1722879 (Migration)

1722879 (Migration) [2019] AATA 2754 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722879
MEMBER:John Billings
DATE:28 June 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 28 June 2019 at 12:42pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Federal Circuit Court remittal – s 375A certificate – investigation methodology – privacy – ground for cancellation – incorrect information in previous visa application – failure to correct incorrect answers – failure to disclose child – marital status – separated – not divorced – ‘previously’ been married or in a de facto or independent relationship – extra-marital affair – lack of the required commitment – subjective intention of the parties – objective facts – evidence of subsequent conduct – credibility issues – inconsistent evidence – consideration of discretion – serious act of non-compliance – visa grant based on incorrect information – proposed investment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 101, 105, 107, 107A, 109
Migration Regulations 1994 (Cth), rr 1.15, 1.15A, 2.41
CASES
Bretag v MIMIA [1991] FCA 582
Cao v MIAC [2007] FMCA 225
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Singh [2016] FCAFC 183
MIEA v Pochi [1980] FCA 85
Resham Singh v MIEA [1996] FCA 1429

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 24 July 2015 by a delegate of the Minister for Immigration under s.109(1) of the Migration Act 1958 (the Act) to cancel the Class BB Subclass 155 (Five Year Resident Return) visa held by [the applicant].
The delegate cancelled the visa after issuing a NOICC (notice of intention to cancel visa) and considering [the applicant]’s response. The delegate found that [the applicant] gave incorrect information in an application for a visa that he held previously, and exercised discretion to cancel the visa. [The applicant] was a secondary applicant for that visa. The primary visa applicant was [Ms A]. [Ms A] is a [age] year old national of China. [The applicant] was married to [Ms A] at the time of the application for and the grant of the visa. The information concerned [the applicant]’s relationship status and whether he had any children other than the son he had with [Ms A]: see further below. The significance of the information is that to be eligible for the visa [the applicant] had to be a member of the family unit of a person who satisfied the primary criteria. Relevantly, [the applicant] had to be the spouse of [Ms A]. (The term “spouse” is defined in the Migration Regulations 1994 (the Regulations): see below).
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
[The applicant] applied for review on 6 August 2015. He provided a copy of the primary decision to the Tribunal.
There was a hearing before the Tribunal (differently constituted) on 2 December 2015. At that time [the applicant] was in Australia and he appeared in person. Following the hearing the Tribunal issued an invitation pursuant to s.359A of the Act: see below. On 24 June 2016 the Tribunal affirmed the decision to cancel the visa: AAT reference 1510716.
[The applicant] applied for judicial review of the Tribunal’s decision. On 20 September 2017 the Federal Circuit Court of Australia made an order by consent remitting the matter for reconsideration. The essential basis for remittal was that the Tribunal had not discharged its obligations in relation to a non-disclosure certificate dated 11 August 2015 given under s.375A of the Act.
The Tribunal has listened to the audio recording of the December 2015 hearing.
[The applicant] appeared before the Tribunal on 10 and 11 May 2019 by telephone from China to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of interpreters in the Mandarin and English languages.
[The applicant] was represented in relation to the review by his registered migration agent. The representative attended the hearings. There were other migration agents who previously represented [the applicant].
[The applicant] is a [age] year old national of China. He has obtained [qualifications] in China in [Discipline 1], [Discipline 2] and [Discipline 3]. He has owned properties and conducted business activities in China and Australia. He currently owns a house in Melbourne. He has a business in China in which he invests in the [Industry 1] field. He imports [goods] from Australia into China. He has explored investing in [specified] business in Australia.
In 1988 [the applicant] married [Ms A] in China. [The applicant] and [Ms A]’s son was born in [year]. [Ms A] twice became pregnant again in the early 1990s but the pregnancies were terminated. [The applicant] and [Ms A] were divorced in 2011.
[The applicant] has held numerous visas for Australia. In 1999 he made the first of a number of visits to Australia as a tourist. In 2003 he was granted a [temporary business] visa. On 24 March 2005 [the applicant] was granted a [second business] visa. That was a temporary visa due to expire in late 2009. [Ms A] and their son were secondary applicants. [The applicant] arrived in Australia as the holder of the [second business] visa [in] April 2005. On 23 December 2008 [Ms A] applied for [her own business] visa. That was a permanent visa. [The applicant] and his and [Ms A]’s son were secondary applicants. It is in relation to the [third business] visa application that the delegate found that [the applicant] gave incorrect information. On 30 January 2009 [Ms A's business] visas were granted. On 28 August 2014 [the applicant] was granted the Subclass 155 visa that has been cancelled.
After [the applicant] applied to the Tribunal for review in August 2015 he was granted a series of Bridging E visas. [The applicant] departed Australia [in] June 2017 and has not returned.
Especially since he arrived in Australia in 2005 holding [his second business] visa [the applicant] has departed and re-entered Australia on many occasions.
[The applicant] currently resides in Guangzhou with [Ms B]. [Ms B] is a [age] year old national of China. The Tribunal has been told that [the applicant] and [Ms B] have never married. [The applicant] and [Ms B] have had three children together: two sons and a daughter. Their first son, [Child C], was born in [year]. They had a second son in the first half of [year]. They had a daughter in late [year]. [Child C] was born in Hong Kong. The other children were born in Guangdong province.
The primary decision includes the following information. In the application for the [third business] visa there was information given, in particular, that [the applicant] was the spouse of [Ms A]. [The applicant]’s current marital status was given as “Married”. He was identified as the “spouse” of [Ms A]. To the question whether he had “previously been married or in a de facto or independent relationship” there was the response “No”. There was a prompt in the form to give deals of all his children not already listed in the application form “(including from previous marriages/relationships)”. No answer was given to that. On 5 December 2011 [the applicant] lodged a sponsorship for a Class AH Subclass 101 (Child) visa for [Child C]. Accompanying the application for that visa was a birth certificate naming [Ms B] as mother and [the applicant] as father. On 16 April 2013 [Ms B] made an application offshore for a Partner visa. [The applicant] was the sponsor for that visa. On 5 December 2013 officers of the Department interviewed [Ms B] and [the applicant] in China in connection with the Partner visa application.
In summary, the primary decision records that during the December 2013 interview [the applicant] provided the following information:
·[The applicant]’s relationship with [Ms A] broke down in 2001 although they were not yet separated. He maintained the relationship for the sake of the son he had with [Ms A]
·[The applicant] met [Ms B] in 2002 and arranged and paid for a trip to Hainan where they shared the same room and established “a romantic relationship”
·After the SARS outbreak in China in April 2003 [the applicant] suggested to [Ms B] that she terminate her employment in Harbin and move to his spare apartment in Guangzhou. At that stage she became totally financially dependent on him
·In 2004 [Ms B] obtained employment through [the applicant]’s connections
·By March 2005, after the grant of the [second business] visa, [Ms A] remained largely in Australia while [the applicant] travelled to and from China frequently. [The applicant] stated that by this time he was truly living separately from [Ms A]. When he visited [Ms A] and their son in Australia he lived in a separate room in the same house
·In August 2005 [Ms B]’s father died and [the applicant] took care of the funeral arrangements and paid for all the associated expenses
·After the funeral, [Ms B]’s mother moved into the apartment owned by [the applicant] where [Ms B] had been living. This “entire incident” confirmed the serious nature of the relationship
·In [year] [Child C] was born. [The applicant] told his family about the birth and about the relationship he had with [Ms B]
·The birth of [Child C] was another turning point for [the applicant] with regard to his relationship with [Ms B] and [the applicant] (and [Ms B] also) stated that this event further strengthened the commitment they had to each other
·After 2007 [the applicant] and [Ms B] travelled together “globally” to 10 countries
·In 2008 [the applicant] and [Ms B] jointly purchased a “villa”. The property had since been put solely in [Ms B]’s name “due to government changes in property measures and policy”
