1917883 (Migration)

1917883 (Migration) [2020] AATA 1237 (18 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1917883
MEMBER:Adrienne Millbank
DATE:18 February 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.
Statement made on 18 February 2020 at 3:23pm

CATCHWORDS
MIGRATION – cancellation – Subclass 155 (Five Year Resident Return) visa – applicant provided incorrect information – contrived marriage – bogus documents related to the conception and parentage of her daughter – unreliable witnesses – applicant admitted to the non-compliance – decision to grant the visa was based on the incorrect information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 101, 103, 107, 109, 359AA
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
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 by a delegate of the Minister for Immigration on 2 July 2019 to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).
The visa holder was born in China in [year] and is [age] years old at the time of decision. She first arrived in Australia [in] October 2010 on a Prospective Marriage (Subclass 300) visa. She was granted a Partner (Subclass 820) visa on 30 June 2011 and a Partner (Subclass 801) visa on 24 May 2013.
The visa holder’s sponsor was born in Australia in [year] and is [age] years old at the time of decision.
The parties claim they were introduced by friends in China in April 2007 and entered into a committed relationship in March 2009. They married in Queensland [in] March 2011. The sponsor claimed one previous marriage, from which he has three adult children. The visa holder claimed no previous relationship.
The delegate cancelled the visa on the basis that the visa holder did not comply with s.101(b) because she provided incorrect information with her applications for the Prospective Marriage (Subclass 300) visa and combined Partner (Subclass 820/801) visas she was granted. A copy of the delegate’s decision was provided to the Tribunal.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa holder’s husband in Australia; the father of the visa holder’s child in China; and three daughters and two friends of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.
Pursuant to s.359AA of the Act, the Tribunal advised the visa holder that it had information that would lead or could contribute, subject to her comments in response, to the decision under review being affirmed. The Tribunal advised that this information was in the form of a Departmental file note made in August 2018 expressing ‘great concern’ that the relationship between the visa holder and the sponsor was contrived for the purpose of acquiring an Australian permanent residence permit. The information was relevant because it supported a finding that the visa holder was not in a mutually committed and exclusive relationship with the sponsor at the times of her visa applications. The Tribunal advised the visa holder that she could request time to consider her response to the information or to any other information and concerns raised by the Tribunal during the hearing, and consult with her representative before responding.
The visa holder did not seek an adjournment. She stated that her relationship with her husband was genuine and continuing; that the only misinformation and bogus documents the parties knowingly provided to the Department were those related to the conception and parentage of her daughter; that they regretted any ‘mistakes’, and that the evidence she was providing to the Tribunal was truthful. The Tribunal has considered this response.
The Tribunal advised the visa holder during the hearing that if it found her not to be forthcoming and truthful in the testimony she provided, it might find her an unreliable witness and not accept her evidence as credible.
There was one adjournment during the hearing because the hearing went longer than the anticipated three hours and another interpreter had to be obtained.
On 22 January 2020 the Tribunal received a post-hearing submission from the parties’ representative arguing that the visa holder was remorseful and apologetic about the provision of incorrect information; that the visa holder’s relationship with the sponsor was genuine; and that the parties should not be punished for what was a ‘misunderstanding’. The Tribunal has considered this submission.
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
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. 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.
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, which requires visa applications to be correct.
As noted, the delegate found possible non-compliance with s.101 in the visa holder’s applications lodged for a Prospective Marriage (Subclass 300) visa granted 2 August 2010, and in the combined Partner (Subclass 820/801) visas granted on 30 June 2011 and 24 May 2013. In summary, the delegate found the applicant’s claim not to have been in a de facto relationship before her relationship with the sponsor was incorrect, as she appeared to have been in a relationship since 2003 with a Mr [A], born in [year], resident of the visa holder’s hometown of [Town 1] in Hunan Province, and father of her daughter born in [Town 1] on [date].
Further, the sponsor’s declarations in his sponsorship forms that the parties committed to a spouse relationship in March 2009 and commenced a married relationship [in] March 2011 were incorrect as, according to information provided by Mr [A] in an interview on 16 August 2018, the visa holder was in a committed relationship with him at these times. Based on these findings the delegate considered the visa holder’s relationship with her sponsor at the time of her applications for her Prospective Marriage (Subclass 300) and Partner (Subclass 820/801) visas ‘might not have been one of a couple who had a mutual commitment to a shared life to the exclusion of any other spouse relationships or any other de facto relationships’.
