1804105 (Migration)

[2019] AATA 4659

1804105 (Migration) [2019] AATA 4659 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804105

MEMBER:Rosa Gagliardi

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 Partner (Residence)(Class BS) visa.

Statement made on 28 May 2019 at 12:43pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – sponsor’s permanent visa cancelled – bogus documents – applicant returning to China as a single mother – applicant not complicit in husband’s fraud – family violence – access rights to the child – strong network of family and friends in Australia – education – citizenship of the child – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 109, 140

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 November 2017 to cancel the applicant’s Subclass 801 Partner (Residence) (Class BS) visa under s.109 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was granted a visa only because her former husband, [Mr A], was granted a visa and his visa was cancelled by the Department because he conducted himself fraudulently in respect of his IELTS test for his Subclass SI Skilled visa. On 15 October 2018 the Tribunal, differently constituted, affirmed the Department’s decision to cancel [Mr A]’s visa. As the applicant was a member of his family unit at the time, her visa was consequentially cancelled under s.140(2) of the Migration Act.

3. The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [Relative A, named] and from [a named] friend.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant first visited her then husband, [Mr A], in Australia [in] December 2012 on a Visitor (subclass 600) visa and stayed for some nine weeks until returning to China [in] February 2013.  At the time [Mr A] was studying a [course] at [a named] University.  On completion of his studies [Mr A] applied for a Skilled Independent (subclass 189) visa in February 2014 and this was granted to him on 22 July 2014.

7. The applicant submits that she was aware that [Mr A] had applied for permanent residence, however, she did not know what the visa requirements were and did not know about [Mr A]’s ability to meet those requirements.

8. The applicant returned to Australia [in] July 2014 to visit [Mr A].  Their relationship at that stage had progressed and they decided to marry [in] September 2014.

9. It is claimed that initially the relationship was a positive one.  On 18 November 2014, [Mr A] sponsored the applicant for an onshore Partner (subclass 820/801) visa on the basis of their spousal relationship.  The temporary Partner (subclass 820) was granted on 5 August 2015, and the permanent Partner (subclass 801) was granted on 14 November 2017.

10. On [date] the applicant gave birth to the couple’s son, [named].  Following the birth of her son the couple’s relationship began to falter.  The situation became worse when the applicant saw [Mr A] out with another woman and found he had been messaging another woman.  The applicant became depressed and sad and reacted in shock but she wanted to remain in the marriage for the sake of their child.  She was on a mental health plan and sought counselling.

11. Ultimately the applicant was compelled to leave the marriage when an incident took place [in] December 2017, involving family violence. The applicant phoned the police and [Mr A] was charged with assault and an intervention order was issued by the Magistrates Court against which was in place until [December] 2018.  The parties have been separated since

    
    

    [a date in] December 2017.

12. [Mr A] is permitted to spend time with their young son and it is argued that he continues to be involved in the child’s life as his father.

13. The applicant argues that when [Mr A]’s Skilled Independent (subclass 189) visa was cancelled under section 109 on the basis that he had intentionally provided bogus documents in breach of section 103 of the Act, and provided incorrect answers in his Skilled Independent (subclass 189) visa application, the applicant was shocked as she was not aware that [Mr A] had engaged in such conduct.

14. The applicant has argued that she is now anxious about her future and worries about the impact of her marital separation and immigration status on her son.

    Relevant legislation

15. Section 140 of the Migration Act provides that:

    If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled. 

    (2)  If:

    (a)  a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

    (b)  another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

    the Minister may, without notice to the other person, cancel the other person's visa.

    (3)  If:

    (a)  a person's visa (the cancelled visa) is cancelled under any provision of this Act; and

    (b)  the person is a parent of another person; and

    (c)  the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

    the other visa is also cancelled.

    (4)  If:

    (a)  a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and

    the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;

    the cancellation under subsection (1), (2) or (3) is revoked.

16. The Tribunal notes that there are no legislative grounds that the decision must take into account before deciding whether to cancel a person’s visa under s.140(2). However, it is policy that decision makers consider the following matters before making a decision to cancel a visa under s.140(2).

    The purpose of the visa holder’s travel to and stay in Australia

17. The applicant came to Australia to be with [Mr A] with who she would later marry and start a family with.  The Tribunal does not have any evidence before it that the applicant has fallen foul of Australia’s immigration laws during any period she remained in Australia.  Further, the Tribunal does not have concerns that the applicant entered into the relationship for the sole purpose of achieving a migration outcome.  The evidence would indicate that she entered the marriage in good faith as did [Mr A], despite its dissolution in difficult circumstances for the applicant.

18. The Tribunal also accepts that the applicant did not have any part in the fraud perpetrated by [Mr A] in respect of his Skilled Independent visa.

    The degree of hardship that may be caused to the visa holder and any family members

19. It is argued that the degree of hardship that may be caused to the applicant and her Australian citizen son is severe and a factor that should weigh heavily in the decision as to whether or not to cancel her visa. 

