Chen (Migration)

[2023] AATA 3478

Chen (Migration) [2023] AATA 3478 (25 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhonghe Chen

REPRESENTATIVE:  Ms Pushpaleela R Selvarajah

CASE NUMBER:  2302037

HOME AFFAIRS REFERENCE(S):          BCC2022/1562018

MEMBER:Kira Raif

DATE:25 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 25 August 2023 at 2:00pm

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 – applicant had been known by other names – applicant gave incorrect answers – concerns about the probative value of the first forensic examination – Tribunal cannot be positively satisfied that  the applicant completed the application form in a way that  incorrect answers were given or provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 109

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a national of China born in March 1970. He was granted the Provisional Spouse visa in November 2019. In November 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s children. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. 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?

7. 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.

   Primary decision

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  he made the application for the Partner visa on 11 November 2019 on the basis of his relationship with Ms Yiping Wei. On the application form the applicant gave the following responses

   a.In response to a question “is this applicant currently or have they ever been known by any other names” the applicant stated ‘no’

   b.In response to a question seeking details of previous relationships, the applicant stated that he was previously married to another person between October 2004 and August 2012

   c.In response to a question about the visa history, the applicant stated that he made the application for a Visitor visa in July 2017 but was refused due to insufficient information.

   d.In response to a question whether the applicant had previously been removed, deported or excluded from any country including Australia, the applicant stated ‘no’

   e.In response to a question whether the applicant had any outstanding debts to the Australian government or public authority, the applicant stated ‘no’

   f.In response to a question whether the applicant had ever overstayed a visa in any country, the applicant stated ‘no’.

9. The applicant was granted the Provisional Partner visa on 22 June 2021.

10. The primary decision record indicates that in February 2022 the NSW Department of Transport informed Immigration that the RMS facial imaging software had matched the applicant’s facial image to that of another identity, Zhong Cheng Chen (dob 25/3/69). The applicant told the Tribunal that he has no knowledge of that. He states that he was given the learner’s license but not the full license as he was told there was a match with another person but he does not know anything about it.

11. In March 2022 the Department’s Facial Examination Unit’s Forensic Facial Image Examiner formed the view, upon comparison of the facial images, that the images relating to Zhong Cheng Chen (dob 25/3/69) and Zhonghe Chen (dob 31/3/70) represent the same person.  The reports indicate there are deficiencies.    

12. In March 2022 the Department’s Forensic Facial Image Examiner compared the facial images of Zhonghe Chen (dob 31/3/70) and Vitoon Suwanweekakhumthon (dob 28/8/60) and concluded that these represent the same person.

13. The primary decision record indicates that the person under the name of Vitoon Suwanweekakhumthon travelled to Australia on 1 July 1997 and made an application for a permanent visa on 14 July 1997. In that application he claimed to be a Chinese national who had also obtained Thai citizenship in 1992. The primary decision record indicates that in September 1998, under the identity of Qin Li Lin, the applicant applied for review of the decision to refuse to grant him the visa. He claimed that the name Vitoon Suwanweekakhumthon was his alias.

14. The primary decision record indicates that in April 1998 the applicant made another application for a permanent visa in Australia under the identity of Zhong He Chen. He claimed that his genuine identity is Zhong He Chen and that he entered Australia on a forged Thai passport but he was not a national of Thailand. The applicant’s application was deemed to be invalid and prevented by s. 48A of the Act.

15. Material that is before the Tribunal indicates that in the 1998 application Zhong He Chen declared a wife Xi Mei Ou (dob 20/5/72), and a son Yi Chen (dob 18/1/95), living in Fujian China. In his Partner visa application made in 2021 the applicant provided a copy of the divorce certificate which identifies his former spouse as Ximei Ou. The applicant also declared a son Yi Chen (dob 18/1/95). The signature on the protection visa application made in 1998 and on the Partner visa application made by the applicant appear to be the same. (This information was subject to the Tribunal’s correspondence under s. 359A of the Act.)