In the Notice of Intention to Consider Cancellation (NOICC) dated 8 April 2019 (the s.107 notice), the delegate noted that the visa holder provided a relationship statement with her Prospective Partner (Subclass 300) visa application in which she provided the following information:
·She met the sponsor in Shenzhen in April 2007.
·The sponsor returned to China in July 2007. She fell in love with him at this time and introduced him to her family.
·In September 2007 after discussion with her sponsor she decided to purchase an apartment in her home town in Hunan.
·She moved into the property in July 2008 and the sponsor visited her at regular intervals.
·In July 2009 the sponsor proposed marriage.
·The parties planned to marry in February 2010.
The particulars of the claimed non-compliance
In response to the question on the application forms ‘Have you or any other person included in this application ever been refused an entry permit to Australia?’ the visa holder answered ‘No’. The visa holder had, however, lodged an application on 3 April 2008 for a Tourist (Subclass 676) visa for the purpose of visiting her now husband. The application was refused on 11 April 2008 for the reasons that the delegate was not satisfied that the applicant had a genuine intention to return to China.
In response to the questions in the application forms ‘Have you ever been in a de facto spouse relationship before?’ and ‘Have you ever been in a same-sex or opposite sex de facto spouse relationship before? the visa holder stated ‘No’. In response to the question:
When did you and your partner make the decision that you both:
(a) wanted to commit to a long-term spouse or interdependent relationship; or
(b) intended to marry each other?
the visa holder stated ‘March 2009’. In response to the question on his sponsorship form:
When and where did you begin a married or de facto relationship with your partner? A spouse or de facto relationship is a relationship between a couple who have a mutual commitment to a shared life to the exclusion any other spouse relationships or any other de facto relationships … The relationship between then is genuine and continuing and they live together; or do not live separately and apart on a permanent basis,
the sponsor stated ‘[date] March 2011’, the date of the parties’ marriage.
The delegate noted in the NOICC that the visa holder departed Australia for the following periods: [November] 2010 to [December] 2010; [January] 2011 to [February] 2011; [May] 2011 to [June] 2011; [September] 2011 to [December] 2011; [February] 2012 to [March] 2013; [June] 2013 to [August] 2013; [April] 2014 to [July] 2014; [October] 2014 to [March] 2015; [March] 2016 to [August] 2016; [September] 2016 to [April] 2017; [February] 2018 to [March] 2018; [November] 2018 to [December] 2018. The delegate noted that the visa holder’s sponsor travelled with her only once during the above periods, [in] April 2017, on a return flight from [Country 1]].
On 19 April 2017 the visa holder lodged an application for Citizenship by Descent for her daughter born in China on [date]. As set out in the delegate’s decision, in this application the visa holder declared the sponsor was the father of her daughter. A birth certificate was provided certifying that the sponsor was the father. In response to a request from the Department for a DNA test, the Department received advice from the sponsor that the parties commenced IVF in December 2013 using his sperm and the visa holder’s egg; that the visa holder subsequently had two miscarriages; and that the visa holder decided to seek a sperm donor in China; and that the visa holder’s child was born in [Town 1] where she could receive care from her mother and sister.
The visa holder then provided to the Department a notarised certificate purportedly from a hospital in China certifying that the visa holder was artificially inseminated on [date] and information about the donor could not be released. The Department sought verification with the hospital and was advised that the certificate was not issued by them, the doctor’s signature was not genuine and the hospital did not have an artificial conception record for the visa holder.
On 27 July 2017 the application for Citizenship by Descent was refused. The delegate was not satisfied the visa holder’s daughter had a parent who was an Australian citizen at the time of her birth.
On 28 December 2017 the visa holder lodged an application for a Child (Subclass 101) visa for her daughter, declaring herself as sponsor. In this application the visa holder declared she had the sole right to determine where the child shall live. The Department then requested evidence of consent from the biological father for the child to travel permanently to Australia; evidence of the People’s Court verdict regarding revocation of custody; or evidence of a civil court ruling declaring the legal father missing, deceased or having loss of capability of civil conduct.
