 (10 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jing Dou

CASE NUMBER:  1605112

DIBP REFERENCE(S):  BCC2014/1135058

MEMBER:Kate Timbs

DATE:10 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 10 August 2016 at 4:37pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 9 September 2014 by a delegate of the Minister for Immigration to cancel Ms Dou’s Subclass 100 (Spouse) visa (the permanent visa). The delegate made the decision under section 109(1) of the Migration Act 1958 (the Act) for non-compliance with notification obligations (discussed below).

2. The delegate cancelled the visa on 9 September 2014 and the Migration Review Tribunal (MRT) affirmed that decision on 24 February 2015.

3. On 22 March 2016, the Federal Circuit Court quashed that decision and remitted it to this Tribunal for reconsideration according to law.

   RELEVANT LAW

4. The relevant law is in the Act and the Migration Regulations 1994 (the Regulations).

5. Relevantly, section 109(1) of the Act allows the Minister to cancel a visa if, among other things, the visa holder failed to comply with section 104. That section requires visa holders to inform the Department of Immigration and Border Protection if “circumstances change so that an answer to a question on a non-citizen's application form…is incorrect in the new circumstances”.

6. Before cancelling a visa under section 109, the Minister must issue a notice to the visa holder under section 107 that sets out the alleged non-compliance in detail. In this case, the delegate issued a notice under section 107 that complied with the statutory requirements and to make a decision on Ms Dou’s application for review:

   ·     the Tribunal must consider whether Ms Dou failed to comply with section 104 in the way set out in the section 107 notice; and

   ·     if so, it must consider whether to cancel the visa.

   CONSIDERATION

   Evidence considered

7. The Tribunal considered evidence in the visa cancellation file provided by the Department and documents and written submissions from Ms Dou’s solicitor, Ms Grace Zou. It heard oral evidence from Ms Dou at hearing. The Tribunal also heard her evidence and that of her husband, Mr Bingbing Chen, in a hearing of his application for review to the Tribunal of a decision made by a delegate of the Minister to refuse to grant him a visa based on his relationship with Ms Dou.

   Background

8. On 14 December 2010, Ms Dou’s mother, Ms Xin Rong Xu, applied for Partner (Provisional) (Subclass 309) visas (temporary visas) and permanent partner visas for herself and for Ms Dou. Ms Xu listed Ms Dou as her dependent child in the application form.

9. On 14 March 2012, a delegate of the Minister granted Ms Dou the temporary visa on the basis that, as a dependent child, she was a member of Ms Xu’s family unit (clause 309.311 of Schedule 2 to the Regulations). The definition of “dependent child” in regulation 1.03 excludes children who are engaged to be married or who have a spouse or de facto partner.

10. On 15 January 2014, the Department granted permanent visas to Ms Xu and Ms Dou. It was not a criterion for the grant of the permanent visa that Ms Xu be a member of Ms Dou’s family unit at the time of that decision.

11. On 25 March 2014, Mr Chen applied for temporary and permanent partner visas based on him having a married relationship with Ms Dou. The information in the application was that they entered into a de facto relationship in May 2013.

12. On 30 July 2014, a delegate of the Minister issued a section 107 notice. On 9 September 2014, after receiving the response, the delegate cancelled Ms Dou’s permanent partner visa.

    Non-compliance with section 104

13. The section 107 notice stated Ms Dou had failed to comply with section 104:

    ..because you failed to notify the Department that you began a relationship with Mr Chen in May 2013 and registered your relationship with the NSW Registry of Births Deaths and Marriages on 23 August 2013, i.e. approximately five months before the grant of your visa subclass 100.

14. The evidence received in relation to Mr Chen’s application for review indicates he and Ms Dou entered into a de facto relationship after they registered the relationship and before they married in January 2014. Ms Dou’s evidence to the Tribunal in both matters is consistent with a finding to that effect.

15. The Tribunal notes that this is not consistent with the detail in the allegation in the section 107 notice, which does not refer to being in the de facto relationship with Mr Chen. Rather, it refers to her entry into a relationship and the registration of that relationship. However, the Tribunal is satisfied that the section 107 notice was adequate to notify Ms Dou that the Department considered that she failed to comply with her obligation to notify it that she had entered into a de facto relationship with Mr Chen.

16. At hearing, Ms Dou confirmed she did not advise the Department of the change in her family circumstances and that she was no longer Ms Xu’s dependent child at any time while the delegate was considering the grant of the permanent visa.

17. In her grounds of review to the Federal Court, Ms Dou argued she was not required to do so under section 104 because it was not material to the grant of the permanent visa. However, Smith J found that it was not the case and that the object of section 104 is to “maintain the integrity of the visa scheme, and it is not focused upon the criteria for the grant of a particular visa”. In that case, the Tribunal finds she was required under section 104 to advise the Department of the change in her family situation and did not comply with her obligations under section 104 in the way described in the section 107 notice.

    Should the visa be cancelled?

18. In that case, the Tribunal next considered whether to exercise the discretion to cancel the visa under section 109(1). To do this, the Tribunal must consider the applicant’s response to the section 107 notice about the non-compliance, and have regard to the relevant circumstances prescribed in regulation 2.41 set out in the headings below.