The primary decision further records that on the day of the interview an officer contacted [Ms B]’s mother by telephone. [Ms B]’s mother stated that she believed that [the applicant] and [Ms B] were married but she did not recall when the marriage was registered. She believed that [the applicant] and [Ms B] had been together for over 10 years. She was able to recall when she first met [the applicant], before her husband died in 2005. She was aware that [the applicant] had a family but she thought that he and his wife had separated when [the applicant] began dating [Ms B].
The Tribunal will refer to the oral evidence given in December 2015 and May 2019 and to the documentary evidence and written submissions. It is convenient, first, to record, in summary, the particulars of information contained in the s.359A invitation issued in December 2015 and a further s.359A invitation that the Tribunal issued on 10 May 2019, after the May 2019 hearing.
The December 2015 s.359A invitation contained the following particulars of information, derived from handwritten notes of the December 2013 interview:
·[The applicant] told the officers that his relationship with [Ms A] broke down in 2001, though they were not yet separated. Then, when [the applicant] migrated to Australia, he separated in April 2005 as [Ms A] (and their son) remained in Australia and [the applicant] was mainly in Guangzhou
·[The applicant] told the officers that a serious commitment developed between him and [Ms B] after her father died in mid-2005 and that he and [Ms B] went to Harbin where he made the funeral arrangements for her father and paid the expenses and allowed her mother to move into the Guangzhou apartment with [Ms B]
·[The applicant] and [Ms B] held a “100 Day party” following the birth of [Child C] in [year] in Guangzhou[1], and this was attended by 20 friends and family members of [the applicant] and [Ms B]
·Also following the birth of [Child C], [the applicant] introduced [Ms B] to his parents and younger brothers, and his parents and [Ms B]’s parents met, and his parents regarded [Ms B] as a “new daughter-in-law”
·[The applicant] and [Ms B] both told the officers that they travelled overseas together regularly from 2005 onwards[2]
·[The applicant] told the officers that he started to take [Ms B] out to meet his friends in Guangzhou in May-August 2004
·[The applicant] told the officers that two things made him committed to [Ms B]: one was her father’s death in 2005, before which her father had told [the applicant] to look after [Ms B] and her mother and [the applicant] had agreed to do so; the other was the birth of the son [the applicant] had with [Ms B] in [year] which made their relationship more secure
·[The applicant] told the officers that friends thought that he and [Ms B] were married, although his family knew they were not, but agreed that the birth of his son with [Ms B] was like a marriage certificate
[1] [Child C] was actually born in Hong Kong.
[2] The Tribunal has noted that the year was 2007, according to the primary decision.
The May 2019 s.359A invitation contained the following particulars of information, derived from the Department’s movement records:
·[The applicant] departed Australia [in] 2006, [before] the birth of [Child C]. He did not re-enter Australia until [late] 2006
·From [2006] until [January] 2009 [the applicant] was outside Australia for approximately 28 out of 32 months
·[In] January 2009 [the applicant] entered Australia after a short absence. [Ms B] entered Australia [later in] January 2009. [The applicant] and [Ms B] departed Australia [in] February 2009 at the same time and on the same flight. [The applicant] next entered Australia [in] March 2009
There were written submissions made to the Department by [the applicant]’s former migration agents in response to the NOICC.
The other material submitted to the Department includes a statutory declaration by [Ms A] dated 24 July 2015.
There were written submissions to the Tribunal made before and after the December 2015 s.359A invitation and the May 2019 s.395A invitation.
The other material submitted to the Tribunal includes a report by psychologist, [Mr D] dated 25 February 2016; and statements (with English translations) made in November 2015 by [Mr E] ([the applicant]’s Vice General Manager) and [Mr F] (Director of [County 1] (Jiangxi province) from 2002-2012), a person claiming years’ knowledge of [the applicant]’s activities.
In a submission to the Tribunal dated 25 November 2015 [the applicant]’s representative effectively conceded on his behalf that the application for the [third business] visa contained incorrect information about [the applicant]’s children. The failure to disclose [Child C] was said to be “a misread of the question as [the applicant] understood the question to relate only to children from his marital relationship and member[s] of [the] family unit of [Ms A]”. The Tribunal refers below to the oral evidence [the applicant] gave on this point in December 2015 and in May 2019.
[The applicant]’s position regarding his relationship status emerges from written submissions and the oral and other evidence that the Tribunal now summarises. [The applicant]’s position, in essence, is that at all material times he was the spouse of [Ms A] despite his history with [Ms B].
The information about the December 2013 interview that is recorded in the primary decision, as set out above, essentially reiterates what appears in the NOICC.
Responding to the NOICC in a written submission to the Department dated 17 July 2017, the former migration agents set out the history of [the applicant]’s relationship with [Ms A]. Among other things, [the applicant] and [Ms A] and their son relocated from Ganzhou (in Jiangxi Province) to Guangzhou (in Guangdong province) in 1993 and [the applicant] established his first company there. [Ms A] took care of the child and sometimes helped manage company accounts. In 1999 [the applicant] closed the business and returned to Ganzhou where he invested in real estate. [Ms A] stayed with their son in Guangzhou where living and education standards were higher. That did not reduce their commitment to each other or to the family. [The applicant] spent half his time working in Ganzhou and the other half with his family in Guangzhou. During school holidays the family travelled overseas together. Over the years [the applicant] travelled more and became busier. He did not pay enough attention to the family or his son’s education and problems developed in the family. His son was often absent from (secondary) school and was almost “excluded” by the school. [The applicant] and [Ms A] had a few fights over their son’s education because they cared about him and about the family. This negatively affected the relationship but it did not mean that the relationship had broken down or that the parties wanted a divorce. To say that the relationship broke down in 2001 was not true just because [the applicant] and [Ms A] had more fights than before. [The applicant] met [Ms B] in 2002 and they had a sexual relationship but [the applicant] described it as “an extra-marital affair” and said that “it was not even a serious love relationship”. He said that such affairs were common in his business circle and he was actually having more than one affair. He never thought of giving up his family. The affair was no indication that he would divorce [Ms A]. His commitment to the family was not lessened. [The applicant] decided not to tell [Ms A] about the affair in order to protect the family and not hurt her or their son. When the family made a trip to Adelaide and decided to apply for the [second business] visas [the applicant] could have divorced [Ms A] and married [Ms B] and included her as a visa applicant, but he did not even consider this option because of his commitment to [Ms A]. After the family migrated to Australia, [the applicant] and [Ms A]’s son commenced school and the family pursued a better life, including by seeking a suitable business in order to meet the requirements for the [third business] visa they were later to apply for. The couple supported each other and were happily living in Australia. In 2006 they bought a business in South Australia. [The applicant]’s business in China was ongoing so he had to travel almost every month between Adelaide and Ganzhou. [Ms A] showed great understanding about [the applicant]’s frequent travel. The Australian business was a small one. [Ms A] was “primarily residing” in Australia, managing the business and caring for their son. [The applicant] and [Ms A] took care of the family in their own way. In [year] [Ms B] gave birth to [Child C]. The year before that she realised that [the applicant] did not want to marry her. She planned to end “the affair”. Later she found she was pregnant. She and [the applicant] wanted to keep the child. However, [the applicant] “still clearly emphasised” to [Ms B] that he would take care of her and the child’s basic needs but he would not consider marrying her “at that stage”. [Ms B] was then living in an apartment that [the applicant] bought in the 1990s and had used to accommodate company clients. At that time he did not buy property or a car for [Ms B]. In comparison, [Ms A] “owned big houses and was holding millions of cash deposits in both China and Australia”. These assets were provided by [the applicant].
Concerning the information about [the applicant] and [Ms A] living in separate rooms, the July 2017 submission stated that this was because [the applicant] snored and [Ms A] had difficulty sleeping. It further stated that [the applicant]’s deputy manager in China had to report to him every night, so [the applicant] often worked until 2 or 3 am. [Ms A] preferred to go to bed early whereas [the applicant] preferred to go to bed later. They agreed it would be easier and more comfortable to sleep in separate rooms, but this did not indicate that they were separated or that their relationship had broken down.