The Department was then advised by the visa holder’s representative that the visa holder ‘had found’ the biological father, Mr [A], on a recent visit to China. The Department requested DNA testing, and Mr [A] was confirmed as the father of the visa holder’s child.
On 16 August 2018 the Department conducted a telephone interview with Mr [A], during which he provided the following information:
·he knew about his daughter’s intended migration to Australia;
·he knew his daughter was residing with the visa holder’s mother in [Town 1], Hunan;
·he, the visa holder’s mother and the visa holder’s sister were all present when the visa holder gave birth;
·he met the visa holder in 2003 in Shenzhen when they were both working there, the visa holder as [an occupation]. They entered into a relationship in 2003 and commenced residing together from that time in a rented apartment in Shenzhen;
·in 2005-06 he and the visa holder moved back to [Town 1] and in 2007 jointly bought a property which was registered under the visa holder’s name. He supported the visa holder with the mortgage payments and the property was paid off in 2017;
·his business in [Town 1] was not profitable so he went to work in Hainan province and the visa holder went to Australia for work;
·the visa holder was encouraged by a male friend whom she met to seek employment in Australia;
·the visa holder sent money to her mother but did not send money to him as he did not need it;
·the visa holder visited him in China once or twice a year and they maintained contact during periods of separation;
·he and the visa holder did not register a marriage as their relationship was stable and the visa holder’s family members were aware of it;
·the visa holder was residing in an apartment in Australia which she shared with others. She intended to purchase a property once their daughter joined her in Australia;
·he returned to [Town 1] two or three times a year and stayed with the visa holder’s family and his daughter;
·the visa holder’s role in his life was that of a wife;
·he had no migration plans for Australia, and
·he wanted his daughter to migrate to Australia to be reunited with the visa holder before she returned to China for primary school enrolment.
Based on this information, the delegate advised the visa holder that it appeared she had provided incorrect information with her applications for the Prospective Marriage Visa and Combined Partner Visas.
The visa holder’s response to the NOICC
In her response declared on 30 April 2019 to the NOICC, the visa holder claimed the following.
·She grew up in a poor family in [Town 1] and only received junior schooling.
·She had to earn her own living at an early stage and went to Shenzhen for work.
·She met Mr [A] around 2003 in Shenzhen when she was [age] years old and living in a rented apartment with two other girls.
·She didn’t live with Mr [A] as a couple during that period of time but he would stay with her in her apartment overnight and they had an unofficial boyfriend/girlfriend relationship.
·They both returned to [Town 1], their hometown, in 2005. Shortly afterwards she found out that Mr [A] was a married man and that he had married in 2001. She was deeply hurt and ended the relationship.
·She and Mr [A] did not end up being enemies, and Mr [A] tried to compensate her for his dishonesty.
·Mr [A] knew the visa holder’s parents but she had never met his parents.
·In 2007 Mr [A] introduced a property to her which she purchased. Mr [A] did not contribute financially, rather it was her sponsor who paid off the mortgage by 2017.
·A majority of Mr [A]’s claims in his interview with the Department were not true. In particular, it was absurd to call her his ‘wife’ because he had been married to someone else since 2001.
·Mr [A] contacted her after his interview and assured her he said all the ‘right’ and ‘good’ things so their child’s visa would be granted soon.
·She met the sponsor in 2007 when he was visiting Shenzhen, entered into a relationship with him and arrived in Australia in 2010 on a ‘prospective spouse’ visa.
·She was upset and depressed after her IVF treatment in Brisbane in 2013 and 2014 was unsuccessful.
·She missed her parents and sister. The sponsor understood her homesickness and suggested she visit her family in China on a frequent basis.
·In early [year] during one of her visits home, Mr [A] happened to be at a[venue]. They drank a lot that evening and she became pregnant.
·She was afraid to tell the sponsor the truth so she claimed she was artificially inseminated at a hospital. The sponsor was thrilled with this news.
·When the certificate from the hospital she provided to the Department was exposed as a fake she told the sponsor the truth and he forgave her for her stupid mistakes.
