Hu (Migration) - [2021] AATA 2941

Hu (Migration) [2021] AATA 2941 (8 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jianmin Hu
Ms Xiaoqing Zeng
Miss Yahui Hu
Mr Huilong Hu
Miss Zengyue Hu
CASE NUMBER:  2017808
HOME AFFAIRS REFERENCE(S):          BCC2020/1271551
MEMBER:Jason Pennell
DATE:8 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 8 June 2021 at 11.24am

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – incorrect information in visa application – English language proficiency – bogus document – IELTS Test Report – test undertaken by imposter – consideration of discretion – applicant’s present circumstances – significant social and educational ties to Australia – valued employee for sponsored employer in regional Australia – best interests of children – Australian citizen child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 99, 100, 101, 103, 107, 107A, 109, 140
Migration Regulations 1994 (Cth), r 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 Home Affairs to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (‘the Act’).
2.The delegate cancelled the Subclass 187 visa on 8 December 2020 on the basis that the applicant did not comply with s.101(b) and s.103 of the Act, having determined that the, applicant provided incorrect information and provided a bogus document in relation to his English test supplied in support of his Subclass 187 visa application to the Department of Home Affairs (‘the Department’).
3.The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
4.For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant, Mr Jianmin Hu (‘the applicant’). The other visas of Ms Xiaoqing Zeng, Miss Yahui Hu, Mr Huilong Hu and Miss Zengyue Hu were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
5.The applicant appeared before the Tribunal on 31 May 2021 to give evidence and present arguments. The hearing was conducted via video conference using the Microsoft Teams program. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant.…

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 Hu (Migration)

Details

AGLC: Hu (Migration) [2021] AATA 2941
Case: [2021] AATA 2941
Decision Date: 8 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of the applicant, Mr. Hu. The cancellation was based on the ground that the applicant had provided incorrect information in his visa application, specifically concerning his English language proficiency, by submitting a bogus IELTS Test Report where the test was undertaken by an imposter.

The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of the Migration Act 1958, and if so, whether the discretion to cancel his visa should be exercised. The legal issues centred on the provision of a bogus document and the subsequent consideration of the applicant's present circumstances in exercising the cancellation discretion.

The Tribunal found that there had been non-compliance by the applicant as described in the notice given under s.107 of the Act. However, in exercising its discretion, the Tribunal gave considerable weight to several factors. These included the applicant's significant social and educational ties to Australia, his status as a valued employee for his sponsoring employer in regional Australia, and the potential impact on his children. Crucially, the Tribunal noted that the applicant's youngest child was an Australian citizen, and requiring the family to return to China would necessitate the child renouncing his Australian citizenship to access essential state services like education and healthcare, a consequence the Tribunal found contrary to the purpose of the Act.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa. The Tribunal noted that this decision was made marginally in the applicant's favour, acknowledging the seriousness of the breach of sections 101(b) and 103 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant submits that if his visa is cancelled Ruilie Jack Hu will be required to leave Australia. Its claimed that if he is to travel to China, he would become stateless. To travel to China with his parents the child will be required to obtain a visitors’ visa. It is claimed that at this time due to the Covid-19 pandemic that he would not be able to obtain a visitors’ visa with China having ‘suspended all visas on arrival, including visitor visa.’[21][21] >The Tribunal notes that Chia does not recognise dual citizenship. As such, if the applicant’s child returns to China with his parents, as an Australian citizen, he would be required to travel to China on a visitor’s visa. As such it’s likely that once his visa expires, he will be repatriated to Australia by the Chinese government. Alternatively, if the child is to return to China with his parents and is able to obtain some other visa to remain in the country on a permanent basis as an Australia Citizen, then he will not be able to access the Chinese household registration system (‘hukou’). The hukou system ties a person’s access to state services, including health and education to an individual’s place of birth or depending on their circumstance’s their parents place of birth.[22] As an Australian Citizen the applicant’s child would not be entitled to obtain hukou. As such, he would not be able to access state benefits including education and health services.[22] DFAT Country information Report – Peoples Republic of China dated 3 October 2019 (DFAT Report) @ p.51In China children’s citizenship is obtained through their parents.[23] As such having Chinese parents the applicant’s child would be able to obtain Chinese citizenship upon his return to China. However, this would mean giving up his Australian Citizenship. The term ‘returned overseas Chinese couple’ refers to couples who have lived permanently in a foreign country having given up their long term permanent or lawful right of residence but have returned to China. In this case the applicant and his wife have lived permanently in Australia and have given up their household registration. Only children born after they return to China would be entitled to registration in accordance with the regulations.[24] As such the applicant’s youngest child would be considered surplus. He would be entitled to return to China for an accumulated period of 18 months within a two-year period. To obtain household registration the applicant’s youngest child must give up his Australian citizenship and become a Chinese citizen. Upon application for hukou registration for his youngest child the applicant would be required to pay a social compensation fee. [23] DFAT Report @ p.51[24] ibidTherefore, while it is possible for the applicant’s child to obtain household registration in China, it would require his giving up his Australian Citizenship. The child is approximately two and half years old. As such it would be matter for the applicant and his wife as the child’s parents to give up the child’s Australia citizenship on his behalf upon his return to China. That is his Australian Citizenship would be removed without his direct knowledge or consent. While the Act is designed to regulate the flow of non-citizens into and out of Australia, it is contrary to the purpose of the Act to effectively require a person to give up their Australian Citizenship, legitimately obtained. In the event the applicant is forced to return to China, his youngest child will also be required to return to China, upon which, he will be required to become a Chinese citizen and give up his Australian citizenship in order to obtain access to the state services. This fact is compelling to the Tribunal and as such it places great weight on this consideration in the applicant’s favour. Mandatory legal consequences. If the visa is cancelled, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia. In addition, the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 because of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements. The Tribunal gives some weight to this consideration in the applicant’s favour. Other relevant considerations There are no other relevant matters that require consideration. 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 not be cancelled.The applicant should know that the Tribunal takes the breach of section 101(b) and section 103 of the Act very seriously and as such has only marginally made this decision in the applicant’s favour. The fact that the Department’s decision was not solely based on the wrong information provided the fact that the applicant has worked in regional Australia since his arrival in Australia and the fact that he is a valued member of his sponsors business, the social and education al upheaval that would be caused to the applicant’s children and the fact that his youngest child is an Australia resident are all factors that the Tribunal has given considerable weight in making the decision to set aside the decision under review and substitute a decision not to cancel the applicant’s visa. DECISIONThe Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.The Tribunal has no jurisdiction with respect to the other applicants.Jason PennellSenior MemberATTACHMENT – 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.InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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 correctA 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.Bogus documents not to be given etc.A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).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(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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

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