2403828 (Migration) - [2024] ARTA 178

2403828 (Migration) [2024] ARTA 178 (14 October 2024)

DECISION AND

REASONS FOR DECISION

Respondent: Minister for Home Affairs
Tribunal Number: 2403828

Tribunal:Senior Member Michael Ison
Place:Melbourne
Date: 14 October 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 14 October 2024 at 5:07pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – member of the family unit – parties divorced – date of separation backdated – continued pooling of financial resources – ground for cancellation is not made out – decision under review set aside

LEGISLATION

Family Law Act 1975
Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994, Schedule 8

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2024 to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

Background

The applicant in this review is [applicant name], who is [an age]-year-old Chinese national. [Applicant name] is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia [in] August 2011 as the holder of a [Student] visa.
On 30 June 2013 the applicant applied for a second Student visa, which was granted on 13 August 2013.
On 25 November 2013 the applicant applied for a Temporary Graduate (Subclass 485) visa which was granted on 9 January 2014.
On 6 July 2015 the applicant applied for his third [Student] visa which was granted on 4 August 2015.
[In] July 2015 the applicant married [Wife A], [an age]-year-old Chinese national who first arrived in Australia [in] May 2009 as the holder of a [Student] visa.
On 4 September 2015 the applicant allegedly separated from [Wife A]. This allegation is disputed by the applicant who claims he did not separate from [Wife A] until September 2016.
[In] January 2016 the applicant departed Australia and his third Student visa expired while he was offshore.
On 3 February 2016 [Wife A] applied for a Skilled Independent (Subclass 189) visa which was granted on 22 March 2016. The applicant was a secondary applicant for a Skilled (Subclass 189) visa as a member of the family unit of [Wife A], being her husband. The Skilled (Subclass 189) visas granted both [Wife A] and the applicant permanent residency in Australia and did not have any conditions from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) attached.
[In] March 2016, […] the applicant returned to Australia.
By order of the Family Court of Australia dated [in] April 2017, effective from [May] 2017, the marriage of the applicant and [Wife A] was terminated.
[In] October 2018 the applicant married [Wife B], [an age]-year-old Chinese national in Australia. [Wife B] first arrived in Australia [in] May 2015 as the holder of a [Student] visa and was subsequently granted two more [Student] visas and a Visitor (Subclass 600) visa.
[In] February 2019 the marriage of the applicant and [Wife B] was registered in China.
On 25 March 2019 [Wife B] applied for a Partner (Temporary) (Subclass 820) visa as the spouse of the applicant. At the time of that application [Wife B] was granted a Bridging A (Subclass 010) visa which she continues to hold at the date of this decision. [Wife B’s] Bridging A visa does not have any conditions attached. The applicant continued to hold a Skilled (Subclass 189) visa at this time.
On 6 January 2023 the Department notified the applicant it was considering cancelling his Skilled (Subclass 189) visa. On the same day, the applicant applied for a Resident Return (Subclass 155) visa.
On 12 July 2023 the applicant’s Skilled (Subclass 189) visa was cancelled under s 109 of the Act on the ground the applicant provided incorrect information to the Department when he applied for that visa in 2016.
On the same day the applicant was granted the Resident Return (Subclass 155) visa. This visa did not have any conditions attached.
On 9 February 2024 the Department notified the applicant it was considering cancelling his Resident Return (Subclass 155) visa.
[Wife A] was granted Australian citizenship [in] February 2024.
On 27 February 2024 the Department cancelled the applicant’s Resident Return (Subclass 155) visa. It is the cancellation of the applicant’s Subclass 155 visa that is the subject of this review.
On 4 April 2024 the applicant was granted a Bridging E (Subclass 050) visa which has conditions 8207 (no study or training) and 8506 (notify any change of address) attached. At the time of this decision the applicant continues to hold the Bridging E visa.

The primary decision

The applicant provided the Tribunal with a copy of the primary decision.
The delegate of the Minister cancelled the applicant’s Subclass 155 visa on the basis that the applicant provided incorrect information to the Department in February and March 2016 when and after he applied for the Skilled (Subclass 189) visa. The delegate found the incorrect information provided by the applicant was that at the time of the application and granting of the Subclass 189 visa the applicant was still in a spousal relationship with [Wife A], the primary visa applicant for the Subclass 189 visa, and therefore a member of her family unit. It was on this basis the applicant was granted a dependent Skilled (Subclass 189) visa.
When the applicant sponsored [Wife B] for the Partner (Subclass 820) visa in March 2019 he and [Wife B] lodged documentation that indicated the applicant had separated from [Wife A] in September 2015, prior to the application for the Skilled (Subclass 189) visa being lodged.
The delegate found there was a ground for the cancellation of the applicant’s visa and that the discretionary considerations that weighed in support of the cancellation of the applicant’s Resident Return (Subclass 155) visa outweighed the discretionary considerations that weighed against cancellation.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

Tribunal hearing 17 May 2024

On 16 April 2024 the Tribunal invited the applicant to appear before the Tribunal on 17 May 2024 to give evidence and present arguments.
On 10 May 2017 the applicant requested the hearing be rescheduled because the applicant had appointed a new representative earlier that day. The Tribunal agreed to this request.

