Ho (Migration)

[2020] AATA 5723

Ho (Migration) [2020] AATA 5723 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Nhat Ho

CASE NUMBER:  1930705

DIBP REFERENCE(S):  BCC2018/3882457

MEMBER:Kira Raif

DATE:7 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

Statement made on 07 December 2020 at 3:15pm

CATCHWORDS

MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – incorrect information in visa application – member of the family unit – secondary applicant married prior to visa grant – obligation to inform about change in circumstances – financial and other support for parents – primary carer for parents – applicant’s wife dependent on his residence – financial hardship – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 101-105, 107, 109
Migration Regulations 1994, rr 1.12, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 143 (Contributory Parent) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in September 1990. He was granted a Contributory Parent (Migrant) Class CA visa on 28 July 2017 as a member of the family unit of his father. On 10 July 2019 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 104 of the Act. The applicant provided his written response and his visa was cancelled on 29 October 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s relatives and a friend. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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.

   Did the notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. 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. 104 of the Act.  

9. The applicant provided to the Tribunal a copy of the primary decision, which contains the following information.

10. In April 2012 the applicant was included in the Contributory Parent (Temporary) visa application made by his father and that visa was granted in March 2014. On 3 November 2015 the applicant’s father made the applicant for the Contributory Parent (Migrant) visa and included the applicant as a dependent. In response to Question 30 concerning the applicant’s relationship status, it was stated that the applicant ‘never married or been in a de facto relationship’. The applicant signed the declaration at Question 46 of the application form. Importantly, that declaration included a statement that the applicant would inform the Department of any changes to his personal circumstances while his application is being considered.

11. The applicant also submitted from 47A. At Question 16 of that form, which deals with his relationship status, the applicant stated that he ‘never married or been in a de facto relationship’. The applicant was found to be a member of the family unit of his father, the primary visa applicant and he was granted the visa on 28 July 2017.

12. In October 2017 the applicant sponsored Ms Pham for a Partner visa in subclasses 309 and 100. Ms Pham stated in the application form 47SP that she and the applicant committed to a relationship in January 2016 and married in Vietnam on 20 March 2016. The same information was provided by the applicant in the sponsorship form, confirming that the applicant and Ms Pham married in March 2016 and they submitted a marriage certificate which was registered with the local authorities in Vietnam in May 2017.

13. In his written response to the NOICC the applicant claims, effectively, that he was unaware of the obligation to inform about the changes in his circumstances and his failure to do so was unintentional. The applicant states that his previous migration agent advised him it was acceptable for him to marry and the agent had not advised him of the obligation to inform the Department. The applicant claims that his conduct was beyond his control as he entrusted his matter to his migration agent. The applicant states that he was unaware of the requirements of s. 104 until he received the NOICC. In oral evidence to the Tribunal the applicant also states that he did not inform the Department because he was not aware of the obligation to do that, his English was not very good and he relied on the advice of his agent.

14. The Tribunal does not accept the applicant’s claim because, as noted above, the applicant signed a declaration which clearly set out his obligation to inform the Department about the changes in his circumstances. That is, the applicant was put on notice of that obligation when making the application. In the Tribunal’s view, if the applicant had signed the declaration, he either would have read what he was signing, or should have read the content of the declaration before signing it. It was his obligation to do so.

15. In his declaration of 24 July 2019 the applicant states that the agent filled in the form and had asked him to ‘just sign’. The Tribunal is mindful that by the time the forms were submitted, the applicant was an adult and may have been expected to have some understanding of formal processes. He had the capacity, and in the Tribunal’s view, the responsibility, to acquaint himself with the content of a document before signing it, whatever he was told by his then migration agent. It is not sufficient for the applicant to state that he was not told. Having signed the form, the Tribunal does not accept the applicant was unaware of his obligations to the Department.

16. Further, even if the Tribunal were to accept the applicant’s evidence that he was unaware, the Tribunal does not consider that lack of knowledge of the law excuses non-compliance with it. That is, even if the applicant genuinely did not know he had to inform the Department about changes in his circumstances, his failure to do so would be in breach of s.104 of the Act. However, in this case, as the applicant had signed the declaration on the form, the Tribunal finds that the applicant was put on notice of his obligations.

17. The Tribunal finds that when making the application, the applicant indicated on the form that he was never married or been in a de facto relationship. That answer became incorrect when the applicant’s circumstances changed, at least by May 2017 when his marriage was registered with the authorities in Vietnam (and possibly in March 2016 when the couple held the marriage ceremony and could be said to have commenced a de facto relationship, although it is not necessary for the Tribunal to make that determination). The applicant concedes that he did not inform the Minister in writing, as soon as practicable, of the changes in his circumstances. The Tribunal finds that the applicant did not comply with s. 104 of the Act in the way described in the s.107 Notice.

    Should the visa be cancelled?

18. As the Tribunal has decided that there was non-compliance in the way described in the Notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

19. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

20. The correct information is that the applicant was legally married in Vietnam before he was granted the visa.

    The content of the genuine document (if any)

21. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

22. The applicant made the application as a member of the family unit of his father. There is no suggestion that the applicant himself met the primary criteria for visa grant. For example, the applicant was sponsored by his sister and the applicant would not have met the relationship requirements to meet the primary criteria for visa grant.