·She was not in a relationship with Mr [A] prior to her relationship with the sponsor. However, even if there was a relationship between her and Mr [A], the sponsor’s answering ‘no’ to a couple of questions in the application form was not a planned action at all, but rather an incorrect interpretation of the questions. Neither she nor the sponsor had any intention to provide incorrect information to the Department in their applications.
The hearing
At the outset of the hearing the Tribunal referred to a written submission dated 30 April 2019 prepared by the visa holder’s then migration agent in which it is stated:
The answers that (the visa holder) had not have a de facto spouse relationship prior to her relationship with (the sponsor) were incorrect, but it is respectfully submitted that it wasn’t planned answers, it was rather a reaction to the question of de facto relationship which appeared in the forms in which both (the sponsor) did not understand correctly the true meaning of it, exercised poor judgement and conducted himself in a manner that (the sponsor) will regret for the rest of his life (sic).
The Tribunal asked the visa holder whether, given this submission, she acknowledged she provided incorrect information in her applications. The visa holder responded that she came from a poor family in a rural area, had limited education, did not speak English and the sponsor filled in all her application forms. She stated that she was in a boyfriend/girlfriend relationship with Mr [A] from 2003; he used to visit her and would stay with her two, three or four nights a week in the apartment she shared with other girls; and she ended the relationship in 2005 when she learned he was married. The visa holder denied that she was in a de facto relationship with Mr [A] when she met and married the sponsor.

The Tribunal asked the sponsor why he indicated on an application form that the visa holder had not previously applied to enter Australia, when he knew that she had previously applied, unsuccessfully, to enter Australia on a Visitor visa. The sponsor stated that he believed the question related only to applications to enter the country for permanent migration. He stated that he did not know why he believed this, but he did. He claimed that he was a working man and unfamiliar with migration law. The Tribunal did not find the sponsor’s explanation convincing.
The Tribunal asked the sponsor whether he did not consider it likely that the visa holder, who had left home at a young age, would have been in a previous relationship. The sponsor stated that he asked the visa holder when he was filling in the forms, she told him she had one boyfriend in the past, and he did not consider this counted as a de facto relationship. The Tribunal asked the visa holder why she did not consider her relationship with Mr [A] from 2003 to 2005, when she claimed it ended, a de facto relationship. She stated that she didn’t have a child at that stage. The sponsor and the visa holder maintained that they had no intention of providing misleading information in the application forms.
The Tribunal asked the visa holder, given her claim that she desperately wanted children, why she married the sponsor who is twice her age, has children older than she is, is a grandfather and had a vasectomy decades before they met. The visa applicant stated that she tried to conceive a child with the sponsor through IVF but was unsuccessful; was advised that the sponsor had fertility problems because of his age; and gave up. She stated, regarding their age difference, that relationships differ; her relationship with the sponsor is real; and it has been a father/daughter as well as boyfriend/girlfriend type relationship.
The Tribunal asked the sponsor why he declared himself the father of the visa holder’s daughter on her birth certificate when he knew he was not the biological father, when he had not legally adopted the child, and when he was not even in China with the visa holder when the child was conceived or born. The sponsor stated that he visited the child in China when she was four months old and ‘considers himself’ her father.
The Tribunal questioned the sponsor regarding the visa holder’s claim he was ‘thrilled’ when she told him she had been impregnated at a hospital in China through an unknown donor. The Tribunal put to the sponsor that if he and the visa holder were in a genuine spousal relationship and seeking to have a child they would have discussed, as a couple, the prospect of a sperm donor. The Tribunal asked the sponsor why he thought the visa holder pursued this path in China, by herself, rather than pursuing it with him, her husband, in Australia. The sponsor stated that he didn’t know why they didn’t discuss having IVF with a donor in Australia. He stated that he might have signed something at a hospital in China but couldn’t remember what and when. He was unconvincing in his claim, which was not supported by the visa holder, that he signed IVF documents at a hospital in China. He said he was upset when he learned the hospital certificate was a fake, but he forgave the visa holder for her deception and her one-night stand.