The July 2017 submission concluded by stating that [the applicant] and [Ms A] divorced in January 2011 (10 years after 2001) and that it “would have been impossible” for them to maintain a “broken-down” relationship for 10 years, especially after [the applicant] met [Ms B] and started a relationship with her. He had “the option” of divorcing [Ms A] earlier and bringing [Ms B] to Australia (but he did not do that).
On 29 July 2017 [the applicant]’s migration agents responded further to the NOICC (although by then the decision had been made to cancel the visa). Among other things, the agents referred to the statutory declaration by [Ms A]. The submission referred to [Ms B] as [the applicant]’s “secret girlfriend”. The agents submitted that the (joint) ownership of one property (by [the applicant] and [Ms B]) should be regarded as “quite minor and not material” and that it “certainly does not confirm” that [the applicant] intended to live with [Ms B] as a couple. The submission also addressed the discretionary factors: see below.
In her statutory declaration [Ms A] declared among other things that she and [the applicant] had a “very loving and strong relationship” during the course of their marriage and that their love for each other was “true and unconditional”. [Ms A] gave more or less the same reasons as those stated earlier for [the applicant] and her sleeping in different rooms. She declared that this did not mean that they were not in love or that their relationship had broken down. It was a decision they made due to their “different lifestyles”. [Ms A] declared that the relationship “formally broke down” in December 2010 and they “reached an agreement to divorce”. They got divorced in January 2011.
In the submission to the Tribunal dated 25 November 2015 [the applicant]’s representative submitted that the proper test was whether [the applicant] was [Ms A]’s spouse in December 2008 to January 2009 (the period when the [third business] visa was applied for and granted). The representative submitted that the birth of [Child C] could not be “indicia” that [the applicant] was not the spouse of [Ms A] in December 2008/January 2009. The representative referred to evidence, first, that in applications for tourist visas [Ms B] always declared her relationship status to be single; and, secondly, that even though [Ms B] started living in [the applicant]’s apartment in 2003, [the applicant] started living with her in 2011. (The submission also noted that before [the applicant] and [Ms B] started living together in 2011 [the applicant] was residing primarily in Jiangxi and stopped over in Guangzhou to see [Ms B] only when he was in transit to visit [Ms A] and their son in Australia). The representative submitted that unless the Tribunal was satisfied that [the applicant] and [Ms B] were in a de facto relationship in December 2008/January 2009, [the applicant] did not provide incorrect information in claiming to be the spouse of [Ms A]. [The applicant]’s relationship with [Ms B], up until the time his divorce from [Ms A] was finalised, was one of “care” and it did not equate to a spousal relationship for the purpose of the Act and Regulations. It was not disputed that [the applicant] “looked after” [Ms B] and her mother generously by providing financial support and that “in return he received physical intimacy”. Later in the submission, the relationship was described as an “extra-marital affair” and it was stated that “at all relevant times” [the applicant] was prepared to break up with [Ms B] if [Ms A] found out about [Ms B]. That was said to display [the applicant]’s lack of commitment to [Ms B] compared with his commitment to [Ms A]. Regarding [Ms B]’s pregnancy with [Child C], the submission stated that the pregnancy was unplanned but [the applicant] encouraged [Ms B] to keep the child as he became “pro-life” in our about 2005-2006 after he became a Buddhist and regretted “his actions” that caused “numerous abortions” prior to 2006. It was submitted that [the applicant]’s subsequent act of sponsoring [Ms B] for a Partner visa was not a basis for concluding that he was not caring for [Ms A] and his son as a husband (and father) and so was not entitled to claim that he was the spouse of [Ms A]. It was further submitted that [the applicant]’s “infidelity” was itself “not sufficient ground” to undermine his claim to be [Ms A]’s spouse. The submission also addressed the discretionary factors: see below.
Later in November 2015 the representative provided the statements by [Mr E] and [Mr F]. [Mr E] stated that he had worked with [the applicant] for 10 years. He said that because of work [the applicant] “mostly lives in Jiangxi, and he lives alone.” [Mr F] stated that he knew [the applicant] for years. They often drank tea and chatted together. [Mr F] stated that he “noticed” that [the applicant] “always lived alone” in [County 1] and that he had never seen [the applicant] out with any woman.
There were submissions dated 5 January and 1 March 2016, responding to the December 2015 s.359A invitation and addressing the general issues further. It was stated in the January submission that “[the applicant] confirms that he might have exaggerated the level of commitment he felt to [Ms B] in the early days prior to 2012” when he was interviewed in December 2013. He recalled that he was asked if he had ever fought with [Ms A] and gave an example of an incident in 2001. He maintained that the relationship with [Ms A] broke down irretrievably in or about December 2010 when he no longer felt part of the family and was excluded by [Ms A] and their son from important family decisions. He said that paying for [Ms B]’s father’s funeral and allowing her mother to move into the apartment with [Ms B] were actions done “out of sympathy and compassion towards another human being”. He said he would have done the same for other friends, including male friends, given his “superior financial position”. [The applicant] said that the 100 Day party for [Child C] was held to honour and acknowledge the existence of his second son. It was “not a pronouncement of his relationship with [Ms B]”. [The applicant] disagreed with the suggestion that both these things were interrelated. [The applicant] said that while he and [Ms B] did travel overseas, and while they did attend social events together occasionally, he had also been seen with other female companions. Regarding the information that by 2005 [the applicant] and [Ms A] were living separately, [the applicant] said that they were living separately given that [Ms A] moved to Australia but they were not living separately on a permanent basis: there was always a mutual understanding that [the applicant] would eventually settle down in Australia with his family. [The applicant] did not perceive [Ms B] to be his spouse or that their relationship was marital in nature. He rather perceived it as a relationship that was “mutually beneficial where he provided financial support in exchange for physical companionship”. It was stated that, to his mind, a marital relationship exits only when two people are legally married and “upon the conferral of the authority to manage the financial affairs of his household, an authority which was enjoyed exclusively by [Ms A] for a long time before the parties officially divorced”. While the extra-marital affairs (plural) may have “compromised the integrity of the spouse relationship” between [the applicant] and [Ms A], if [the applicant]’s state of mind was that he was not in a spousal relationship with [Ms B] then it could not be said that he did not have a commitment to a shared life as husband and wife with [Ms A] at the relevant time.
The March 2016 submission addressed further specific points. Whereas the December 2015 s.359A invitation referred to information that [the applicant]’s parents regarded [Ms B] as a “new daughter-in-law”, [the applicant] said that his parents acknowledged [Ms B] as the mother of [Child C] but they never acknowledged or regarded [Ms B] as their daughter-in-law prior to 2011. [The applicant] compared [Ms B]’s father’s funeral costs with his net income at the time and said that he regarded the costs as negligible. It was his view that his “monetary contribution” was “only an act of benevolence rather than a gesture of love”. He said that he did not invite [Ms B]’s parents to live in his property in Guangzhou but, after her father died, “he did not prohibit” her mother from living there given that [Ms B]’s mother did not have any other family members left in her own city. It was his view that to ask her to leave “would have been heartless considering [Ms B] is her only family member”. On the subject of social recognition, [the applicant] said that he “did not actively seek to conceal the existence of [Ms B]” given that she was the mother of [Child C], a fact that could not be denied. But he maintained that at no time was [Ms B] given the “status” of a spouse/partner until January 2012 when [the applicant] and [Ms B] “started to commit” to a shared life together. A “significant emotional attachment” did not equate to a “relationship”, it was submitted. In this context the submission referred to r.1.15A(3) of the Regulations. It was submitted that the “subsequent event” of [the applicant] sponsoring [Ms B] for the Partner visa should not lead to the conclusion that [the applicant] was in a relationship with her in late 2008 and early 2009 so that he was not the spouse of [Ms A] at that time. The March 2016 submission referred, finally, to the report of [the psychologist, Mr D] in relation to the discretionary factors: see below.