23. In his response to the NOICC the applicant (through his representative) states that he remained dependent on his father, despite the marriage, and would have continued to meet the member of the family unit criteria for the grant of the visa. With respect, the criteria in r. 1.12 are not limited to dependency but also deal, in relation to a child, with the child’s marital status. To meet the secondary criteria, the applicant was required to establish that he was a member of the family unit of his father. Relevantly, r.1.12 refers to a child other than a child who is engaged to be married or has a spouse or de facto partner [emphasis added]. That is, a child who is married cannot meet the definition of the term ‘member of the family unit’ irrespective of financial dependence. The Tribunal finds that the decision to grant the visa was based, partly, on incorrect information.

    The circumstances in which the non-compliance occurred

24. The applicant submits that he did not intentionally fail to comply with the requirements of s.104 and had no intention to deceive, but his previous agent did not inform him of these obligations. The applicant states that he relied on the advice of his previous representative who informed him he could get married and they trusted that representative. The applicant states that his English was poor and he was unaware of his obligations and if he was aware of the obligation, he would not have married.

25. The applicant informed the Tribunal that his previous agent told him he could get married and sponsor his wife once he obtained permanent residence. The Tribunal is mindful that the issue here is not the applicant’s marriage but his failure to inform the Department about the marriage, being a change in his circumstances. The applicant was indeed able to marry, however such marriage gave rise to obligations under s. 104 of the Act. For the reasons stated above, the Tribunal has formed the view that the applicant was put on notice of his obligations by signing the declaration on the form. The Tribunal does not accept the applicant’s evidence that the breach was beyond his control.

    The present circumstances of the visa holder

26. In his response to the NOICC the applicant states that since their arrival in Australia more than five years ago, his family has complied with the Australian laws and immersed themselves in the Australia’s culture. They live as part of the community and he spends a lot of quality time with his family. He takes his parents to various activities.

27. The applicant provided additional evidence to the Tribunal. In his written submission of 12 November 2020 the applicant provided a number of declarations from relatives, family friends and other parties. These refer to the applicant’s activities, the help he provides to his family and his parents in particular and stated that without the applicant’s help, it would be difficult for the family to manage. The applicant’s sister provided a declaration stating she would not be able to take care of the parents without the applicant’s help. The applicant presented medical and other evidence relating to his parents. In oral evidence the applicant spoke about the support he provides for his parents, stating he is the only person who provides financial and other support for his parents and without him, there is nobody else who can provide that support to his parents. The applicant described his parents’ poor health, and their physical and financial reliance on him. The applicant’s sister also gave oral evidence to the Tribunal and explained that she is the sole breadwinner in her family due to her husband’s injury, and she has two young children, so she cannot provide the care to her parents.

28. The Tribunal accepts the parties’ evidence that the applicant is the primary carer for his parents and provides essential support to his parents and family in general. The Tribunal also accepts the parents rely on the applicant financially, emotionally, as well as his physical support. The Tribunal is mindful that if the applicant is the primary caregiver to his parents, he may be eligible to seek a Carer visa in the future.

29. The applicant also provided evidence of his employment and income and the broader financial circumstances of the family and the Tribunal accepts that his parents rely on the applicant financially and that he is responsible for mortgage repayments. The Tribunal accepts that the applicant provides physical, financial, emotional and other support to his family. The applicant provided several medical reports relating to his parents and evidence that he provides care to his parents and expanded on that evidence in oral evidence to the Tribunal. The Tribunal accepts that there is support in the community for the applicant’s presence in Australia. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the applicant was required to leave Australia.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

30. Nothing adverse is known about the applicant’s subsequent behaviour or his obligations.

    Any other instances of non-compliance by the visa holder known to the Minister

31. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

32. The applicant had registered his marriage in May 2017 and was granted the permanent visa in July 2017. His obligation to inform of the changes in circumstances arose when the answer became incorrect and existed until the grant of the visa. Close to three and a half years passed since the non-compliance occurred.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

33. There are no other known breaches of the law.

    Any contribution made by the holder to the community.

34. The applicant provided evidence of his study, employment and payment of taxes. In oral evidence the applicant spoke about his voluntary work in the temple and donation of blood. The Tribunal accepts that evidence and accepts that the applicant has made a contribution to Australia.

35. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

36. If the applicant’s visa is cancelled, unless he is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for him to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements he may have acquired as an Australian permanent resident.

37. The applicant would also be unable to act as a sponsor for his partner, if he is not a holder of a permanent Australia visa.

    Whether there would be consequential cancellations under s.140

38. There are no persons who would be subject to a consequential cancellation under s. 140. In his written submission to the delegate in response to the NOICC dated 24 July 2019 the applicant’s representative Mr Jack Ta submits that due to circumstances beyond the applicant’s control, the applicant and his family are at risk of having their visas cancelled. It is not clear to the Tribunal on what basis that statement is made, as there is nothing before the Tribunal to indicate that the family’s visas are at risk of being cancelled.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.   