Tribunal hearing 3 June 2024

The applicant appeared before the Tribunal on 3 June 2024 to give evidence and present arguments in-person. The Tribunal also received oral evidence from the applicant’s wife, [Wife B] and the applicant’s ex-wife, [Wife A], who both attended the hearing in person. 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 Mr Jason Junsheng Zhang of Newstars Education and Migration who attended the Tribunal hearing in person. Mr Zhang is referred to as the representative in these reasons for decision.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

Pre-hearing submissions

The Tribunal received pre-hearing submissions from the representative on behalf of the applicant on 28 May 2024 and 31 May 2024. Those submissions included a 19-page submission from the representative and attached 57 documents. The 57 documents provided to the Tribunal are listed in Attachment One to these reasons using the descriptions, amended by the Tribunal, provided by the representative.
The written submissions provided by the representative were both high quality and of considerable assistance to the Tribunal in the conduct of this review.

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. These and related sections of the Act are set out in Attachment Two attached to these reasons for decision. 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.

Did the NOICC comply with the requirements in s 107?

In the present case, there is a question as to whether the Notice of Intention to Consider Cancellation of a visa (NOICC) issued by the Minister’s delegate complied with s 107 of the Act. The NOICC was sent to the applicant on 9 February 2024.
Having reviewed the NOICC and considered the requirements of s 107 of the Act, the Tribunal finds:
·the delegate reached the relevant state of mind that there was non-compliance with the Act;
·the NOICC contains sufficient particulars of the non-compliances subject to the Tribunal’s specific and limited finding in paragraph 46 of these reasons; and
·the NOICC complies with the statutory requirements of s 107 of the Act.