16. The primary decision record states that under the name of Zhong Cheng Chen the applicant applied for a visa on 11 April 2000. That application was refused on 10 May 2000. The applicant lodged an application for review to the Tribunal and the Tribunal affirmed the decision in January 2001. The applicant’s Bridging visa ceased in July 2003 and the applicant remained in Australia as an unlawful non-citizen.

17. The delegate noted that in July 2002 the applicant was detained as an unlawful non-citizen and in October 2002 he made an application for an Australian visa under the name of Qin Li Lin. At the time, the applicant stated in the application form that his wife Xiu Zhen Lin was living in China.

18. The delegate concluded that the applicant had been known by other names, had previously been refused a number of visas and that the applicant had a debt to the Australian government of $1032 associated with his removal from Australia. The delegate concluded that the applicant gave incorrect in relation to these matters in his application form. The delegate also noted that the applicant referred to his previous relationship with Ms Ou between October 2004 and August 2012 but did not mention his relationship with Ms Lin.

    Evidence before the Tribunal

19. The applicant provided a statement and a number of documents in his response to the NOICC. The applicant states that all the information he provided in his application is correct and he had not previously heard any of the names mentioned in the NOICC. The applicant states that the only entry permits he ever had was the subclass 309 visa granted in June 2021. The applicant notes that the detention centre should have the fingerprints of the persons named above and he had asked the police to have his fingerprints so these can be compared. (The delegate notes in the primary decision that in 2002 when the applicant was detained, no fingerprints were taken so a comparison cannot be done.) The applicant states that when he applied for his driver license, the RTA informed him there was another person who looked like him with the same / similar name and he was required to provide specific documents, which he did. The applicant states that his license was cancelled but he did not understand why. The applicant states that he first arrived in Australia in November 2021 and the family took pictures in the airport and at dinner that night and he believes Customs would have a record of his entry. The applicant claims that Chen Zhongchen is not him but another person. The applicant states that he lived in China from birth until his entry to Australia in November 2021 and he had never been to Australia before.

20. The applicant provided with his submission a number of documents. He provided copies of his interactions with RTA concerning his license (when he was informed that the RTA believed the information he supplied was misleading or incorrect). The applicant provided a number of photographs which he claims are family photographs taken between July and November 2022. The Tribunal notes that there are no date stamps on these photographs and it is impossible to determine when (or where) these were taken. Similarly, the applicant presented photographs of his claimed arrival in Australia but it is not possible to determine when these were taken. The applicant presented his AFP certificate and the overseas police certificate, showing no disclosable outcomes. The Tribunal accepts that evidence but it does nothing to determine the accuracy of the information summarised above as there is no suggestion that the applicant (whether or not he was known by different names) had been convicted of any offences. The applicant presented his itinerary for travel to Australia. The Tribunal is mindful that the document bears no signature, official stamps etc and no other official markings. It can be easily reconstructed. In the Tribunal’s view, it is of no probative value as evidence of the applicant’s arrival in Australia, let alone first arrival in Australia. The applicant also provided photographs from his Christmas vacation. The Tribunal acknowledges this evidence but it does not assist the Tribunal in determining the matters noted above.

21. In further submissions to the Tribunal of 12, 15 and 16 May 2023 the applicant provided additional documents. (No explanation has been offered by the applicant’s representative for the late submission of documents and the non-compliance with the Tribunal’s Practice Directions).

22. The applicant provided a notarised statement indicating that he first applied for a passport in 2014 and that there was no record of his departure from China before 2012. The applicant presented medical records relating to his treatment in China and a number of photographs. As noted elsewhere, the Tribunal is unable to determine where or when the photographs were taken and the Tribunal does not consider these to be probative evidence of the applicant’s residence in any particular country at any particular period of time. As for the statements concerning the applicant’s passport and departure from China, the Tribunal is mindful that if the applicant’s first entry to Australia was under a different name, the Chinese authorities may be unaware of his departure from China and the passport may have been issued under a different name. In response to that concern, the applicant states that the authorities in China would have known if he left under a different name or would have become suspicious but it is not clear to the Tribunal how the authorities would know, or why they would become suspicious if the applicant left the country under a different identity.