The Tribunal asked the sponsor why he didn’t travel with his wife during her many trips to China. The sponsor said he was busy working until his retirement in 2014, and didn’t know why he didn’t travel with the visa holder after he retired. He said he was happy living in[a suburb]. He stated that he suffered from [Medical Condition 1] at one time when the visa holder travelled because her grandfather was ill, and he was advised that it would be better if he didn’t fly. No medical evidence was provided that the sponsor was unable to travel at any time. The sponsor stated as noted that he travelled to China in 2016 and visited the visa holder’s child when she was[age]. He also advised, as confirmed by his movement records, that he travelled overseas by air in 2014 and 2017. When asked why the visa holder travelled so often and stayed for long periods without him, he stated that he encouraged the visa holder to spend time with her mother and sister in [Town 1] for the reason that she didn’t speak English, had no work skills and was lonely and homesick.
The Tribunal notes, from the information set out in the Delegate’s decision, that the visa holder was out of Australia for four and a half months in 2011; over a year from [February] 2012 to [March] 2013; four months between June 2013 and July 2014; five months between October 2014 and March 2015; over a year from [March] 2016 to [April] 2017; and 7 weeks in 2018. The Tribunal accepts that the visa holder might have been homesick, but finds it implausible that she travelled so often and spent so much time in China to be with her mother and sister.
The Tribunal referred the visa holder to a letter she had provided to the Tribunal written by a Dr [B] from [a] Fertility Centre, dated 23 May 2013, addressed to the visa holder’s referring general practitioner. In this letter Dr [B] states, regarding the visa holder:
She had one previous ectopic pregnancy which was treated with chemotherapy. She had a previous Hysteroscopy performed in China and was told she had a septate uterus. Her TSH was raised. Her prolactin level was marginally raised. All her other blood screening results were normal. All these investigations were performed in China.
The Tribunal asked the visa holder when she suffered the ectopic pregnancy, and whether she was in a relationship with Mr [A] at this time. The visa holder denied that she had ever had an ectopic pregnancy. The Tribunal asked the visa holder when, what year, she had a gynaecological procedure or treatment in China, before she met the sponsor. The visa holder stated that she sought IVF treatment with the sponsor in Australia in 2013 and 2014, underwent gynaecological procedures at this time and suffered two miscarriages. The medical documents provided by the visa holder indicate that her first embryo transfer cycle was performed in February 2014. After repeated questioning about a gynaecological procedure or treatment in China, the visa applicant stated that she remembered having a ‘check-up’, but couldn’t remember when this was. The Tribunal found the visa holder evasive and non-responsive on the issue of her ectopic pregnancy, and did not find her denial or claimed inability to remember it, convincing.
The Tribunal asked the visa holder to explain how and why, if she ended her relationship with Mr [A] in 2005, he helped her to buy a house in 2007 and they had a child together in[year]. The visa holder stated that Mr [A] knew that she wanted to buy a house and connected her with a seller in 2007. She stated that she had too much to drink at a dinner they both attended in [year] and had a one night stand. She acknowledged that she and Mr [A] have communicated with each other since this time about their daughter, his interview responses, her visa cancellation and their daughter’s planned migration to Australia. She claimed that she never directly informed Mr [A] that she married in Australia, but their mutual friends in China knew and would have told him. For the reasons that Mr [A] helped the visa holder to buy a house in 2007, they had a child together in 2016, the visa holder has spent more time in China than in Australia, the Tribunal does not accept that the visa holder’s relationship with Mr [A] ended in 2005. The Tribunal considers that the visa holder and Mr [A] have been in a relationship since 2003 and may still be in a relationship.
Mr [A]
The Tribunal asked Mr [A], who attended the hearing by phone from China, whether he had followed the discussion. He stated that he had. Having noted that the visa holder claimed she had only one boyfriend in China before meeting the sponsor, the Tribunal asked Mr [A] when the visa holder suffered an ectopic pregnancy. He stated that he didn’t know. The Tribunal asked Mr [A] what he wanted to say to the Tribunal. Mr [A] stated, loudly and emphatically, that he ‘made lies’ during his interview with the Department. He then made the following statements.
- When the Department asked him if he had a relationship with the visa holder he told them ‘what was happening now’.
- He is a happily married man so he didn’t want people to know he ‘had a one-night stand with her before’.
- He couldn’t remember when he had the one-night stand. The Department asked him questions and he lied.
- He agreed to a DNA test because he was happy for his child to go to Australia. He can’t afford to give her the better life she could have in this country.
