Chun (Migration) - [2022] AATA 1146

Chun (Migration) [2022] AATA 1146 (20 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chuangui Chun
REPRESENTATIVE:  Mr Tony Su Xiong (MARN: 0531691)
CASE NUMBER:  2116310
HOME AFFAIRS REFERENCE(S):          BCC2021/643682
MEMBER:Kate Millar
DATE:20 April 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

Statement made on 20 April 2022 at 2:58pm
CATCHWORDS
MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – incorrect answers given in incoming passenger cards – conviction for corporate bribery in home country after visa granted not declared – discretion to cancel visa – non-compliance conceded – travelled to Australia to help adult children and young grandchild and feared that answering honestly would result in being refused entry – fear of harm from recipient of bribes and associates, or further charges and imprisonment – delay in departing and three voluntary returns – family members’ physical and/or mental health and applicant’s care for grandchild – best interests of child not the only primary consideration – emotional and financial hardship – mandatory legal consequences of cancellation – wife’s application for visa in own right in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 102, 107, 109(1), 166(1)(b), 172(3)(b), 359A, 375A, 501(6), (7), 506(3)(b)
Migration Regulations 1994 (Cth), rr 2.41, 3.01
CASES
CFE16 v Minister for Immigration and CFD16 v Minister for Immigration [2020] FCCA 1083
COT15 v MIBP (No 1) [2015] FCAFC 190
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Chun is a citizen of the People’s Republic of China who was granted a Subclass 143 (Contributory Parent) visa on 14 August 2013.
After the grant of his visa, and arriving in Australia on 23 December 2016, Mr Chun left Australia on four occasions. He most recently returned to Australia on 4 March 2018.
On his incoming passenger cards, Mr Chun did not declare he had a conviction for a criminal offence in China. Mr Chun was convicted of corporate bribery on 21 November 2014 by the Supreme People’s Court of the People’s Republic of China, and sentenced to a term of imprisonment of one year and six months.
Because he failed to disclose his criminal conviction, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs found that Mr Chun has breached the requirement in s 102 of the Migration Act 1958 (Cth) (the Act). This requires a non-citizen to fill in an incoming passenger card in such a way that no incorrect answers are given. After considering Mr Chun’s response to a notice of intention to cancel his visa, the delegate cancelled Mr Chun’s visa on 9 November 2021.
This is a review of the decision to cancel Mr Chun’s visa. In reviewing the decision, the issues are whether a ground to cancel Mr Chun’s visa exists, and if so whether his visa should be cancelled. If a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chun (Migration)

Details

AGLC: Chun (Migration) [2022] AATA 1146
Case: [2022] AATA 1146
Decision Date: 20 April 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Chun against the Administrative Appeals Tribunal's affirmation of the Minister's decision to cancel his Subclass 143 (Contributory Parent) visa. The cancellation was based on Mr Chun's failure to declare a conviction for corporate bribery in his home country on his incoming passenger cards, which constituted non-compliance with his visa obligations. Mr Chun argued that he feared answering honestly would lead to refusal of entry, potential harm from associates of the bribe recipient, or further charges and imprisonment. He also raised concerns about his wife's health, his care for his grandchild, and the emotional and financial hardship that cancellation would cause his family.

The primary legal issue before the Tribunal was whether the Minister had validly exercised the discretion to cancel Mr Chun's visa under section 109 of the *Migration Act 1958* (Cth). This required determining if Mr Chun had failed to comply with the Act by not providing correct information on his passenger cards, and if the Minister had followed the correct procedural steps, including issuing a valid notice under section 107 of the Act. The Tribunal also had to consider whether the best interests of Mr Chun's grandchild were the sole primary consideration, and the weight to be given to other factors such as emotional and financial hardship, and the mandatory legal consequences of visa cancellation.

The Tribunal found that Mr Chun had indeed failed to comply with his obligations by not declaring his conviction. It was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued under that section complied with the statutory requirements. While acknowledging Mr Chun's genuine desire to be with his family and his care for his grandchild, the Tribunal found him to be vague and evasive regarding his claims of fear of harm in China and noted that his previous claims about caring for his brother were found to be untrue, as he was in fact in prison during that period. The Tribunal concluded that the best interests of the child were not the only primary consideration and that the mandatory legal consequences of cancellation, alongside the other factors presented, did not outweigh the grounds for cancellation.