39. The applicant does not claim there are any children who would be affected by the cancellation of the visa. The applicant does not claim that Australia’s non-refoulement obligations arise in this case. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members.

1. As noted above, there is evidence before the Tribunal relating to the parents’ medical needs and the applicant’s provision of care to his parents. There is also a psychological report relating to the applicant’s father which outlines the adverse effect that the cancellation of the applicant’s visa would have on him. In oral evidence, the applicant told the Tribunal that without his support, there will be nobody else who could provide support to his parents. The applicant states that his sister cannot support their parents because of her husband’s circumstances and also because she has her own family responsibilities. The applicant’s father spoke about his poor health and the support he receives from the applicant. While the Tribunal accepts that due to family responsibilities the applicant’s sister cannot provide 24 hour daily care, the Tribunal does not accept that she cannot provide some degree of care, including emotional support, to her parents. The Tribunal is also of the view that the applicant can continue to provide emotional support whether he is in Australia or resides overseas as there would be nothing precluding electronic contact.

2. The applicant told the Tribunal that they have savings of about $15,000 - $20,000 which is not sufficient to cover his parents’ long term needs. The applicant said that they sold their assets in Vietnam to travel to Australia and they bought a house in Australia, which is in his and his mother’s name and is mortgaged but they might to have to sell the house if his visa is cancelled as they cannot afford the repayments. The applicant states that his parents do not work and rely on him for financial support. The applicant states that he works as a nail artist and it may be difficult for him to find that job in Vietnam and the representative submits that his salary in Vietnam would be very low and he would be unable to support the family in Australia. The applicant also notes that he left Vietnam several years ago and he does not know what changes occurred in the country. The applicant concedes that he may be able to find a job in Vietnam but his main concern is physical care for his parents. The representative submits hat if the family has to sell the family home, the parents can become a burden on the society. The Tribunal accepts that the applicant provides financial support to his parents and that such support will be significantly diminished, at least (if not withdrawn) if the applicant was to live in Vietnam. The Tribunal is mindful that the family has some savings and the Tribunal is not satisfied that some degree of financial support cannot be provided by the applicant’s sister. Nevertheless, the Tribunal accepts that considerable financial hardship, as well as other hardship, would be caused to the family by the cancellation of the applicant’s visa.

3. As noted above, the Tribunal also accepts that the applicant acts as a carer for his parents and that hardship may be caused to the applicant and his family if the visa is cancelled, including due or diminution or the withdrawal of physical, emotional and financial support that the applicant presently provides.

4. Mr Walker spoke in oral evidence about the sacrifice the applicant made to have his family in Australia and to support his parents. Mr Walker spoke about the hardship to the family if the visa is cancelled and of the contribution the applicant has made to Australia. Mr Walker states that it is not in the applicant’s nature to mislead and he referred to the applicant’s good character. Ms Phan also spoke of the good character of the applicant and the close family relationship. The applicant’s sister also gave evidence speaking of the applicant’s support for their parents. Ms Ho explained why she is unable to provide the requisite care due to family and financial circumstances. Ms Ho explained her parents’ health condition. The Tribunal accepts her evidence.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa as the applicant did not comply with s. 104 of the Act. The applicant concedes the breach.

6. The Tribunal has accepted the applicant’s evidence that he is the primary caregiver to his parents, who are of poor health. The Tribunal accepts that the applicant provides financial, physical and emotional support to his parents and while the Tribunal is not satisfied that such support will cease in its entirety if the applicant was to leave Australia (the Tribunal has formed the view that emotional and some degree of financial support may continue), nevertheless, the Tribunal accepts that considerable hardship will be caused to the applicant and his family if the visa is cancelled. The Tribunal accepts that the applicant makes a contribution to society, performs voluntary work and is considered by others to be a person of good character.

7. The Tribunal accepts that the applicant is well settled in Australia, that he is employed and has contributed to the community. The Tribunal accepts that over three years passed since the non-compliance. The Tribunal acknowledges that the applicant and his family have expressed remorse. The Tribunal acknowledges the character references and the applicant’s standing in the community.

8. The Tribunal finds that there are strong reasons why the visa should not be cancelled.

9. Against this consideration, the Tribunal places greater weight on the circumstances in which the non-compliance occurred. The Tribunal finds that the applicant was put on notice of the obligation to inform and the Tribunal does not accept the applicant’s evidence that he was ignorant of it. Importantly, the Tribunal places significant weight on the fact that the decision to grant the visa was based on incorrect information. The Tribunal considers it highly significant that the applicant’s marriage would have precluded him from meeting the requirements of being a member of the family unit of his parents. That is, if the correct information was known, the applicant would not have been granted the visa. The applicant was no longer able to meet the definition of being a member of the family unit and, if he did inform the Department of the changes in his circumstances, he is likely to have been required to withdraw the application or his application is likely to have been refused. In the Tribunal’s view, that consideration outweighs others.

10. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

    Kira Raif
    Senior Member