- He was in a relationship with the visa holder from 2003 but only visited her at her accommodation. He made lies about them renting an apartment together.
- He did not help pay the mortgage on the house the visa holder purchased in 2007. He made lies about this.
- He knows the visa holder’s mother and sister but did not stay with them in [Town 1].
- He didn’t call the visa holder his ‘wife’, but used a nick-name. He didn’t call the visa holder’s mother ‘mum’, but called her ‘aunty’.
- He was not present at the birth of his daughter. He made lies about this. He has visited his daughter about four times.
- He forgot what he told the Department about the visa holder meeting a man and coming to Australia for work. He didn’t want to get involved ‘in how she found a man’.
- When he said the visa holder visited him when she returned to China, he lied. The visa holder never visited him at all.
- He met the visa holder in [year] when the child was conceived because mutual friends organised a dinner. They drank too much and had a one-night stand.
- His relationship with the visa holder ended in 2005 when he married his wife. He got married when he was in a relationship with the visa holder and lied to the visa holder. He married around the time of the Chinese New Year in 2005, and the relationship with the visa holder ended before this because she heard he was getting married.
- Other than the one-night stand when their child was conceived, he has had no relationship or contact with the visa holder since 2005.
- He put the visa holder onto a friend in real estate in 2007 because he knew she was looking for a house to buy.
The Tribunal asked Mr [A] to clarify the year of his marriage, as the visa holder had claimed that he married in 2001 and that 2005 was the year she found out about it. Mr [A] confirmed that he married in 2005. The Tribunal noted that the visa holder was conferring with her representative during this discussion. Following the procedures of s.359AA, the Tribunal subsequently put to the visa holder that she had claimed and provided evidence that Mr [A] married in 2001. The visa holder did not seek an adjournment. She stated that Mr [A] registered his marriage in 2001, but held the marriage celebration in 2005. The Tribunal found this explanation for Mr [A]’s statement weak and unconvincing.
The Tribunal asked Mr [A] why he ‘made so many lies’ in his interview. He stated that he was married so he didn’t want people to know he had a one-night stand with the visa holder. The Tribunal advised Mr [A] that it didn’t understand this explanation. Why was a long-term relationship less incriminating than a one-night stand? Mr [A] then stated that he lied because there are many child abductions in China, and he didn’t want people to think that the visa holder was abducting the child. The Tribunal, noting that his agreement to the child’s migration was not in question, advised Mr [A] that it didn’t understand this explanation either. Mr [A] then stated that he wanted the child to go to Australia, and thought that telling the Department that she was born into an ongoing and solid relationship would help.
Mr [A] acknowledged that he has had discussions with the visa holder about what he said in his interview. Pursuant to s.359AA of the Act, the Tribunal put to the visa holder that Mr [A]’s corrected statements were the same as her statements provided in response to the NOICC. The Tribunal advised the visa holder that this indicated that she had conferred with Mr [A] regarding the testimony he would provide to the Tribunal, and the evidence he provided was not reliable. The Tribunal asked the visa holder what reason Mr [A] had to lie in his interview about being in a relationship with her, and why the Tribunal should not prefer his more spontaneous statements provided at the time of the interview.
The visa holder did not seek an adjournment. She stated that she didn’t know why Mr [A] lied, but he did. She stated that she believed he thought he was helping her, and didn’t realise that the information he provided could lead to the cancellation of her visa.
The Tribunal found Mr [A] an untruthful and unreliable witness who was prepared to ‘make lies’ to the Tribunal and/or the Department. The Tribunal considers that Mr [A]’s motivation for lying has been to assist the visa holder to secure a migration outcome for their daughter. Regarding the information he provided in his interview with the Department, the Tribunal finds that Mr [A] embellished his responses, for example when he claimed he expected his child to return to China for her schooling. Regarding the nature of his relationship with the visa holder, however, the Tribunal prefers the gist of the information he provided in his interview over the corrected version he provided to the Tribunal.
The Tribunal therefore finds that the visa holder was in a relationship with Mr [A] from 2003, and that this amounted to a de facto relationship. The Tribunal notes that the visa holder experienced a failed pregnancy prior to meeting the sponsor, and does not accept that her and Mr [A]’s child born in [year] was conceived through a one-night stand. Notwithstanding Mr [A]’s claimed marriage in 2001 or 2005, the Tribunal finds the relationship continued during the visa holder’s frequent and lengthy visits to China after she left for Australia on a Prospective Marriage visa, and after she lodged her application for the Partner visa.