There were further written submissions, dated 1 May 2019, that were provided prior to the hearing. The submissions summarised the earlier submissions and referred to relevant case law: see below.
The response to the May 2019 s.359A invitation (concerning [the applicant]’s travel from 2006-2009 and [Ms B]’s visit to Australia in 2009) is dated 30 May 2019. The response referred to [the applicant]’s previous responses. It noted the time that had passed and that [the applicant] did not have an exact recollection of events. [The applicant]’s recollection was that he left Australia [in] 2006 but did not go to Hong Kong [immediately]. He arrived in Hong Kong a few days before the birth of [Child C]. He was in Hong Kong for about five days. He remembered that because his visa for Hong Kong permitted visits for seven days only. [The applicant] returned to Jiangxi province to continue his work. [Ms B] and the child did not accompany him on his return to Jiangxi. From June 2006 until [November] 2006 [the applicant] “primarily resided” in Jiangxi managing his company. It was submitted again that the focus was not whether there had been a continuing relationship between [the applicant] and [Ms A] from 2005 to 2009. Rather, the proper test was whether [the applicant] was [Ms A]’s spouse in December 2008 to January 2009. Therefore, the birth of [Child C] in [year] could not be taken as an indication that [the applicant] was not the spouse of [Ms A] December 2008 to January 2009.
The response then stated that from [May] 2006 until January 2009 [the applicant] “primarily resided” in Jiangxi Province and continued working. His role required him to assess and approve all of the company’s expenses so he was unable to reside in Australia for a lengthy period of time as that would lead to a considerable backlog of “account payables”. (The response was accompanied by untranslated documents that were said to be signed by [the applicant] during the relevant period).
It was submitted that there was a spousal relationship between [the applicant] and [Ms A] in December 2008 to January 2009 despite the period of time [the applicant] spent outside Australia.
Regarding [Ms B] and [the applicant]’s travel in 2009, it was stated that [Ms B] made her first visit to Australia as a tourist. [The applicant] flew from Adelaide to Sydney and spent about two days with her before returning to Adelaide where he stayed “at home” while she stayed in a hotel. While he was in Adelaide he received a call from his company in Jiangxi requesting his immediate return due to “quality related accidents on the construction site”. Following this, [the applicant] travelled with [Ms B] from Australia to Guangzhou but he then boarded a flight to Jiangxi to deal with the issues.
It was submitted again that [the applicant]’s relationship with [Ms B] began as an extra-marital affair and continued as such until 2011 “when the relationship could be classified as a de-facto relationship”. It was submitted that infidelity itself is not a sufficient ground to undermine the claim that [the applicant] was the spouse of [Ms A] and that the Tribunal should take into consideration “the circumstances of this particular case with the other circumstances of the relationship” to determine whether [the applicant] and [Ms A] were “in a shared life as husband and wife to the exclusion of all others at the time of application and the time the visa was granted”. The response concluded with an additional submission concerning the discretion: see below.
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
Cancellation and the discretion to cancel
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.
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.
Section 107A provides that the possible non‑compliances that may be specified in the notice under s.107 and that can constitute a ground for cancellation under s.109 include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the visa holder.
Extracts of the Act relevant to this case are attached to this decision.
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.
Non-disclosure certificate
The Department’s file includes a non-disclosure certificate dated 11 August 2015, given under s.375A of the Act. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183.
The certificate concerns information in two sets of documents. Concerning the information in the first set of documents, the certificate states that disclosure would be contrary to the public interest because it is “information about investigation by the [D]epartment’s officers, disclosure of which may reveal investigation methodology” and “may affect future capacity to obtain information using these methods. Concerning the information in the second set of documents, the certificate states that disclosure would be contrary to the public interest because it is information provided by a third party, disclosure of which “may breach the privacy of that person”.
The Tribunal provided a copy of the certificate to [the applicant] on 3 October 2018 and invited submissions as to the validity of the certificate. The Tribunal pointed out that it would in any event have regard to its obligations under s.359A of the Act. There was a submission dated 19 October 2018. It was submitted that without having the opportunity to view the documents [the applicant] was unable to determine the validity of the certificate and make submissions about whether the claimed reasons for non-disclosure were justifiable.
At the May 2019 hearing the Tribunal noted that [the applicant] had the opportunity to make a further submission about the s.375A certificate. In the response to the May 2019 s.359A invitation, [the applicant]’s representative provided a copy of the 19 October 2018 submission regarding the certificate and observed that that the Tribunal had not responded to the submission.
The Tribunal has viewed the documents covered by the s.375A certificate. The Tribunal considers that the certificate is valid so far as concerns the information in the first set of documents and that disclosure to [the applicant] of those documents is neither warranted nor permissible. The Tribunal has in any event had regard to its obligations under s.359A of the Act, as set out in this decision record. So far as the information in the second set of documents is concerned, it is not clearly stated in the certificate how disclosure might be contrary to the public interest, but the Tribunal considers that the information is irrelevant. In essence the information is merely that a named migration agent made general inquiries of the Department in 2015 but was not given information about the visa cancellation for the reason that, if the agent was retained at all by [the applicant], the agent was retained only in relation to [Ms B]’s Partner visa application and not in relation to [the applicant]’s visa cancellation.
The Tribunal’s response to the 19 October 2018 submission has essentially been the s.359A invitations.
The definition of “spouse”
‘Spouse’ is defined in s.5F of the Act which provides that a person is the spouse of another person where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters (for the purpose of a Partner visa application), regard must be had to all of the circumstances of the relationship including evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3).
Regulation 1.15(4) provides that if the Minister is considering an application for a visa of a class other than the classes of Partner visa mentioned in r.1.15A (2), the Minister may consider any of the circumstances mentioned in r.1.15A(3).
[The applicant]’s representative submitted that it is relevant to consider r.1.15A(4) in assessing the spousal relationship of [the applicant] and [Ms A], and that that was the assessment the decision-maker ought to have undertaken for the purposes of the [third business] visa application. The representative further submitted that consideration of the regulation requires “an assessment of the subjective intentions of the parties”. In this regard the representative cited Resham Singh v MIEA [1996] FCA 1429. The representative pointed out that during December 2008 to January 2009 [the applicant] and [Ms A] were legally married, had a teenage son together and continued to have joint financial assets.
The correct information
The Tribunal considers below the particular wording of the [third business] visa application form and the information that was given or omitted. At this point the Tribunal summarises the position in relation to the information that [the applicant] gave.
[The applicant] concedes that he did not give correct information in the visa application about [Child C]. This means that there was non-compliance in the way described in the s.107 notice, whatever conclusion the Tribunal may reach concerning the information that [the applicant] was the spouse of [Ms A].