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) of the Act.
Section 101 of the Act provides:
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.
Section 107A of the Act provides:
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.
This means that a failure to comply with s 101(b) of the Act in relation to a previous visa application may be a ground for the cancellation of the visa holder’s current visa under s 109 of the Act.
The NOICC alleges the applicant failed to comply with s 101(b) of the Act as follows:
·The applicant applied for a Skilled – Independent (Subclass 189) visa on 3 February 2016;
·The applicant applied for the Subclass 189 visa as a member of the family unit of [Wife A], who he was married to at the time of application;
·Section 98 of the Act provides:
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.
·This has the effect that even though only one application form was lodged for [Wife A’s] primary and the (applicant’s) secondary visa applications, that form is considered to be an application by each applicant, and they are both responsible for the correctness of the information provided in their applications;
·Between 3 February 2016 and 16 March 2016 [Wife A] and the applicant uploaded a number of documents in support of their Subclass 189 visa applications including a statutory declaration declared by the applicant on 30 August 2015 and a Form 80 – Personal particulars for assessment including character assessment signed by the applicant and dated 18 March 2016 although it was emailed to the Department (as a signed document) on 17 February 2016;
·On 22 March 2016 [Wife A] and the applicant were granted the Subclass 189 visas;
·In September 2016 the applicant and [Wife A] applied for a divorce which was granted in April 2017 and the order became final in May 2017;
·On 25 March 2019 the applicant sponsored his second wife [Wife B] for a Partner (Temporary) (Subclass 820) visa. Among the documents uploaded in support of that application was a document ‘Counselling Certificate for Applicants Married Less than 2 Years’ signed by a Family Court Counsellor, [named], on 7 February 2017. In that certificate the date of separation of the applicant and [Wife A] is stated as 4 September 2015;
·On 11 March 2021 a Department officer telephoned the applicant regarding his sponsorship of [Wife B’s] Partner visa application. During that interview the applicant confirmed he separated from [Wife A] on 4 September 2015, did not reconcile with her and did not reside with her after they separated; and
·As a result of this information a delegate of the Minister alleged in the NOICC that the applicant provided incorrect information in his application for the Subclass 189 visa by claiming to be a member of the family unit of [Wife A], when during the applicant’s telephone interview with the Department and in the counselling certificate related to his and [Wife A’s] divorce the applicant had indicated he separated from [Wife A] on 4 September 2015.
The NOICC also alleges the applicant:
… provided a number of documents which purported to show you were still in a relationship with the primary visa applicant [Wife A], when you had in fact ceased to be in a relationship with her approximately five months earlier. …
Therefore, as per section 99, I also consider this information to be incorrect.
Section 99 of the Act provides:
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.
The Tribunal has disregarded this allegation in the NOICC. While the documents the delegate is referring to can be inferred from the NOICC, they are not specified apart from a reference to a third-party statutory declaration as an example. In the Tribunal’s view this allegation lacks the specificity required to both properly found an allegation of a breach of the Act and to enable the applicant to meaningfully respond to that allegation.
The applicant, through his previous migration agent (not the representative), did not respond to the NOICC.
The applicant does not agree that there is a ground for the cancellation of his visa.
However, on 6 January 2023 the applicant was served with a NOICC in relation to the Subclass 189 visa he held at that time. The NOICC dated 6 January 2023 was in materially identical terms in relation to the alleged breach of the Act and the basis for that allegation as the NOICC subsequently served on the applicant on 9 February 2024 in relation to his Resident Return (Subclass 155) visa.
In response to the 6 January 2023 NOICC the applicant, through a previous representative, provided responses on:
·20 January 2023 (four emails);
·3 February 2023;
·6 February 2023;
·15 February 2023;
·24 March 2023; and
·2 May 2023.
Those emails attached the documents listed in Attachment Three attached to these reasons for decision.
The applicant in his oral evidence to the Tribunal, his statutory declarations declared on 25 May 2024 and 29 May 2024 and supporting documentation claims:
·At the time of applying for the Subclass 189 visa on 3 February 2016 and at the time of the grant of that visa on 22 March 2016 the applicant was in a genuine and continuing married relationship with [Wife A] and therefore no incorrect information was provided in the application or supporting documents for the Subclass 189 visa;
·When the applicant and [Wife A] agreed to end their relationship in September 2016 and to apply for a divorce, they both wanted to expedite the divorce process;
·The applicant and [Wife A] jointly agreed to backdate the date of their separation in their divorce application to 4 September 2015 to facilitate obtaining a divorce quickly;
·In support of this claim the applicant provided a one-page document which he signed and dated in hand-writing “16/09/2016” but then refers to in his response to the key findings of the delegate in the primary decision as a “request document for a shortened processing period [for their divorce] I sent to [Wife A] via email” that mentions the applicant’s intention to buy a property;
·This meant the applicant and [Wife A] met the requirements under the Family Law Act 1975 (Cth) of having been separated for 12 months to be eligible to be granted a divorce;