The Tribunal did not find the visa holder or the sponsor reliable or credible witnesses. The visa holder’s responses to questions at hearing were often evasive, and sounded prepared and formulaic. The sponsor appeared prepared to say and do anything to achieve a migration outcome for the visa holder and her child. The Tribunal does not accept that they filled in their application forms incorrectly because they didn’t understand the questions. The Tribunal notes in any event that the offence of non-compliance occurs regardless of whether or not the person is aware that the information provided in an application form is incorrect.
For these reasons, the Tribunal finds that there was non-compliance with s.101(b) 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).
Prescribed circumstances
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in 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; and
·     any contribution made by the holder to the community.
The Tribunal has considered the visa holder’s response to the NOICC. The Tribunal finds that the non-compliance occurred when the visa holder signed her Prospective Marriage and Partner visa applications; the correct information was that the visa holder had a previous de facto relationship which began in 2003; and the decision to grant the visas were based on the incorrect information that she was in a mutually committed, exclusive relationship with her sponsor. The Tribunal has considered the visa holder’s evidence that she came from a poor family in a rural area, had limited education, did not speak English and the sponsor filled in the application forms. The Tribunal gives this consideration little weight. It is the responsibility of a visa applicant or holder to provide correct information regardless of whether they come from a rural area, or have limited English or education, or did not fill in their own application form or forms.
At the time of decision the visa holder is on a Bridging visa C without travel rights, and expressed distress that she has for this reason ‘not been able’ to return to China to be with her daughter for over a year.
There is no information before the Tribunal to indicate that the visa holder has not complied with her visa obligations subsequent to the cancellation of her Partner visa.
Regarding any other instances of non-compliance known to the Minister, the Tribunal notes that on her own admission the visa holder provided a bogus document to the Department, namely the notarised certificate from [a specified hospital] which stated the visa holder had been artificially inseminated in the hospital [in] March 2017 and that information about the donor could not be released. The applicant therefore could be found not to meet s.103 of the Act.
The non-compliance occurred in 2009 when the visa holder lodged an application for a Prospective Marriage (Subclass 300) visa, and in 2011 when she lodged an application for a Combined Partner (Subclass 820/801) visa. The Tribunal notes however that the visa holder gave a bogus document and misleading information about the circumstances of her child’s conception and the parentage of her child to the Department in 2017 and 2018, and for this reason gives only limited weight to the time that has elapsed since the non-compliance.
There is no evidence before the Tribunal that the visa holder has been found to have breached the law since the non-compliance.
The visa holder claimed that she has paid taxes since obtaining employment [in] 2015. The Tribunal notes that the visa holder departed Australia for about two and a half months in 2015; eight months in 2016; four months in 2017; and two months in 2018. The Tribunal does not consider that the visa holder has contributed significantly through her taxes while she has been in Australia.
Having considered the prescribed circumstances the Tribunal finds them to weigh in favour of cancellation.
The Departmental PAM 3 guidelines
While the above 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 Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the visa holder from making a valid visa application without the Minister’s intervention. If the visa holder’s Resident Return (Subclass 155) visa was cancelled she would become an unlawful non-citizen liable to detention and removal. She would also be subject to s.48 of the Act which limits further specific visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and unable to be removed to China. In the circumstances of this case, the Tribunal finds these considerations do not weigh either in favour or against the visa cancellation.
There is no evidence before the Tribunal to indicate that there would be any consequential cancellations pursuant to s.140 if the visa is cancelled.
No claim was made or information before the Tribunal to indicate that any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. The Tribunal acknowledges that the sponsor stated that he is prepared to accept the visa holder’s child as his own; that the child’s biological father wants the child to have a better future in Australia; and that the visa holder and the sponsor claimed at hearing that they want to live as a family unit in Australia. The Tribunal notes that the child was born in China, has never been to Australia, is not an Australian citizen, and has family in China including her grandmother and aunt who are caring for her as well as her biological father. The Tribunal considers the best interests of the child would be served by being with her mother, and gives this matter no weight against cancellation.