[The applicant] maintains that in saying that he was the spouse of [Ms A] he gave correct information in the visa application form. For reasons to be given the Tribunal is not satisfied that he gave correct information. Further, the Tribunal is not satisfied that [the applicant] has given a credible or reasonable explanation for failing to give the correct information about [Child C] or his relationship with [Ms A].
Credibility
The Tribunal accepts that, for the purpose of s.5F at least, it is required to assess the subjective intentions of the parties.
Branson J made observations in Resham Singh at [13]-[14] that are important for the present case:
[The test - whether the parties have a mutual commitment to a shared life as husband and wife[3] to the exclusion of others -] involves consideration of issues known only to the parties to the relationship. The test will not be satisfied if either of them, at the time at which the matter has to be decided, lacks the necessary commitment. Because the test involves consideration of the subjective intentions of the parties to the relationship, issues of credibility assume particular significance. Such issues are crucial to a determination of whether or not what each party asserts about his or her commitment to the relationship can be accepted …
Of course, there may be objective facts consistent with a finding of such mutual commitment, or alternatively, tending to suggest against any such mutual commitment. Proof of such facts is likely to be of assistance to the [decision-maker] in reaching a determination as to whether or not the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
[3] The expression “married couple” rather than “husband and wife” now appears in the provision.
The assessment of [the applicant]’s credibility is important not only because the Tribunal must assess the claims he has made about his state of mind at material times but also because, related to that, the Tribunal must assess the genuineness of what he has said in attempting to explain statements he reportedly made at interview in December 2013 to the effect that by the time he applied for and was granted the [third business] visa his relationship with [Ms A] had ended and he was in a relationship with [Ms B].
The issues are not determined by [the applicant]’s oral and written statements alone.
For the most part [the applicant] gave oral evidence in December 2015 and May 2019 in a direct and straightforward manner. The Tribunal considers that there were some important instances when he did not do that, however. Those instances concern the reason for his failure to disclose [Child C] in the application for the [third business] visa and some points relating to the information given in the visa application that he was the spouse of [Ms A].
The Tribunal has noted the submission made in January 2016 that “[the applicant] confirms that he might have exaggerated the level of commitment he felt to [Ms B] in the early days prior to 2012” when he was interviewed in December 2013. For reasons that the Tribunal will give, the Tribunal considers that the problem is, rather, that in written submissions to the Department and the Tribunal, and in oral evidence to the Tribunal, [the applicant] understated the nature and degree of the commitment he had to [Ms B] at and prior to the time he applied for and was granted the [third business] visa.
Concerning the failure to disclose [Child C], the November 2015 submission stated that there was “a misread of the question as [the applicant] understood the question in the visa application form to relate only to children from his marital relationship and member[s] of [the] family unit of [Ms A]”. In December 2015 [the applicant] told the Tribunal that he thought the question was just asking him about his family with [Ms A]. He said that he always thought of his family as [Ms A] and him and their son: he did not “admit” [Ms B] as a member of the family, and the child he had with [Ms B] was “illegitimate”. [The applicant] denied that he was hiding information about [Child C] lest that lead to an inquiry about [Child C]’s mother. He referred to his hukou (household registration) which named him as husband and [Ms A] as wife and named their son. He said again that [Child C] was illegitimate and that if he had added [Child C] to the application it would have “ruined” his “previous” family. ([Mr D's] report indicates that [the applicant] said to [Mr D] as well that he misread the question about children). What [the applicant] said to the Tribunal in May 2019 was not quite the same. He gave evidence that [Ms A] was the primary applicant for the visa and that she was the one who filled out the forms. They applied for the visas as a family and at the time [the applicant] did not consider [Ms B] to be part of the family.
The Tribunal considers that [the applicant] gave inconsistent evidence about why he failed to disclose [Child C] in the visa application. The Tribunal does not accept his evidence about that. The form contained the simple prompt for [the applicant] to give details of all his children. English is not [the applicant]’s first language, of course. (In May 2019 he told the Tribunal that his study of English was limited and his reading of English is very poor). Nevertheless, it is significant that [Mr D] remarked that [the applicant] presented as being of above average intelligence. The Tribunal notes that [the applicant] is highly educated – he has postgraduate qualifications in China – and that he has conducted sophisticated business operations for years. It is also significant that, on the face of it, the application for the [third business] visa was made with the assistance of a registered migration agent. The Tribunal is not satisfied that it was misunderstanding by [the applicant] that led him to give incorrect information.
Similarly, the Tribunal does not accept [the applicant]’s evidence to the effect that he gave the Minister correct information that he was the spouse of [Ms A] because he considered himself to be her spouse. At one point – in the submission dated 5 January 2016 – it was submitted in effect that as [the applicant] did not perceive [Ms B] to be his spouse, or that their relationship was “marital in nature”, it was correct for him to describe himself as the spouse of [Ms A]. The submission stated that [the applicant] was of the view that “a marital relationship” exists only when two persons are legally married and upon one conferring on the other the authority to manage the parties’ financial affairs. [The applicant] said that [Ms A] had financial authority exclusively for a long time before they divorced. He emphasised that she retained assets far exceeding the property that [Ms B] had. The financial aspects of a relationship are only one matter to consider. The central question concerns [the applicant]’s commitment to [Ms A] at the material times. The Tribunal considers that the relationship [the applicant] had with [Ms B] – even if it did not involve aspects such as more or less constant cohabitation, or [Ms B] managing her and [the applicant]’s financial affairs – was such that it could not be said that [the applicant] had the commitment to [Ms A] required for him to be her spouse. There are “objective facts … tending to suggest against” [the applicant] having the necessary commitment to [Ms A], to adopt the words used by Branson J.
In the Tribunal’s view it is improbable - if [the applicant]’s family and friends came to know about [Child C] and [the applicant]’s relationship with [Ms B] not long after [Child C] was born - that [Ms A] would not have found out about that until several years later, which was the evidence [the applicant] gave. [The applicant] said that he thought he was able to keep things a secret because he was working in a different province to the province where [Ms B] was living and because [Ms A] and his eldest son were living in Australia. But [the applicant]’s evidence as to when it was that [Ms A] learned of the relationship with [Ms B] was contradictory. [The applicant] told the Tribunal in December 2015 that [Ms A] learned of his relationship about six months after the divorce. (The divorce was in early 2011). He said that [Ms A] became aware of [Child C] in 2015 when the visa was cancelled. (By the time the visa was cancelled [the applicant] and [Ms B] had added a second son to their family). [The applicant] said that he had not told [Ms A] about [Child C] because he did not want to upset her. He said that he initiated the divorce. His evidence about that was to the effect that he merely told [Ms A] that his relationship with her had failed. In contrast, in May 2019 [the applicant] told the Tribunal that [Ms A] learned of the relationship after his visa was cancelled. The Tribunal asked if he was sure about that. He said that he was sure, adding that at the time he applied to the Tribunal he needed [Ms A]’s help to prepare some of the documents. It was then that [Ms A] asked him why his visa was cancelled and he told her that his sponsorship of [Ms B] led to the visa cancellation. [The applicant] said that [Ms A] found out about [Child C] at about the same time. The Tribunal then asked [the applicant] to comment on the conflict in the evidence he gave in December 2015 and May 2019. He said that now that it was mentioned he realised that he made a mistake. He said that it was at about the time of the divorce that [Ms A] learned of the relationship with [Ms B] and that she learned about [Child C] after the visa was cancelled. The Tribunal then noted what [Mr D] wrote at paragraph [32] of his report: that [the applicant] and [Ms A] agreed to separate in early 2011 for financial reasons. They formally separated and agreed to divorce in mid-2011 “under circumstances where [Ms A] ascertained he was then having an extramarital affair with [Ms B] with whom he then had one son …”[4] The Tribunal noted that these were [Mr D's] words but that the report suggested that [the applicant] told [Mr D] that the divorce was brought about at least in part because [Ms A] had become aware he had a relationship with another woman. [The applicant] responded by saying that he did not think that was the case. He said that he and [Ms A] got divorced first and then she found out about “the affair”.