The Tribunal affirmed the decision to cancel Mr Chun's visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.BACKGROUND In China, Mr Chun operated a company selling medical equipment. After his conviction for bribing the medical director of a hospital to buy his equipment, the company was deregistered. Mr Chun has a brother who lives in China, who has suffered brain damage as a result of a haemorrhage. His brother has two children and lives in a house given to him by Mr Chun. Mr China also has a younger sister with one child. Both his siblings live in Hubai. Mr Chun and his wife Ms Lanying Qiao are the parents of twin daughters Ms Jing Chun and Ms Hua Qiao who are 38 years old. Ms Jing Chun and Ms Hua Qiao live in Australia. Ms Jing Chun first came to Australia in April 2007 and is now an Australian citizen. She has a son Raymond who is now 10 years old. Ms Chun divorced Raymond’s father on 1 September 2014. Ms Hua Qiao is an Australian permanent resident. She came to Australia as a student in 2007 and followed a skilled visa pathway to permanent residency. She currently holds a Subclass 155 (Resident Return) visa. Mr Chun applied for a Subclass 143 visa which was granted on 14 August 2013. This visa was first cancelled on 22 November 2016 because he did not enter Australia by the initial entry date of 28 January 2014. This cancellation of his visa was revoked on 12 December 2016 as Mr Chun claimed he was unable to enter Australia by the initial entry date because his brother had a cerebral haemorrhage, and he needed to provide care for his brother. As acknowledged in his statutory declaration of 9 February 2022 he was in fact in prison from 30 October 2014 until 29 April 2016 and was not caring for his brother as he claimed. He claimed when seeking revocation of this cancellation that his brother had now recovered to an extent that a nurse could care for him so he could now travel to Australia. Mr Chun travelled to Australia on 23 December 2016 and returned to China on 3 March 2017. He returned to Australia between 30 May 2017 and 10 July 2017 and 10 August and 9 November 2017. He most recently arrived in Australia on 4 March 2018 and has remained in Australia since. Mr Chun’s wife Ms Lanying Qiao has also travelled between China and Australia on several occasions. She most recently arrived in Australia on 27 September 2021, having remained in China from 18 March until this date as she has been receiving treatment for a pneumonectomy in September 2019,[1] involving removal of her upper right lung. her discharge summary records a diagnosis of upper right pulmonary tuberculosis, thoracoscopic right upper pneumonectomy and hypertension. Treatment on discharge was full rest for two months, regular anti-tuberculosis treatment, avoid catching a cold, respiratory function training and rehabilitation and regular medical examinations. [1] Translated medical and pathology reports Ms Qiao applied for a Subclass 143 visa as a primary applicant on 29 December 2016. A letter acknowledging this application provided by Mr Chun lists him as a non-migrating family member. It is unclear whether he is now a secondary applicant on this visa application or is listed as a non-migrating family member. Offending

Evidence

Evidence Before The Court

While the Tribunal found Mr Chun genuine about his desire to be with his family and assist his daughter, it found him vague and evasive about other aspects of his claims including his claims to fear harm if he returns to China. He sought to improve his claims in oral evidence at the hearing by embellishing previous claims. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if a visa holder has failed to comply with the requirement in s 102 of the Act to provide correct information on applications and passenger cards. To exercise the power to cancel a visa under s 109 of the Act, the Minister must first issue a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance and specified information on how to respond to the particulars. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. In this case, the Department received information that Mr Chun has been convicted of offences in China. This was an anonymous allegation and was the subject of a certificate issued under s 375A of the Act. The certificate issued under s 375A of the Act was provided to Mr Chun before the hearing, and he was invited to comment on the validity of the certificate. In submissions dated 27 January 2022, Mr Chun’s representative acknowledged the certificate was valid, but sought particulars to be given under s 359A of the Act. The information covered by the certificate was the anonymous allegation that Mr Chun had been convicted of an offence. It also covered details of officers of the Department including names, emails and telephone numbers. The Department subsequently obtained more detailed information about the offence from other sources, and this information was given to Mr Chun and addressed in his responses to both the Department and to the Tribunal, as well as being contained in the decision of the delegate provided to the Tribunal. As a result, the Tribunal does not consider there are particulars in the anonymous allegation of a conviction that were required to be put to Mr Chun because further and better particulars had been provided by the Department and recorded in the decision of the delegate. The Tribunal does not consider it is necessarily contrary to the public interest to release officer names, emails and telephone numbers, however as none of this information comprises information that would be the reason or part of the reason for affirming the decision under review, it does not fall to be determined. In the present matter, on the basis of information that Mr Chun had been convicted of an offence that was not disclosed on his incoming passenger cards, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107. The notice under s 107 specifies the required information and the notice issued under s 107 complies with the statutory requirements.Was there non-compliance as described in the s 107 notice?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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