20. The Tribunal takes into account that it is now almost 5 years since the applicant has been living in Australia and that it was her intention to build a life and family here.  She has worked to build a home for herself and her son and has been working full-time earning an income to support her family.  A reference has been provided by her employer indicating that the applicant was hard working and highly regarded [in her position].

21. The applicant has also argued that she has not worked in China previously and would struggle to take care of her son and find full-time work which she could maintain along with her parental responsibilities.  The applicant also has a fear that her status as a single mother in China will involve serious hardship and discrimination as the government provides little support for women in her circumstances.  She also fears the shame and embarrassment of returning to her family if she were to return to China as a divorcee with a young child.  She considers that the societal judgement of her would be significant and she fears she would have nowhere to live.  Returning to her parental home in China would be difficult with a young child as her mother is living with her elderly paternal grandfather.

22. The Tribunal has also taken into account the psychologist’s [report], dated 14 October 2018 referring to the high levels of anxiety and depression (including post-natal depression) experienced by the applicant as she tries to continue to work to provide for her child.  [the psychologist] states that in her assessment the applicant is suffering from a major depressive episode as outline in the DSM-V.

23. The Tribunal has taken into account these difficulties, including the arguments that the applicant has a strong network of family and friends in Australia, and places weight on these arguments.  On the other hand, the applicant’s son’s father, [Mr A], has access rights to the child and [Mr A]’s future may be in China given the cancellation of his visa, so while the couple are estranged, the child at least in Australia has a relationship with his son and there would be no reason to consider that this relationship would not continue were the applicant and child to return to China, as it is presumed that [Mr A] will also have to do.  The applicant’s son’s right to have a relationship with his father is dealt with in more depth below.

    The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa).

24. In terms of [Mr A]’s conduct toward Australia’s migration laws, the Tribunal finds that there were no extenuating circumstances that would have driven him to fraudulently obtain a visa in circumstances where he might not otherwise have had one.  His conduct was a deliberate act to undermine Australia’s migration regime and attain for himself a migration outcome.  The Tribunal accepts, however, that during the processing of that application the applicant was in China and was unaware of any or the extent of the fraud perpetrated by [Mr A].  There is little to indicate that the applicant was complicit in any such fraud. 

25. In this regard the applicant is herself a victim of [Mr A]’s conduct and now finds herself carrying the burden of the consequences of his visa cancellation along with her young son who is not in a position to argue any case for himself.

    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions). 

26. The Tribunal reiterates that the Tribunal does not have any evidence of malfeasance towards the Department of Home Affairs in the past or currently by the applicant herself.

    In the case of a permanent visa, the links that the person may have made to the community, for example, the strength of family, social, business and other ties in Australia

27. The Tribunal places weight on the fact that the applicant has spent almost five years in the Australian community and has developed strong links through her employment, social and family ties.  Her [Relative A and family] live in [Australia] and are of support to the applicant and she has Australian permanent residents/citizens as friends in Australia. 

28. Further, the Tribunal has also taken into account that the applicant has maintained a strong record of employment in Australia working as a full-time [position] at [a workplace] from January 2015 until August 2018, when she moved to work as a full-time [position] at [her current employer].  She holds [specified qualifications] and considers that she has the qualifications and work experience to continue to make a contribution to Australian society. 

29. The applicant’s son, [named], has been attending [a centre for] Early Learning since [June] 2017 and his connection to Australia outweighs any connection he would have to any other country.  Indeed Australia is the only country he has ever known.

30. The Tribunal is of the view that the applicant and her son have integrated into the Australian way of life and that their links to the community are of benefit to Australia.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation-as two examples:

    -If there are children in Australia whose interests could be affected by the cancellation, decision makers are obliged to treat as a primary consideration the best interests of the children;

    -Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where the person faces persecution, arbitrary deprivation of life, the death penalty, torture, cruel, inhuman or degrading treatment or punishment.

31. The Tribunal accepts that, even if the applicant’s former husband is returned to China, and his son will have access to his father, the applicant’s status will be as a single mother who will have primary care for her child.  Furthermore, the Tribunal has taken into account that she would need to live with her mother (her father is now deceased) and grandfather and access to the kind of work she is currently undertaking here in Australia would be uncertain in China.  She might therefore be deprived of a means of making a living for herself and her child.  In addition, the child would be adversely affected as the education system in Australia is qualitatively different in that it allows for analytical thinking rather than rote learning and the applicant’s son would be deprived of the opportunity to thrive in a more libertarian environment. 

32. The applicant’s son, [named], is an Australian citizen child whose life would be dramatically different if he were to grow up in China with his mother who has experienced mental health difficulties and is vulnerable.  The Tribunal accepts that [the applicant’s son’s] development could be adversely affected as the applicant’s capacity to care for him appropriately could be compromised if her depression is not treated and the applicant and her son are returned to China. 