    The correct information

19. There is no allegation that Ms Xu provided incorrect information about Ms Dou’s family circumstances in the application for the visas. Rather, she failed to provide information about a change to those circumstances.

    The likely effect on the decision to grant the visa of the correct information

20. The grant of the permanent visa was not directly affected by the failure to provide information about the change in Ms Dou’s family circumstances because it is not a criterion forthe grant of that visa that Ms Dou continue to be a dependent child of Ms Xu.

21. At the relevant time, section 116 provided that the Minister may cancel a visa if, among other things, “any circumstances which permitted the grant of the visa no longer exist’”. The Department granted Ms Dou’s temporary visa on the basis that she was Ms Xu’s dependent child. It follows that it was open to the Department to cancel the temporary visa if it were aware of the change in her family circumstances before the grant of the permanent visa. It is a criterion for the grant of the permanent visa that Ms Dou holds a temporary partner visa and the Minister would not have granted the permanent visa if the Department had cancelled the temporary visa.

22. It follows the non-compliance might have affected the grant of the permanent visa but only if the Minister had cancelled the temporary visa. The Tribunal considered whether that was a likely outcome. Ms Zou pointed out in her written submissions that the Minister’s Procedures Advice Manual (PAM 3) provides the following advice for decision-makers at 13.5:

    Cancellation of the visa of a member of the family unit may be considered if there is substantiated evidence of migration fraud that affected the initial visa decision to accept that applicant as the member of the visa 309 main applicant.

23. There is usually a lengthy period of at least two years between the grant of a temporary and permanent visa. The policy and the criteria for the grant of the permanent visa reflects the reality that older dependent children are likely to form their own family relationships during that lengthy period and become otherwise independent from their parents.

24. As noted above, Ms Dou was not in a relationship with Mr Chen when the delegate granted a temporary visa. Indeed, the evidence is that she did not meet him until 2013. It follows, there was no “migration fraud that affected the initial visa decision” to grant the temporary visa. The Tribunal infers the Minister would have followed policy and would have decided not to cancel her visa if she had provided information about the change in family circumstances. In that case, the Tribunal finds Ms Dou’s non-compliance had no effect on the grant of the permanent visa.

    The circumstances in which the non-compliance occurred

25. At hearing, Ms Dou confirmed she signed a declaration attached to the visa applications stating that, among other things, she would advise the Department about any changes to their circumstances that occurred while the Department considered the applications for both visas.

26. Ms Dou said she has poor English and had no real understanding of her obligations. Ms Dou said that she and Mr Chen consulted a migration agent after they entered into their relationship. However, the agent did not advise her to tell the Department about the change in her family circumstances. The Tribunal accepts this evidence but does not give a great weight. As a visa holder, she is aware that she has obligations. She has the responsibility to ensure that she understands and complies with them, whether or not she reads and understands English.

    Ms Dou’s present circumstances

27. Ms Dou lives independently from her mother and is still in a relationship with Mr Chen. They would prefer to stay living in Australia but are both Chinese nationals and could return to China and live there together.

    Ms Dou’s response to the section 107 notice and her subsequent behaviour

28. In 2014, Ms Dou’s then migration agent responded to the section 107 notice by stating that the relationship with Mr Chen was not a de facto relationship. Ms Dou admits this was not true and the Tribunal infers she agreed to a tactic suggested by her agent to maintain her visa status. As noted by the MRT, “this does her no merit”. However, the MRT also perceived her to be a candid and open witness and the Tribunal is satisfied she openly admitted to the change in her family circumstances in both Tribunal hearings.

29. There is no other evidence before the Tribunal of behaviour that is adverse to Ms Dou.

    Any other instances of non-compliance or breach of the law

30. The Tribunal has no evidence of any other instances of non-compliance by Ms Dou with visa conditions or any other obligations relevant to her visas. There is no suggestion she has broken any Australian laws.

    The time that has elapsed since the non-compliance

31. Ms Dou’s family circumstances changed late in 2013. It has been approximately three years since she failed to comply with her obligations.

    Any contribution made by the holder to the community.

32. There is no evidence of any special contribution made by Ms Dou to the Australian community.

    CONCLUSION

33. The Tribunal notes that the regulation 2.41 matters are not an exhaustive list of relevant matters.[1] In the course of considering those matters, it has also considered relevant policy and, in particular, it found Ms Dou’s non-compliance did not affect the grant of the permanent visa. This does not mean Ms Dou’s non-compliance was not a serious matter because the purpose of section 104 is to ensure the integrity of Australia’s immigration processes. The Tribunal gives little weight to its findings about her contribution to the Australian community and her current circumstances and it has found her behaviour immediately following the non-compliance does her no merit. However, she was an honest witness in her applications for review to both tribunals and, in the Tribunal’s view, it is significant that there is no evidence of migration fraud or failure to comply with other visa obligations or Australian laws. It has been three years since her non-compliance and the Tribunal concludes that the non-compliance with section 104 was an isolated incident. Overall, it finds it is preferable not to cancel the visa. It will set aside the decision under review and substitute that decision.

    [1] MIAC v Khadgi (2010) 190 FCR 248

    DECISION

    The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Kate Timbs
    Member