[4] The year appears to be incorrect because the divorce took place in January 2011.
These discrepancies undermine [the applicant]’s credibility in a general way.
It is not necessary for the Tribunal to consider whether [Ms A] may have been complicit in [the applicant] giving incorrect information in the [third business] visa application. If [Ms A] knew about [Ms B] and [Child C] during the period when the visa was applied for and granted that might lend support to a finding that [the applicant] was not her spouse at the time – because he, or even both he and she, lacked the required commitment to the other. But whenever it was that [Ms A] actually came to learn about [Ms B] and [Child C], the real issue is [the applicant]’s commitment to [Ms A] at the time.
The Tribunal mentions at this point that during the May 2019 hearing [the applicant] was vague about the amount of time he spent outside Australia from the time of [Child C]’s birth in [year] until the time he applied for the [third business] visa in December 2008 and was granted it in January 2009. He said too that he could not remember whether [Ms B] departed Australia alone or with him in February 2009. In response to the post-hearing s.359A invitation [the applicant] acknowledged that he and [Ms B] departed Australia together but said that he received an urgent call requesting him to return to his business in China. The Tribunal considers that the passage of time would not satisfactorily explain his oral evidence.
Further relevant case law
The representative submitted in effect that it would be wrong for the Tribunal to reason from [the applicant]’s conduct after he divorced [Ms A] – which conduct included going to live with [Ms B] - that he lacked the required commitment to [Ms A] at the time he applied for the [third business] visa and that visa was granted, so that he was not [Ms A]’s spouse at that time. The representative cited Bretag v MIMIA [1991] FCA 582. In Bretag the Court referred to MIEA v Pochi [1980] FCA 85, stating that evidence of the subsequent history is relevant only so long as it “tends logically to show the existence or non-existence of factors relevant to the issue to be determined”: at [12]. [The applicant]’s conduct since the grant of the [third business] visa may be considered. That includes [the applicant] having two further children with [Ms B]. The Tribunal considers that the evidence about [the applicant] going to live with [Ms B] and having two further children with her is relevant: it tends logically to show that [the applicant] lacked the required commitment to [Ms A] at the material times, when even then he had already had one child with [Ms B]. However, even without the evidence of the subsequent history, there is sufficient evidence to support the Tribunal’s conclusion – evidence about [the applicant]’s conduct from the time he met [Ms B] and evidence about what [the applicant] and others said at the time of the December 2013 interview about his relationship with [Ms B]. The Tribunal will summarise that evidence later in these reasons.
The representative also referred to the following observations by Riley FM, as she then was, in Cao v MIAC [2007] FMCA 225 at [42]-[43]:
In my view, the correct interpretation of the relevant regulations is that it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage-like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse.
It is a matter of common knowledge that there are people who remain in their marriages for 20 or 30 years or more but who nevertheless during that time have numerous, short term, extramarital sexual encounters involving no significant emotional investment. It is also a matter of common knowledge that, sometimes, a person has an extramarital affair which ends after a time and the marriage continues. In other cases, a person who has an extramarital affair eventually leaves the marriage and goes on to build a new life as husband and wife with the person with whom he or she had the affair. In such cases, there is obviously a point where the commitment to the first marriage ends. It is a matter for the Tribunal as the finder of fact to determine in all of the circumstances of the particular case whether or not an extramarital sexual encounter of one of the parties to a marriage reflects a lack of commitment to a shared life as husband and wife with the other party to the marriage, and whether or not it reflects the formation of a second marriage-like relationship.
Was there non-compliance as described in the s.107 notice?
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.101(b) and s.105(1)(a) in the following respects: providing incorrect information in the visa application that “he was married” when the spouse relationship had ended; failing to declare he had a son, [Child C]; and not correcting these incorrect answers.
In deciding whether there was non-compliance the Tribunal reiterates that [the applicant] concedes that he did not give correct information about [Child C]. This was non-compliance in the way described in the notice.
Whether there was non-compliance in the way described in the notice is less clear in the case of the information regarding [the applicant]’s relationship with [Ms A] for the NOICC itself is not as clear as it could be. The NOICC recorded that [the applicant] gave his current marital status as “Married”; that he was identified in the application as [Ms A]’s spouse; and that the application indicated that he had not “previously been married or in a de facto or interdependent relationship”. (The Tribunal will soon discuss the word “previously”).
In the primary decision it was stated that [the applicant] did not give correct information when he said that he was “married” and that in fact he was “separated”. [The applicant] was not divorced at the time so information that he was married could be considered correct, though whether he was “separated” in the relevant sense is not free from doubt. The NOICC and the primary decision do not clearly distinguish the statement that [the applicant] was married from the statement that he was the spouse of [Ms A]. The NOICC and the primary decision at least include statements to the effect that the information that [the applicant] was the spouse of [Ms A] was not correct. To that extent the Tribunal considers that there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice. But even if the Tribunal is wrong about that, there was non-compliance because [the applicant] did not disclose [Child C]. And the whole of [the applicant]’s conduct, including all his statements to the Department, is relevant to the exercise of the discretion.
There is something that ought to be said now about the application form and the information that was included in the form and that was omitted from the form.
The photocopy of the application form for the [third business visa] that is on the Department’s file is incomplete, unfortunately. But according to the primary decision the information given in the form includes that that [the applicant] was the spouse of [Ms A]. [The applicant]’s current marital status was given as “Married”. (The primary decision indicates that the option “Separated” was not selected. The representative submitted in effect that there was a time when [the applicant] and [Ms A] were separated in the sense that they were living in different countries but the marriage was ongoing and they were never living separately and apart on a permanent basis until 2010-2011. By implication at least this asserted that when [the applicant] was in Australia he and [Ms A] were in fact not living separately under one roof). [The applicant] was identified in the visa application as the “spouse” of [Ms A]. To the question whether he had “previously been married or in a de facto or independent relationship” there was the response “No”. There was a prompt in the form to give deals of all his children not already listed in the application form “(including from previous marriages/relationships)”. There was no answer given to that.
The word “previously” as it appears in the visa application form is unhelpful to the extent that it may be taken to refer to relationships that came into being before the visa applicant’s current relationship - as opposed to “other” relationships that came into being at any time before the date of the visa application. The evidence indicates that [the applicant]’s relationship with [Ms B] came into being after he and [Ms A] were married, not before. [The applicant] is not assisted by that. [The applicant] has conceded that the form contained incorrect information in that it did not disclose [Child C]. Whatever “previous” may mean in the context of the question about children, the form prompted [the applicant] to give details of all his children including from previous marriages/relationships. That clearly prompted him to disclose [Child C]. And any uncertainty about the meaning of “previous” in the broader context does not assist [the applicant] because he was identified in the form as the “spouse” of [Ms A].