33. The applicant’s [Relative A] wrote to the Tribunal in a letter dated 26 June 2018 stating, among other things, “If [the applicant’s son] goes back to China, he will not be eligible to enjoy free public social health insurance or public education system in China.  That means, [the applicant] must pay extreme high tuition fee to enrol [her son] in private school as international student in China, which is no doubt making her financial situation worse”. 

34. The applicant has also sought legal advice from a Chinese firm regarding what [her son’s] status in China would be given he is not a Chinese national.  The advice refers to [the applicant’s son] needing to obtain a subclass Q visa to enter China as a Visitor and he that he would need to apply for a temporary residence permit frequently to make sure he is a lawful non-citizen during his stay in China.  It is also advised, that he would be unable to apply for a permanent residence permit.  In terms of whether a child in the applicant’s son’s position would have the same rights as a Chinese national child, the lawyers have advised, “Foreign children residing in China are not treated like Chinese national children because they do not have Chinese Nationality” and he would need to forego his Australian citizenship.  The Tribunal considers that relinquishing his Australian citizenship and not being able to attend government subsided schooling would place significant hardship on [the applicant’s son].

35. [Ms B], Child Protection Operations Unit, Department of Health & Human Services, has prepared a report dated [in] August 2018, stating, among other things, that Child Protection holds concerns for “the safety, stability and development of [the applicant’s son] if [the applicant] was to be deported.  The consequences to [the applicant’s son] would be extreme and not in the best interest of the child under section of the Children, Youth and Families Act (2005).  There are further implications for [the applicant’s son] if he were to be uprooted from his current environment and return to China with [the applicant], given his Australian citizenship”. 

36. The Tribunal is satisfied that in terms of [the applicant’s son’s] future he undoubtedly would have better access to services and stability in Australia.  The Tribunal’s finding in favour of the applicant’s son is, however, tempered by the Tribunal’s concerns that the applicant’s child in remaining in Australia will not have access to his father who may return to China.  In her report to the Tribunal, [Ms B] has written that the reason the applicant referred herself to the Child Protection Operations Unit is because of the cancellation of the visa and not because she now held concerns about her safety or that of her child.  [Ms B] wrote, “[In] March 2018, child protection closed their file in relation to [the applicant’s son] given that he was not at imminent risk of harm and appropriate referrals for [the applicant] were made and [Mr A] was engaging with support services”.  It appears that [Mr A] was ordered to undergo a diversion program and to participate in a Men’s Behaviour Change Program, write a letter of apology to the applicant and pay a [specified] fine.  When [Ms B] spoke to [Mr A] he confirmed he was undertaking the programs and was remorseful in relation to the family violence incident and stated that he needs to learn how to be less reactive.  [Ms B] wrote, “[Mr A] also presented as open and spoke with concern regarding the impact on [their son] and [the applicant], and referred to her as the ‘innocent party’”.

37. The Tribunal accepts that while [the applicant’s son] may not be at “imminent risk”, [Mr A]’s actions towards the applicant are inexcusable and repugnant.  Nonetheless, the Tribunal cannot overlook that in making this decision, and on the presumption that [Mr A] returns to China, [the applicant’s son] will not have the opportunity to develop a close relationship with his father, although there would be nothing preventing the applicant from visiting China for her to son to maintain more regular contact with [Mr A]. 

38. Having taken into consideration all of the circumstances of [the applicant’s son], however, the Tribunal finds that the net benefit to him of remaining in Australia, outweigh any concerns about his having less of a bond with his father were [Mr A] to have to leave the country.

    The impact of cancellation on any victims of family violence, if family violence is a factor

39. The Tribunal accepts that the applicant sees herself as a victim of unfortunate circumstances where her former husband not only concealed from her that he had been granted a visa on a false premise, he also perpetrated family violence on her.  The Tribunal has sighted the evidence regarding her vulnerability due to suffering from Major Depression and her concern for the welfare of her son, [named], were they to have to leave Australia.

1. [Ms B] from the Child Protection Operations Unit wrote in her report of [August] 2018, “…it is assessed by Child Protection, [the] Police and [the] Magistrates Court that [the applicant] is a victim of family violence and as such has suffered ‘family violence’ as defined under section 4AB of the Family Law Act”.  She further advanced, “Unfortunately, child protection are seeing more situations where women on partner visas are having their visa cancelled as a result of family violence whereby the threat of the cancellation is also used as a form of family violence.  Consequently, preventing women from reporting the violence, not seeking support and assistance with further impacts on the safety and development of children.  The impact of family violence on children is well researched and documented as outlined in the Royal Commission into Family Violence”.  In the case of the applicant, she did take steps to report the matter and pursue avenues to keep herself and her child safe.

2. The psychologist’s report makes it clear that the applicant’s mental health has been compromised as a result of the family violence she was subjected to, and that as a single woman in China with mental health difficulties she would falter in caring for herself and her child.  The Tribunal places significant weight on these matters.

3. Having assessed the circumstances of the applicant and her child individually and cumulatively the Tribunal considers that the applicant’s visa ought not be cancelled.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 Partner (Residence)(Class BS) visa.

   Rosa Gagliardi
   Member