23. The applicant states that he presented the marriage and divorce certificates and he had to be physically present in China for both the marriage and divorce. These documents were issued while the applicant is claimed to have been in Australia. He states his seafarer’s certificate was issued in November 1997 when the applicant was claimed to be in Australia. The applicant provided to the Tribunal a copy of his drivers license issued in January 2013 and he stated it was his first driver’s license as in China, cars were rare prior to that date. The applicant states that he had an operation in 2003 which is evidenced through the hospital records.

24. The Tribunal took oral evidence from Ms Dong Chen, the applicant’s daughter. She told the Tribunal that from the time of her birth she lived in Longtian village in Fuqing city and they moved when she was about 16-17 (around 2010).  She then said that they lived at Longtien village but also at another place. That evidence contradicts the statement from the village official that the family moved out from the Longtian town in 2004. Ms Dong then changed her evidence and said that  she was not living in Longtian village until she was 16-17 and she said that her earlier evidence was not true. Ms Dong told the Tribunal that the family went overseas to South Korea around 2016. She could not recall any of her father’s other overseas travel. Ms Dong confirmed that her father had an operation at the Second Hospital around 2003. She said that her father picked her up from school almost every day (but she was unable to explain how he was able to do that when working as a seafarer) and she said there were no occasions when her father was absent for long periods. Given the inconsistences, the Tribunal found Ms Chen’s evidence to be unsatisfactory and unpersuasive.

25. The Tribunal took oral evidence from the applicant’s son Mr Yi Chen. Mr Chen told the Tribunal  that they lived in Logtian village until about 2004 when the family moved to Fuzhou. He said that his father would drop him off at school and pick him up. He could not recall when his father first went overseas and claimed he did not know details about property purchase. He said that his father was not away from home for extended periods and his father did not discuss with him going overseas to support the family. Mr Chen told the Tribunal that the family had a landline by the time he was about 10 years old and he said the family had a car within a few years of the family moving to Fuzhou around 2004 (which appears to contradict the applicant’s evidence that he did not have a driver’s license before 2013 as cars were rare in China). Mr Chen said that  while he was growing up, his father had not spent lengthy periods of time away from home.

26. As noted above, shortly before the hearing, the applicant provided a number of other documents to the Tribunal. These included copies of his marriage certificate and divorce certificates and a property ownership certificate, a statement from his child’s music teacher confirming that the applicant took the child to the lessons during the period he is alleged to have lived in Australia, and a number of statements from the applicant’s friends who confirm his presence in China during various activities. The applicant also provided a statement claiming to be from his employer, who confirms the applicant’s presence in China and a statement from the representative of his village who states that the applicant had been residing in the village with his wife and children until 1994. The applicant presented his seafarer’s license issued in 1997 and a hospital record relating to a medical procedure.

27. The Tribunal is concerned that much of that documentary evidence is not contemporaneous but, has been prepared at the present time. Thus, there are several statements from third parties, prepared recently, which refer to the applicant’s residence in China. In the Tribunal’s view, if the applicant did reside in China, there should be contemporaneous and independent evidence of such residence, such as, for example, evidence of him receiving ongoing payments from his employer with bank records from that period (he claims he was paid in cash), contemporaneous evidence of license or hukou renewal, bills for amenities, etc. The applicant claims that none of such documents are available to him. The Tribunal considers statements from third parties to be of very limited value, at best, as it is possible that these were prepared at the applicant’s request and the Tribunal has little opportunity to test the evidence.

28. The Tribunal is also mindful that if the information in the primary decision was true (that is, if the applicant did travel to Australia on a false passport and then used different identities to make visa applications), that would indicate that the applicant was capable of obtaining fraudulent documents. If true, then the documents the applicant now presents to prove his residence in China may not necessarily be truthful or accurate.

29. The Tribunal is of the view that the contemporaneous and officially issued personal documents issued in China, if genuine and if they relate to the applicant, are of significantly greater probative value.