[The applicant] denies that he failed to disclose [Child C] so as to avoid an inquiry about his relationship with the child’s mother. For the purpose of determining whether there was non-compliance it is sufficient to find, as the Tribunal does find, that by giving incorrect information [the applicant] did not comply with s.101. [The applicant]’s motivation is relevant when it comes to the exercise of the discretion. The Tribunal however does not accept [the applicant]’s explanation for not disclosing [Child C]. The Tribunal does not accept that the failure to disclose [Child C] was unrelated to the statement in the visa application that he was the spouse of [Ms A] for, obviously, any disclosure of a child other than a child he had with [Ms A] could only be expected to invite an inquiry about the mother of that child and [the applicant]’s relationship with that person, potentially jeopardising his prospects for obtaining a visa as a member of the family unit of [Ms A].
On the basis that the NOICC properly particularised as incorrect information the information that [the applicant] was the spouse of [Ms A] the Tribunal now proceeds to consider whether that ground of non-compliance is made out. In considering that, the Tribunal bears in mind the serious nature of the allegations and the gravity of the consequences.
A consideration of all of the circumstances of [the applicant]’s relationships at the material time – including the financial and social aspects of the relationship and the nature of the parties’ household and their commitment to each other – takes matters only so far. On the evidence before it, the Tribunal accepts – in particular - that during December 2008 to January 2009 [the applicant] and [Ms A] were legally married, they had a teenage son and they had joint assets. On the other hand, there are other relevant “objective facts”. The evidence indicates that [Ms B] was financially dependent on [the applicant] from 2003 or thereabouts. [Ms B]’s mother later came to live in [the applicant]’s property in Guangzhou. [The applicant] and [Ms B] had a son together in [year]. Property was purchased in their joint names in 2008. [The applicant] claims that most of his time in China between the time [Child C] was born and he applied for and was granted the [third business] visa was spent not with [Ms B] and [Child C] but in the province where he worked. Nevertheless, among other relevant matters, [the applicant] was outside Australia for approximately 28 out of those 32 months. [Ms B] arrived in Australia for a visit during the time the [third business] visa was under consideration. [Ms B] and [the applicant] spent some time together during that visit. [The applicant] now acknowledges that he departed Australia with [Ms B]. He claims that he received an urgent call about his business in China. Still it is significant that [Ms B] and [the applicant] left Australia together. That happened within a fortnight of the grant of the [third business] visa.
[The applicant] has made the point that over time he had female companions apart from [Ms B]. The question is not whether [the applicant] and [Ms B] had an exclusive relationship. The question is really whether - as Riley FM put it in Cao - [the applicant] and [Ms B] were in a “marriage-like” relationship so that it could not be said that [the applicant] had the necessary commitment to [Ms A].
As Riley FM noted, “it is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others”. [The applicant] has characterised his relationship with [Ms B] – prior to the time he divorced [Ms A] - as an extra-marital affair. He has said that “it was not even a serious love relationship”. In the submission dated 25 November 2015 it was stated that [the applicant] was always prepared to break up with [Ms B] if [Ms A] found out about the affair and that this displayed his lack of commitment to [Ms B] compared with [Ms A]. The submission further stated that [Ms B] accepted “the arrangement”. There is no direct evidence by [Ms B] before the Tribunal. Still the issue is [the applicant]’s commitment to [Ms A].
The Tribunal does not accept that [the applicant] told or meant to tell officers of the Department when he was interviewed in December 2013 merely that he argued with [Ms A] in 2001, for the primary decision records that he also reportedly said that his relationship with [Ms A] was maintained for the sake of their son. Similarly, the Tribunal does not accept what [the applicant] and [Ms A] have said to try to explain [the applicant]’s statements about them staying in separate rooms. The statements reportedly made at interview are clear. Even if [the applicant] did not say or did not mean to say that the relationship with [Ms A] broke down in 2001 there is a considerable amount of other evidence to indicate that his commitment to [Ms B] was such that by 2008 he lacked the necessary commitment to [Ms A]. The Tribunal has already referred to the evidence but now summarises the most important evidence.
[The applicant] and [Ms B] had a child together in [year]. [The applicant] reportedly told officers that while his family knew he and [Ms B] were not married he agreed that the birth of [Child C] was like a marriage certificate. By the time [Child C] was born, for years [Ms B] had been financially dependent on [the applicant]. He did not only support her. He supported her family. He allowed [Ms B]’s mother to live with her in his property. In the Tribunal’s view [the applicant] has understated the significance of everything he did in relation to [Ms B]’s father’s funeral and that he did for [Ms B] and her mother. Whatever the precise cultural significance of the 100 Day party for [Child C], and while [Child C] – rather than the parents’ relationship - may have been the focus of the event, it is noteworthy that members of both families and friends of both parties attended. Thus there was significant social recognition of the relationship. Even if he may not always have been in Guangzhou with [Ms B] and their son, and even if his business interests required him to be in China, [the applicant] spent a substantial amount of the time in China rather than in Australia – especially from [year] when [Child C] was born. [The applicant] and [Ms B] travelled abroad together on numerous occasions from 2005 or thereabouts. [Ms B] had accompanied [the applicant] when he went out with friends. They bought a property in 2008. In December 2013 [Ms B]’s mother told an officer of the Department that she believed that [the applicant] and [Ms B] were married and that they had been together for over 10 years. What she said is significant even if she was mistaken about any actual marriage.
Notwithstanding this evidence, [the applicant] claims that he remained committed to [Ms A]. The evidence indicates something much more than “mere” infidelity. The Tribunal does not accept that [the applicant] had the commitment required for him to be the spouse of [Ms A].
In her statutory declaration, [Ms A] stated that she and [the applicant] had a strong and loving relationship until the end of 2010 when the relationship broke down and they agreed to divorce. Whatever [Ms A]’s commitment may have been, the Tribunal does not accept that [the applicant] had the commitment required for him to be the spouse of [Ms A].
The statements by [Mr E] and [Mr F] do not lead the Tribunal to make different findings. The statements are somewhat vague. Even if [the applicant] spent much of his time alone in Jiangxi the whole of the evidence indicates that he was nevertheless in a marriage-like relationship with [Ms B] and lacked the necessary commitment to [Ms A] at the material time.
There was evidence that in her applications for tourist visas [Ms B] always declared that she was single. [Ms B]’s visa applications are not before the Tribunal and [Ms B] did not give evidence. If [Ms B] did always declare herself as single, the basis on which she did that, and her motivation for doing that, might be relevant. But still the issue is [the applicant]’s commitment to [Ms A]. The evidence about [Ms B]’s tourist visa applications does not cause the Tribunal to make different findings.
For the reasons the Tribunal has given, the Tribunal considers that at the time [the applicant] applied for and was granted the [third business] visa, his relationship with [Ms B] was a “marriage-like” relationship and that, whatever [Ms A]’s state of mind was, [the applicant] did not have the required commitment to [Ms A]. This means that the information in the visa application that [the applicant] was the spouse of [Ms A] was incorrect information.
[The applicant] did not notify an officer of the Department in writing of the incorrectness and of the correct answers.
The Tribunal therefore finds that there was non-compliance with s.101 and s.105 by [the applicant] in the way described in the s.107 notice.
Should the visa be cancelled?
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).
The Tribunal notes before proceeding that there have been material changes in [the applicant]’s circumstances since his visa was cancelled in 2015 and the Tribunal affirmed the decision to cancel the visa in 2016. [the applicant] has returned to China. (He told the Tribunal that the circumstances were that his father was unwell at the time). [the applicant] and [Ms B] have had a third child. [the applicant]’s property and business interests in Australia have changed. Some of the submissions concerning the discretion are therefore no longer relevant.