·The applicant acknowledged to the Tribunal that the 4 September 2015 date provided in the application for divorce between he and [Wife A] (a copy of which the applicant provided to the Tribunal), in the Family Court counselling certificate and in his answers to the Departmental officer in March 2021, was incorrect;
·The applicant wished to buy a house at the time of separation from [Wife A] because in the applicant’s view in Chinese culture until you own property you are not considered settled in a place and the expectation of the applicant’s parents – who provided the deposit for the property the applicant subsequently purchased – was he should purchase a property, causing the applicant to wish to do so as soon as possible;
·The applicant did not wish to wait for the normal 12-month separation period to be eligible for a divorce from [Wife A] because in 2015 and 2016 house prices in Melbourne were increasing “hugely” and if he bought a house while still married to [Wife A] it would have created issues of having to divide matrimonial property;
·The applicant and [Wife A] told [name], the Family Court counsellor, that they separated on 4 September 2015 – even though they knew this information to be incorrect – to maintain consistency with the date of separation they wrote in their application for divorce;
·The applicant told the Department officer in March 2021 he separated from [Wife A] on 4 September 2015 to maintain consistency with the documents submitted in support of [Wife B’s] application for the Partner visa;
·The applicant gave the following oral evidence and written evidence in his statutory declaration declared on 29 May 2024 about the sequence of the formation of his relationship with [Wife A], their relationship problems and the eventual breakdown of their relationship:
o   The applicant and [Wife A] met on 22 March 2014, began their exclusive relationship on 14 May 2014 and married [in] July 2015;
o   The applicant moved into [Wife A’s] rented apartment in [Suburb 1] when they married;
o   The applicant was working part-time at the time and [Wife A] was not happy about their financial situation;
o   [In] January 2016 the applicant returned to China to visit his parents and to complete a two month internship at [Employer 1] which the applicant hoped would help him get a job in [specified industry] on his return to Australia;
o   On 3 February 2016, while the applicant was in China, [Wife A] lodged the Subclass 189 visa applications;
o   [In] March 2016 the applicant returned to Australia and lived with [Wife A] for two weeks. Upon his return to Australia from China the applicant gave [Wife A] a ‘red envelope’ from his parents for them which was a gift of money;
o   The applicant then moved out of their shared [Suburb 1] apartment and moved into a [Suburb 2] property that [Wife A] had previously rented;
o   The applicant described this as a temporary situation and that he and [Wife A] remained in contact, even spent nights together at [Suburb 1], went to the movies once, went out for meals and by the end of April 2016 had agreed to resume cohabitation and had begun searching for and found a new apartment in [Suburb 1], even going shopping together to purchase new furniture form [Business 1] and white goods from [Location 1] for their new apartment;
o   At the end of the shopping trip the applicant and [Wife A] had an argument about the applicant not working fulltime and his perceived lack of financial contribution to their marriage, which the applicant found intolerable, the result of which is they did not resume cohabitation and [Wife A] moved into the new apartment on her own;
o   The applicant’s evidence is that he and [Wife A] remained in contact after their argument until September 2016 and he sent messages to [Wife A] every day and sometimes she replied and sometimes she did not;
o   The applicant told the Tribunal he and [Wife A] met in-person most often in April 2016 but to his memory they did not meet much after that;
o   In April 2016 [Wife A] closed her joint bank account with the applicant and just told him, without seeking his permission or discussing it, that she had closed the account;
o   In May 2016 [Wife A] moved into the [Suburb 1] apartment on her own;
o   In late May 2016 the applicant was employed by [Employer 2] in a fulltime role, his first fulltime job in Australia;
o   The applicant informed [Wife A] of his new employment, but [Wife A] did not respond to the applicant or his news;
o   The applicant’s evidence was this was not the end of their married relationship, he considers their relationship was over when they agreed to apply for a divorce in September 2016 after [Wife A] messaged him in August that she wanted a divorce;
o   The applicant and [Wife A] applied for a divorce [in] September 2016 and in that application stated at item 14 ‘Date of separation’: “04/09/2015”;
o   The applicant explained that he and [Wife A] agreed to ‘backdate’ the date of their separation because they did not realise beforehand that they had to be separated for 12 months to divorce in Australia and for cultural reasons the applicant wanted to buy a property as soon as possible to demonstrate to his parents he was settled in Australia and because he believed house prices were increasing “hugely” at the time;
o   The applicant told the Tribunal [Wife A] also wished to buy property in Australia but the pressure on the applicant was greater from his side and he did not want to purchase a property in joint names or have it as part of the assets to be shared in a divorce;
o   [In] April 2017 the Federal Circuit Court of Australia (as it then was) ordered, under the Family Law Act 1975, that the marriage of the applicant and [Wife A] be terminated with effect from [May] 2017;
o   At this time, the applicant was still living in the property or room he rented in [Suburb 2];
o   On 20 April 2017 the applicant purchased a property in [Suburb 3] by paying AUD1,000 of a AUD70,000 deposit, with the balance of the deposit due by 24 April 2017, with the applicant using money his parents had transferred to him; and
o   On 28 June 2017 the applicant paid the balance of the purchase price for the [Suburb 3] property and moved into that property immediately upon or shortly after settlement.