The parties claimed that they would suffer emotionally if separated. The sponsor’s daughters stated that they would be ‘devastated’ if the visa holder has to leave the country because the sponsor, who has been the ‘rock’ in the family, would follow her, and they would lose their father and their children would lose their grandfather. The sponsor stated that he could not bear to be apart from the visa holder. The visa holder stated that she has been in Australia for ‘a long time’ and could see no future for herself in China.
The Tribunal gives some weight to the testimony of the sponsor’s daughters that the sponsor would be missed should he leave Australia, but considers that he could maintain contact with his family in Australia via phone and internet, and that they could visit each other. The Tribunal gives little weight to the visa holder’s argument that has been in Australia for ‘a long time’ and could see no future for herself in China. The Tribunal notes that the visa holder has, since arriving here on a Prospective Marriage visa, spent lengthy periods in her home country, has worked in her home country and has family and friends in her home country. The Tribunal accepts that the visa holder has obtained qualifications in Australia, namely a [qualification] and a driver’s licence, but considers that the visa holder could obtain employment in China including in the area in which she obtained employment in [Australia].
The visa holder stated that the sponsor’s physical condition was her main concern and that she wants to stay in Australia to care for her husband, whose age is a worry to her. Apart from the claim made during the hearing that the sponsor was unable to travel at one stage because of [Medical Condition 1], no claim was made or evidence provided to that the sponsor suffered any illness or disability, or that his physical condition was such that he was in need of care and support.
The visa holder argued that she would suffer social shame if she had to return to China as a single mother and that people would think her husband had abandoned her. The Tribunal notes that the visa holder’s mother, who cares for the visa holder’s daughter, and the visa holder’s sister have, since 2003 or 2004, known about and accepted her relationship with Mr [A] and have a positive relationship with him. The Tribunal notes that, according to information Mr [A] provided to the Department and the Tribunal, he calls the visa holder’s mother either ‘mum’ or ‘aunty’. The Tribunal further notes that the visa holder could make a protection visa application as she is not s.48 barred. The Tribunal gives this consideration only a little weight against cancellation.
The sponsor’s friends stated that the medical services available to the sponsor are better in Australia than they in China, so the visa holder should remain with him in Australia. As noted, no claim was made or information provided that the sponsor suffers an illness. The sponsor stated that he didn’t speak Mandarin, that he was enjoying his retirement in Queensland, and that he would be ‘lost’ in China. Previously during the hearing, however, the sponsor had stated that he liked China, had friends there and travelled there frequently. The Tribunal gives little weight to these arguments.
Evidence was provided to the Tribunal that the visa holder has financial interest in a number of residential properties. At hearing she confirmed that she owns the residential property in China that Mr [A] helped her to choose in 2007. She claimed that the sponsor paid out the mortgage on this in 2017, that it is rented out and that the income goes to her mother for her and her child’s support. She confirmed that she is the joint owner of the property that she and the sponsor are living in; that she is the joint owner, with the sponsor, of an investment property in Queensland; and that a deposit has been made for the purchase, in her name only, of another residential property in Queensland. She advised that the sponsor has financed her property dealings, and that her interests are not reliant on income she has received [since] 2015. The Tribunal considers that the visa holder could sell or rent out her properties, and gives this consideration little weight against cancellation of the visa.
The Tribunal observed the sponsor and the visa holder to be supportive of each other at the hearing. As noted, the sponsor appeared prepared to say or do anything to secure residence for the visa holder and her daughter. The sponsor advised the Tribunal that he has had a significant amount of disposable income which he has used to support the visa applicant. He confirmed that he paid for the visa holder’s travel and stays in China. The visa applicant stated that the sponsor told her he wants to spend the rest of his life caring for her; that he been a father as well as boyfriend to her; and that she cares for the sponsor and wants to stay in Australia and look after him.
Although the Tribunal has found that the sponsor and the visa holder have not been in an exclusive relationship, the Tribunal accepts that they have been in a relationship, that they have cared for each other and that they have provided each other with companionship and emotional support. The Tribunal gives weight to this consideration, however finds it outweighed by the considerations in favour of cancellation.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Adrienne Millbank
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
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.
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.
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.

[2020] AATA 1237

18 February 2020

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