100. In exercising the power to cancel the visa, 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 r.2.41 of the Regulations. Briefly, they are:
· the correct information

· the content of the genuine document (if any)

· 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

· the circumstances in which the non-compliance occurred

· the present circumstances of the visa holder

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

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

· the time that has elapsed since the non-compliance

· any breaches of the law since the non-compliance and the seriousness of those breaches

· any contribution made by the holder to the community.

101. 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 Procedural Instructions ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
102. The Tribunal has summarised the response to the NOICC. The Tribunal has considered the response.
103. The correct information is, first, that [the applicant] was not the spouse of [Ms A] at the material times and, secondly, that he had a son, [Child C], who was not his and [Ms A]’s child but was his and [Ms B]’s child. The main relevance of the information about [Child C] is that if [the applicant] had disclosed the information about [Child C] it would likely have led to an inquiry about the relationship he had with [Ms B]. The Tribunal considers that the provision of the incorrect information that he was the spouse of [Ms A] and that his only child was the child he had with [Ms A] was a serious act of non-compliance. This weighs in favour of cancelling the visa.
104. The second prescribed circumstance is not applicable.
105. In the submission dated 25 November 2015 it was said not to be disputed that the decision to grant the [third business] visa to [the applicant] was based on the “fact” that he was the spouse of [Ms A]. The Tribunal has found that the information that he was the spouse of [Ms A] was incorrect information. The Tribunal finds that the decision to grant [the applicant] the [third business] visa was based wholly or partly on the incorrect information. The decision to grant the visa can only have been based that information. This weighs in favour of cancelling the visa.
106. The circumstances in which the non-compliance occurred were that [the applicant] was in a relationship with [Ms B] when he gave information to the Department that he was the spouse of [Ms A] and that he had a child with [Ms B] that he did not disclose to the Department. This weighs in favour of cancelling the visa.
107. [The applicant]’s present circumstances are that he and [Ms A] are divorced. [The applicant] is in China with [Ms B] and the three children they have had together. His parents and siblings are also there. At the time of the May 2019 hearing [Ms A] and the son [the applicant] had with her were also in China. That son has reached adulthood. [The applicant] owns property in Melbourne and has business interests in Australia. He has the desire to pursue further business interests here. He wants some or all of his children to attend school in Australia. ([The applicant] told the Tribunal about specific plans he has made for his children to be educated in private schools in Melbourne). The Tribunal considers that these circumstances are insufficient for the visa not to be cancelled given the seriousness of the non-compliance.
108. Subdivision C of Division 3 of Part 2 of the Act is headed “Visas based on incorrect information may be cancelled”. It includes the requirement that a non-citizen who becomes aware that an answer given in his or her visa application form was incorrect when it was given must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. [The applicant] responded to the NOICC. He has acknowledged that the correct information was that he had a son, [Child C], but he has never acknowledged that the correct information was that he was not the spouse of [Ms A]. Therefore [the applicant]’s subsequent behaviour concerning his obligations under the Subdivision has some weight in favour of cancelling the visa.
109. The delegate noted that there are no known other instances of non-compliance by [the applicant] known to the Minister. This has some weight against cancelling the visa.
110. Ten years have elapsed since the non-compliance. There have been the significant events in [the applicant]’s life that the Tribunal has noted. The Tribunal considers that the circumstances are insufficient for the visa not to be cancelled given the seriousness of the non-compliance.
111. The delegate noted that there are no known breaches of the law by [the applicant]. This has some weight against cancelling the visa.
112. Concerning whether there has been any contribution made by [the applicant] to the community, the submission made in July 2015 mentioned a number of development and rental properties in Australia that [the applicant] had an interest in. It was submitted that the properties were providing and would provide accommodation to Australians and reduce the housing shortage. There was information given in relation to [the applicant]’s companies and his business partners and their ventures. The submission stated that it was to be expected that [the applicant] would engage in more business activities and provide more economic benefits to Australia if the visa were not cancelled. By the time of the May 2019 hearing, however, [the applicant]’s properties and business interests in Australia had substantially reduced. The Tribunal considers below [the applicant]’s proposed investment in [a specified] business in Australia. This factor has moderate weight against cancelling the visa.
113. The Tribunal now considers the factors set out in policy.
114. There are no persons in Australia whose visas would, or may, be cancelled under s140 of the Act. The primary decision recorded that as [Child C] was granted a Child visa “because of” [the applicant] his visa would be considered for cancellation under s.140(2). By implication the decision indicated that cancellation of [Child C]’s visa would keep the family together. [Child C] has spent a period of time in Australia but he is now in China with [the applicant]. The whole of [Child C]’s immediate family – [the applicant], [Ms B] and [Child C]’s brother and sister – are in China. The possible consequences for [Child C] of [the applicant]’s visa being cancelled are therefore not what they might have been at the time when [the applicant]’s visa was cancelled. This factor has limited weight against cancelling [the applicant]’s visa.
115. There would be no basis for any claim that Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation. [The applicant] has already departed Australia. [The applicant] did not ever claim that he faced the possibility of persecution or other mistreatment in China. [Ms B] and the children are in China. Cancellation of [the applicant]’s visa will not lead to separation of family members. Cancellation will mean that the family may not be able to achieve the goal of living in Australia, with the children being educated here, but in all the circumstances of the case this does not have such weight that the visa should not be cancelled.
116. When [the applicant] was onshore it would have been relevant to consider matters such as his liability to be detained and removed from Australia, or the effect of s.48 of the Act. But [the applicant] departed Australia about two years ago. At the time he held a Bridging E visa.
117.   There are other relevant matters to consider, including the degree of hardship that may be caused to the visa holder and any family members.
118. [Mr D] noted in his report that [the applicant] had never sought any mental health treatment. He said that he did not assess [the applicant] as having any major mental health problem although [the applicant] acknowledged during the consultation that he was feeling very stressed about his “immigration situation”. [Mr D] expressed the opinion that [the applicant] was at risk of developing an Adjustment Disorder with Mixed Anxiety and Depressed Mood in relation to his situation. He expressed the further opinion that [the applicant]’s mental health would “definitely deteriorate further” if the visa cancellation were not revoked. [the applicant] departed Australia about two years ago. Giving oral evidence to the Tribunal in May 2019 [the applicant] confirmed that he has never consulted a mental health practitioner apart from [Mr D]. He confirmed that he has never sought or obtained any counselling or treatment for any mental health condition apart from seeing [Mr D] for what he described as counselling.
119. The concern that [Mr D] expressed over three years ago that [the applicant] could develop a major mental illness has fortunately not been borne out by events. It cannot be said therefore that his children have suffered the consequences of him suffering serious mental ill health. On the available evidence it appears speculative that cancellation would have serious adverse consequences for [the applicant]’s mental health and so his capacity to care for his children. The Tribunal nevertheless accepts that [the applicant], if not also [Ms B] and their children, will suffer disadvantage if the visa is cancelled to the extent that [the applicant]’s business plans and the plans he has for the children’s education in Australia may not be realised. This factor has some weight against cancelling the visa, but in the Tribunal’s view it is outweighed by the factors that weigh in favour of cancelling the visa.

120. It was submitted that if [the applicant]’s visa were cancelled Australia would lose a significant advantage. At the May 2019 hearing [the applicant] gave evidence that when he was living in Australia he visited Tasmania where he explored investing in [a specific] farm. He also proposed setting up a “first class restaurant” in Melbourne that would specialise in [certain food]. The restaurant was to showcase [specific food] for the Chinese market. [The applicant] said that he was about to start that business but his bridging visa would not permit him to do that. [The applicant] said that if his visa had not been cancelled the business would be operating successfully by now. He said that that he would still be interested in the business if he had the visa. In the submission dated 30 May 2019 it was said that [the applicant] considered that it was not “viable” for him to invest in a business if he could not visit the business sites and monitor operations. The submission was accompanied by material including a letter dated 30 May 2019 by [Mr G], the lawyer for the company with the relevant lease and licence for the farming operations. [Mr G] stated that [the applicant] visited Tasmania twice to assess possible investment. He said that discussions with [the applicant] are ongoing and that he, [Mr G], was instructed to encourage the discussions, in the expectation that there may be commercial dealings between the company and [the applicant].
121. The Tribunal accepts that [the applicant] demonstrated serious interest in the venture when he was in Australia. It is not clear whether there have been significant if any discussions in the two years since [the applicant] left Australia. Whether there have been such discussions, and whatever the content of the discussions may have been, the submission and [Mr G]’s letter do not enable the Tribunal to be satisfied that without [the applicant]’s physical presence in Australia, or without [the applicant]’s investment (as opposed to investment by some other person), the venture would not be able to proceed. The Tribunal considers that this circumstance carries insufficient weight for the visa not to be cancelled.
CONCLUSION
122. In summary, the Tribunal finds that the grounds for cancelling [the applicant]’s visa exist. The Tribunal considers that [the applicant]’s non-compliance was serious. The Tribunal is not satisfied that the non-compliance was unwitting. Considering all relevant factors, the Tribunal has concluded that discretion should be exercised to cancel the visa. Put another way, the Tribunal has decided that there was non-compliance by [the applicant] in the way described in the notice given under s.107. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
123. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
John Billings
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

105Particulars of incorrect answers to be given
(1)If a non‑citizen becomes aware that:
(a)      an answer given or provided in his or her application form; or
(b)     an answer given in his or her passenger card; or
(c)      information given by him or her under section 104 about the form or card; or
(d)     a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2)Subsection (1) applies despite the grant of any visa.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

107A Possible non‑compliances in connection with a previous visa may be grounds for
         cancellation of current visa
                   The possible non‑compliances that:
(a)may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
                include non‑compliances that occurred at any time, including non‑compliances in respect of any
                previous visa held by the person.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 2754

28 June 2019

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