[Wife A] in her oral evidence and her statutory declaration declared on 29 May 2024 told the Tribunal about the formation of her relationship with the applicant, their relationship problems and the eventual breakdown of their relationship as follows:
·She first met the applicant on 22 March 2014 in their professional year class;
·They commenced their relationship on 22 March 2014, the applicant proposed on 20 May 2015 and they married [in] July 2015 after which the applicant moved into [Wife A’s] [Suburb 1] apartment;
·The applicant returned to China in January 2016 for two months during which time they communicated by video calls, including [Wife A] speaking to the applicant’s parents;
·The applicant returned in March 2016 and gave [Wife A] a ‘red envelope’ from his parents containing AUD2,000;
·After two weeks they “had a quarrel” over the applicant’s job seeking which resulted in the applicant and [Wife A] “… agreed that we should try to not live together for a while and have peace to rethink our situation”;
·[Wife A] moved into what she described as the luxury two-bedroom apartment in [Suburb 1] on her own, eventually renting out the second room to assist her with paying the rent;
·In April 2016 the applicant and [Wife A] continued to contact each other daily and spent several nights together eventually agreeing to move to a new apartment so they could have their own place without sharing with others;
·They went shopping to [Business 1] and [Location 1] to buy items for their new apartment before having another “unhappy conversation” on the way home about their financial circumstances;
·When the applicant sent [Wife A] messages in June to July 2016 she did not reply because she needed time to think about their relationship;
·[Wife A] went to [Country 1] from 29 July 2016 to 14 August 2016 to visit a friend who lived there and found this was a good time for her to think about her marriage to the applicant;
·In August 2016, after her return to Australia, [Wife A] told the applicant she wanted to permanently separate from him;
·[Wife A] did the research about the requirements in Australia to obtain a divorce and neither she nor the applicant wanted to wait one year to end their marriage;
·They both agreed to move their date of separation to September 2015 in order to meet the requirement of the Family Law Act;
·It was important to [Wife A] to end her marriage to the applicant as soon as possible because of her character of wanting to move on and because she already had met the man who became her husband at the time and wanted to end her first marriage;
·[Wife A] met her future husband on a Chinese dating website which she had registered for after she came back from [Country 1];
·[Wife A’s] understanding is the applicant wanted to backdate their separation date because he wanted to purchase a property and wanted to keep their financial affairs separate; and
·[Wife A] didn’t contact the applicant after their application for divorce in September 2016 and the receiving the divorce order in April 2017 and [Wife A] wasn’t aware whether the applicant purchased a property or not.
The representative submitted on 30 May 2024 that there is not a ground for cancellation of the applicant’s visa because there is a lack of evidence that he provided incorrect information to the Department as follows (errors in the original):
… we respectfully submit that despite the inconsistencies identified or the concerns raised by the delegate, in the absence of any definitive and objective evidence, it only gives rise to an inference that [Wife A] and [the applicant] were not in a genuine relationship when the decision was made on their 189 Visa application. Rather than relying on the inference, the delegate should have conducted objective assessment on the submitted relationship evidence to determine whether their claim of spousal relationship was incorrect. This may include taking certain reasonable steps to verify those supporting documents which are the critical pieces of real evidence in the present case in determining whether they were in a spousal relationship.
The representative then cited the following evidence as supporting the applicant’s claim that his relationship with [Wife A] had not ended on 4 September 2015, being the date of separation that they wrote in their divorce application:
·The transaction records on the joint bank account of the applicant and [Wife A] for the period 8 September 2015 to 28 April 2016 show they continued to pool their financial resources during this period;
·The applicant and [Wife A] were only temporarily separated during January to March 2016 as the applicant gained relevant industry experience in China to improve his employment prospects in Australia while [Wife A] could not return to China with him because of her work commitments;
·The address for the applicant’s National Police Certificate dated [in] January 2016 was the address he shared with [Wife A] before they separated;
·The applicant’s incoming passenger card completed on his return to Australia from China [in] March 2016 showed [Wife A] as the applicant’s emergency contact person and his intended address as their shared apartment in [Suburb 1];
·The applicant moved to a premises in [Suburb 2] that [Wife A] had previously rented when they separated in March 2016, showing they were continuing to assist and support each other, and their separation was intended as temporary; and
·The expenditure on furniture and white goods on 27 April 2016 lends credibility to the evidence of the applicant and [Wife A] that until they argued that day they intended to move in together into the new apartment they had found in [Suburb 1].
The applicant told the Tribunal and provided supporting documents showing that he had made what the Tribunal considers genuine and reasonable efforts to obtain his WeChat and telephone records back to the time of his relationship with [Wife A]. For reasons outside the applicant’s control, the Tribunal accepts these records are not available.
The applicant provided 27 annotated photos in chronological order of his relationship with [Wife A] to the Tribunal. The last of these is dated April 2016 and is stated to be of the applicant and [Wife A] at a cinema, which is consistent with the applicant’s oral evidence. The photos prior to this photo in date order are:
·Two photos of the applicant and [Wife A] at [Location 2] with a friend [Friend A] marked September 2015;
·two photos of the applicant and [Wife A] with another couple at a restaurant marked November 2015; and
·four photos of the applicant and [Wife A] separately and together at [Location 3] marked December 2015.
Other evidence the applicant has provided in support of his claims that his relationship with [Wife A] continued until September 2016 includes:
·Three pages of a bank statement for the bank account of the applicant and [Wife A] in their joint names. The statement covers the period 1 January 2016 until 25 June 2016 when the account was closed;
·The purchase from the joint bank account of goods from [Business 2], [Business 1] and the [Location 1] on 17 April 2016 totalling AUD2,179.93; and
·The applicant’s incoming passenger card completed on his return to Australia from China [in] March 2016 showing [Wife A] as the applicant’s emergency contact person and his intended address as their shared apartment in [Suburb 1].
The Tribunal finds that the applicant declaring [Wife A] as his emergency contact person and their [Suburb 1] apartment as his intended address on his incoming passenger card [in] March 2016 supports the applicant’s claim to having been in a genuine and ongoing married relationship with [Wife A] beyond 4 September 2016 and the Tribunal gives this evidence significant weight.
The Tribunal finds the photographic evidence of the applicant’s relationship with [Wife A] from September 2015 is surprisingly limited and in the Tribunal’s view provides only very limited support for the applicant’s claim to have been in a genuine and continuing married relationship with [Wife A] until September 2016. The Tribunal accepts there are photos of a joint social activity of the applicant and [Wife A] in each of September 2015, November 2015, December 2015 and April 2016 but this evidence is only very modest evidence of the applicant and [Wife A] being in a genuine and ongoing married relationship beyond 4 September 2015. Put another way, if the applicant and [Wife A] had continued to be in a married relationship between September 2015 and September 2016 the Tribunal would have expected greater photographic evidence of their relationship supported by other evidence such as statutory declarations from family and friends which is addressed below.