30. The Tribunal sought verification of the official personal documents provided by the applicant with the authorities in China. In response, the Tribunal was advised that the seafarers certificate was not considered to be a genuine document but the remaining documents were considered to be genuine documents. The Tribunal also requested the Department’s forensic examiners to undertake a comparison of the facial images on the documents presented by the applicant to the Tribunal (which were issued in China) and the earlier documents that had formed the basis of the delegate’s decision. The report of the forensic examiner, broadly speaking, indicated that the images provided by applicant in the family photographs and a notarised certificate matched the identity of Zhongcheng Chen but did not match the other identities referred to in the original forensic report and the delegate’s decision.

    Consideration of evidence

31. The Tribunal has considered the totality of the evidence before it. The Tribunal gives significant weight to the following

    a.RMS determined, through its own and independent assessment, that the applicant had previously applied for a license under a different name.

    b.The Department’s document examiner has determined that the identity of the applicant in his Partner visa application matches the identities declared in the earlier applications.

    c.The 1998 application and the present Partner visa application have significant similarities, including the names of the applicant’s spouse and child. The Tribunal considers it implausible that a person who declared his own name that is highly similar to the applicant’s, would have a spouse and partner with the same names as the applicant’s, and the same or similar dates of births, yet that person would be someone other than the applicant. The Tribunal finds the applicant’s suggestion that his identity was stolen to be unpersuasive in light of the fact that the facial images were considered to be similar.

    d.The signatures on the 1998 and the Partner applications appear to be the same or similar.

1. The Tribunal considers each of the factors set out above to be highly persuasive as evidence that the applicant did previously travel to Australia.

2. However, there is other evidence that is problematic. The documents presented by the applicant from China (issued at the time when the delegate found he was in Australia) had been verified as being genuine with the exception of the seafarer’s certificate. The most recent forensic examination report shows that the applicant’s photograph on these documents does not match the identities noted above with the exception of Zhongcheng Chen. That is, the applicant using his present name of Zhong He Chen has been identified as being the same person as Zhongcheng Chen. But the documents also show that the applicant was in China (with the documents issued in China being verified as being genuine) and it is clearly not possible that the applicant was in two countries at the same time. The other concern raised by the more recent forensic examination report and the additional documents presented by the applicant is that the applicant was identified as not being the  same person as the various other identities set out by the delegate while the first forensic examination report suggested that the applicant was known by all of the specified identities. These issues raise concerns about the probative value of the first forensic examination which formed the basis of the primary decision.

3. In the Tribunal’s view, it is quite possible that the applicant did use some of the identities specified above and had previously travelled to Australia using these identities. The documents he presented from China do not exclude that possibility because the most recent forensic examination report indicates that there is no link between the identity in these documents (that is, his presently used identity) and most of the identities stated in the primary decision (with the exception of Zhongcheng Chen). The issue, however, is that the first forensic examination report identified all of the identifies as being ones used by the applicant previously. As noted above, this conclusion is problematic, given the second forensic examination report which indicates that the applicant’s present identity matches that of Zhongcheng Chen and none others and that the Chinese issued documents which were issued at the time the applicant was said to be in Australia were found to be genuine.

4. The Tribunal considers is likely that the applicant did previously travel to Australia and used one or some of the identities set out in the primary decision record. As noted above, there is strong evidence to support that contention and a finding that the applicant previously travelled to Australia. However, the evidence presented by the applicant, most significantly some of the contemporaneous personal documents issued in China at the time when the was supposed to be living in Australia under different identities, and the fact that these documents were assessed as being genuine, casts some on the evidence relied upon by the delegate. That is, while the Tribunal considers it likely that the applicant gave incorrect answers in the application form because he did previously travel to Australia, that level of satisfaction is not sufficient to form a basis for a cancellation.

5. There is sufficient doubt to prevent the Tribunal from reaching a positive degree of satisfaction that the applicant completed the application form in the way that incorrect answers were given or provided. It is possible that with further investigation, there may be more probative evidence that would justify that conclusion. That would necessitate a new NOICC to be issued.

6. For these reasons, the Tribunal cannot be positively satisfied that  the applicant completed the application form in a way that  incorrect answers were given or provided. The Tribunal is not satisfied that there was 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.

   Conclusion

7. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

   Kira Raif
   Senior Member