The Tribunal finds that the purchase of furniture and white goods on 27 April 2016 using funds from the bank account in the joint names of the applicant and [Wife A] does not support the applicant’s claim to have been in a genuine and continuing married relationship with [Wife A] until September 2016. The Tribunal was not convinced by the oral evidence of the applicant or the statutory declarations of the applicant and [Wife A] as to the circumstances or intended use of these purchases or that those transactions evidenced a commitment to share the new [Suburb 1] apartment.
The evidence provided in the form of bank statements for the bank account in the joint names of the applicant and [Wife A] for the period from 11 July 2015 to 25 June 2016 display a significant drop in transactions from November 2015 to 25 June 2016, when the account was closed.
In September 2015 there are 16 transactions for the purchase of groceries, a restaurant meal and other items such as coffee or pharmacy items totalling a modest AUD391.19. There is no deposit of salaries evident into the joint account and no payment of rent or bills is evident with the one exception noted below. This indicates to the Tribunal that the significant majority of the household expenditure of the applicant and [Wife A] when they cohabited was from their personal bank accounts rather than their joint bank account.
In October 2015 there are 26 transactions for household expenditure including the payment of a large health insurance bill and three payments of AUD330 to [Business 3]. The transactions for October 2015 are consistent with the applicant and [Wife A] using their bank account in joint names as a genuine pooling of their funds.
From this time until the bank account is closed there is very little expenditure on household expenses evident in the statements as follows:
·In November 2015 there are five household transactions totalling AUD126.28;
·In December 2015 there are eight household transactions totalling AUD117.22;
·In January 2016 there are five household transactions totalling AUD73.64;
·Between 28 January 2016 and the closing of the account on 25 June 2016, the only transactions on the joint account are the transfer of funds between accounts except for the following:
o   Two minor transactions, totalling AUD16.03, for the purchase of groceries on 23 April 2016;
o   The three transactions for the purchases on 27 April 2016; and
o   Two PayPal payments [in] April 2016 totalling AUD175.45.
·There was no activity on the account in May and June 2016 apart from the closing of the account.
The Tribunal recognises that the applicant was in China from [January] 2016 to [March] 2016 but would have expected [Wife A] to still be using the joint account for its intended purpose of funding household expenditure.
The applicant has provided 13 statutory declarations and three statements from friends, colleagues and employers to the Tribunal. None of these mention the applicant’s relationship with [Wife A] or gave the Tribunal any additional insight into that relationship.
The applicant also provided statutory declarations from [Person A], [Person B] and [Person C] each declared on 17 January 2023 to the Department. The declarants each describe themselves as best or long-term friends with the applicant with [Person C] describing the applicant as his cousin who he has known only since the applicant arrived in Australia. Each declarant describes the circumstances, as told to them by the applicant, of the cancellation of his visa due to giving the incorrect date of his separation from [Wife A] and attest to the good character of the applicant, his history and present circumstances in Australia, including his marriage to [Wife B].
[Person C] also declared his discussions with the applicant over the troubles in his relationship with [Wife A], including the applicant seeking advice from [Person C] about maintaining his relationship with [Wife A] after the applicant returned from China to Australia in March 2016. [Person C] declared he was astonished when the applicant and [Wife A] applied for a divorce in September 2016.
The Tribunal found the applicant’s evidence of the reasons he and [Wife A] put 4 September 2015 as the date of their separation for their divorce application and then why he repeated that date to the Family Court counsellor in February 2017 and to a Departmental officer in March 2021 to be the least convincing of the applicant’s evidence to the Tribunal. Having made that observation, the Tribunal generally found the applicant to be a credible witness who gave his evidence spontaneously and openly without pause or noticeable affect.
The Tribunal found [Wife A] to be an impressive witness, including in relation to the reasons she and the applicant put their separation in their divorce application as 4 September 2015. [Wife A] has clearly moved on from her marriage to the applicant, has remarried and according to her own evidence has not maintained any contact with the applicant until this review commenced. The Tribunal accepts this evidence as [Wife A] is now an Australian citizen and had nothing to gain by giving evidence.
The Tribunal accepts [Wife A’s] evidence, which was consistent with the applicant’s evidence in this regard, that she and the applicant continued to have direct and indirect contact through to late April 2016.
On balance the Tribunal is not satisfied the applicant continued to be in a married relationship with [Wife A] until September 2016. The evidence before the Tribunal at best supports that their relationship continued until approximately April 2016 when the applicant left the [Suburb 1] apartment he shared with [Wife A] and they did not ever resume cohabitation.
There is very limited photographic evidence of their ongoing relationship beyond 4 September 2015. The Tribunal understands the applicant was overseas for most of the period January to March 2016, but even then, there is only one photo together that the applicant claims is from April 2016.
The financial evidence before the Tribunal shows the joint account was used for household expenses, albeit in very modest amounts, in September and October 2015, but sparingly for such expenditure from November 2015.
There are elements of the circumstances of the relationship of the applicant and [Wife A] that support what they both say is now incorrect: that their married relationship ended in or around September 2015. This is not enough in the Tribunal’s view to ground the cancellation of the applicant’s visa.
The NOICC is specific in its ground for cancellation that the information provided to the Department in the applicant’s secondary application for the Subclass 189 visa in February 2016 was incorrect because of the subsequent information the applicant provided to the Family Court of Australia, the Family Court counsellor and an officer of the Department that he and [Wife A] separated on 4 September 2015.
The Tribunal is not satisfied that the applicant and [Wife A] did separate on 4 September 2015. The Tribunal is satisfied there is an absence of evidence, apart from the oral evidence of the applicant and [Wife A], that their relationship continued beyond April 2016 to September 2016.
The Tribunal finds that it is probable that the applicant and [Wife A] ended their married relationship in April 2016 when:
·They ceased cohabiting and did not ever resume living together;
·They stopped meeting in person;
·[Wife A] did not respond to the applicant’s May 2016 message about gaining full time employment when according to the applicant his previous lack of full time employment had been the main stressor in their marriage;
·[Wife A] stopped returning the applicant’s messages and they no longer spoke to each other; and
·They had stopped pooling their financial resources in any meaningful manner.
The Tribunal finds that the following support a finding that the married relationship of the applicant and [Wife A] continued at least until late March 2016:
·The oral evidence of [Wife A] and the written evidence of the applicant’s cousin [Person C]; and
·The applicant continuing to use the [Suburb 1] apartment he shared with [Wife A] as his address on official correspondence and on the applicant’s [March] 2016 incoming passenger card.
These findings reflect the uncertainty for the Tribunal in determining exactly when the married relationship of the applicant and [Wife A] ended.
However, these findings also lead the Tribunal to find that the applicant’s married relationship to [Wife A] did not end on 4 September 2015 as stated in their divorce application and had not ended on 3 February 2016 when [Wife A] as the primary applicant and the applicant as a secondary applicant applied for the Subclass 189 visas.
This means that the ground for cancellation of the applicant’s Subclass 155 Resident Return visa, that he provided incorrect information in the manner described in the NOICC, is not made out.

Conclusion on non-compliance

For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Michael Ison
Senior Member

Date of hearing: 3 June 2024
Representative for the Applicant: Mr Jason Junsheng Zhang of Newstars Education and Migration

ATTACHMENT ONE - pre-hearing submissions from the applicant as listed by the representative

19-page submissions from the representative dated 30 May 2024
Statutory Declaration of the applicant declared on 24 May 2024
Response to the Tribunal’s summary of the delegate's key findings
Decision Record of Subclass 155 Visa Cancellation
Joint Application for Divorce
Divorce Order
Contract for Sale of Residential Property [in Suburb 3]
Contract for Sale of Residential Property [Address 1]
Contract for Sale of Residential Property [Address 2]
Proof of Car Ownership [Brand 1]
Proof of Car Ownership [Brand 2]
Employment Reference letter for [Wife B] 11 May 2024
Recent Payslip for [Wife B]
Request to Department of Home Affairs from [Wife B] to hold processing of her Partner visa application
Notification of Medicare Cancellation dated 10 May 2024
Feedback from Branch Manager for the applicant
Involvement in Making Contribution to [Employer programs]
Proof Work Performance
Reference from Working Colleague [A]
Reference from Working Colleague [B]
Statement of Service for the applicant
Home Loan Statement, [for the Suburb 3 property]
Investment Loan Statement, [Address 1]
Investment Loan Statement, [Address 2]
Relationship Photos in Chronological Order
Proof of Residence at [Suburb 1] in Jan 2016, AFP report for [the applicant] to that address

Proof of Ownership for [Bank 1] Account Ending with 2313
Joint Account Bank Statement From Jan 2016 to Jun 2016
Proof of Efforts in Retrieving Relevant Record Vodafone Customer Service Chat
Outgoing and Incoming Passenger Card, 2016
Evidence of Taking Internship in China from Jan 2016 to Mar 2016
Evidence of [Wife A’s] Previous Residence at [Suburb 2], ATO Notice of Assessment for FY2014
Evidence of [Wife A’s] Previous Residence at [Suburb 2], [Skilled Employment] Assessment in Mar 2015
Evidence of [Wife A]'s Previous Residence at [Suburb 2], [Skills Assessment] Result in Oct 2014
Depression Anxiety Stress Scales for the applicant
Depression Anxiety Stress Scales for [Wife B]
Recent Psychologist Report for the applicant
Recent Psychologist Report for [Wife B]
Statutory Declaration [Person D] declared on 7 May 2024
Statutory Declaration [Person E] declared on 27 February 2024
Statutory Declaration [Person F] declared on 30 April 2024
Statutory Declaration [Person G] declared on 29 April 2024
Statutory Declaration [Person H] declared on 16 May 2024
Statutory Declaration [Person I] declared on 2 May 2024

ATTACHMENT ONE (continued) - pre-hearing submissions from the applicant as listed by the representative

Statutory Declaration [Person J] declared on 23 May 2024
Statutory Declaration [Person K] declared on 5 May 2024
Statutory Declaration [Person L] declared on 30 April 2024
Statutory Declaration [Person M] declared on 30 April 2024
Statutory Declaration [Person N] declared on 17 May 2024
Statutory Declaration [Person O] declared on 26 May 2024
Statutory Declaration [Person P] declared on 26 April 2024
IVF Cycle 1
IVF Cycle 2
IVF Cycle 3
IVF Cycle 4
Proof of Gene Test
Recent Clinical PGT Report
Recent IVF Invoice
Certificate of Internship in 2016 for the applicant
Evidence of Left Lalplngectomy Operation Procedure for [Wife B]
Medical Record Evidencing Second Ectopic Pregnancy and Surgery for [Wife B]
Proof of Efforts in Retrieving the applicant’s WeChat History
Recent Appointments for LMIT Treatment
Recent Invoice for IVF Associated Medical Services
Request for expediting the divorce process in Sep 2016
Result for 4th Cycle IVF
Statutory Declaration declared by [Wife A] on 29 May 2024 regarding the history of her relationship with the applicant
Statutory Declaration declared by the applicant on 29 May 2024 regarding the history of his relationship with [Wife A]

ATTACHMENT TWO – Migration Act 1958 (extracts)

Interpretation
(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.
Interpretation
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).
Completion 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.
Information 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.
Incorrect 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.
Visa 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.
Notice 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

ATTACHMENT TWO (continued) – Migration Act 1958 (extracts) continued

(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.

Decision 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.
Cancellation 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.

ATTACHMENT THREE - documents the applicant provided as part of his response to the NOICC dated 6 January 2023 in relation to the proposed cancellation of his Subclass 189 visa (as listed in the Notice of Decision)

Form 956 - Appointment of a registered migration agent, legal practitioner or exempt person
Statement from the applicant dated 20 January 2023
Statement from [Wife B] dated 19 January 2023
Referral letter from [Doctor A] and Mental Health Plan dated 11 January 2023
Statutory declaration from [Person A] dated 17 January 2023
Statutory declaration from [Person B] dated 17 January 2023
Statutory declaration from [Person C] dated 17 January 2023
[Skills] assessment dated 2 November 2013
[Bank 2] extract dated 21 December 2022
Notification of Completion from [University 1] dated 6 November 2013
[Bank 3] Home Loan Statement (account number: deleted by the Tribunal) for the period 25 May 2022 to 25 November 2022, [Bank 3] Supplementary Home Loan Statement for the period 7 June 2022 to 7 December 2022 (account number: deleted by the Tribunal), and [Bank 4] Statement List for the period 1 October 2022 to 17 January 2023
Australian Higher Education Graduation Statement from [University 2] dated 26 September 2013
Australian Taxation Office Notices of Assessment for the years ending 30 June 2016, 30 June 2017, 30 June 2018, 30 June 2019, 30 June 2021 and 30 June 2022
Deposit Statement to the Purchaser of Real Estate Pursuant to Section 27 of the Sale of Land Act 1962 dated 20 April 2017
Certificate of Attainment from [College 1] and academic transcript dated 9 January 2015
Assorted extracts from [Bank 2] platform dated 18 September 2020 to 29 April 2022
Referral letter from [Doctor B] dated 27 June 2022 and ultrasound report from [Health Service 1] dated 22 June 2022
Email from [Person Q] dated 6 May 2019
Statement from [Person R] dated 17 January 2023
[Bank 1] statements (account number: deleted by the Tribunal) for the period 11 July 2015 to 25 June 2016
Emails between [Doctor C] and [Wife B] dated 13 November 2022, 28 December 2022 and 29 December 2022
Letters from RACV dated 9 July 2018, a letter from VIC Roads dated 13 July 2018, and a letter from [Business 4] dated 6 July 2018
Undated collection of photos
Medical certificate from [Doctor D] dated 2 February 2023 and photos of pregnancy test sticks
Medical certificate from [Doctor D] dated 24 January 2023
Medical certificate from [Doctor E] dated 4 February 2023 and emails between [Doctor C] and [Wife B] dated 2 February 2023 and 4 February 2023
A Report for Psychological Evaluation and Intervention from [Doctor F] dated 5 February 2023
Submission from legal practitioner [named] dated 6 February 2023

ATTACHMENT THREE (continued) - documents the applicant provided as part of his response to the NOICC dated 6 January 2023 in relation to the proposed cancellation of his Subclass 189 visa (as listed in the Notice of Decision)

‘Leaving Hospital Information’ and ‘Other Procedures’ documents from [Health Service 2] dated 9 February 2023
‘BIOMHC Mental Health 3 Step Process’ document dated 19 February 2023 and referral letter from [Doctor A] dated 19 February 2023
Completed ‘Consent to Assisted Reproductive Treatment (ART)’ form dated 22 March 2023
A Report for Psychological Evaluation and Intervention from [Doctor F] dated 26 March 2023
Evidence of ongoing IVF attempts, including discharge instructions and medical certificates for egg collection appointment [in] May 2023.