Jian (Migration)

[2018] AATA 5748

Jian (Migration) [2018] AATA 5748 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Min Jian

CASE NUMBER:  1707801

DIBP REFERENCE(S):  BCC2016/3161432

MEMBER:Stavros Georgiadis

DATE:3 December 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Statement made on 3 December 2018 at 4:24pm

CATCHWORDS

MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visas – Subclass 190 Skilled - Nominated – incorrect information in visa application – applicant in continuing partner relationship with former spouse – relationship to the exclusion of all others – applicant volunteered evidence of infidelity – physical, emotional and psychological distress to current spouse due to disability – Convention of the Rights of the Child – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 5, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, 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 Immigration to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act). 

2. The delegate cancelled the visa on the basis that the applicant did not satisfy s.101(b) of the Act relating to information provided. The delegate considered incorrect information had been provided on the application for the visa as the delegate considered the applicant was in a continuing partner relationship with his former spouse, Huisheng Wang and was therefore, not in an exclusive spousal relationship to satisfy the s.5F(2) definition despite being in a relationship with his current spouse, Yi Peng.  The delegate considered the factors for cancelling the visa outweighed the factors for not cancelling. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his current spouse, Yi Peng, who is an Australian permanent resident. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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. Extracts of the Act relevant to this case are attached to this decision.

8. 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.

9. The applicant submits he is a member of the same family unit (spouse) as the holder of a 190 visa as Mrs Yi Peng is an Australian permanent resident which is the basis upon which the application is made.

10. The Tribunal has had the benefit of hearing from the applicant and his current spouse and also considering further submissions and documentary material provided following the hearing under cover letters of 26 April 2018 and again on 6 August 2018, 8 August 2018 and 13 August 2018.  The further written submissions and material was considered in addition to previous documents and submissions provided to the Department and the Tribunal.

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

11. 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 relates to non-compliance with s.101(b) as the delegate considered incorrect answers had been provided as part of the application for the visa.  The delegate noted:

12. The Tribunal accepts from the certified translation of the Chinese Marriage Certificate provided that the applicant and Yi Peng married on 4 August 2011. The applicant admits infidelity during the early stages of his marriage to his current spouse from August 2011.  He explained to the Tribunal that “because of the divorce and marriage, the time was tight and due to the emotions [displayed by his former spouse he] “couldn’t deal with” at the time saying “[I] had an issue that I didn’t finish” and needed to “calm down” [his] former spouse once she had become pregnant. 

13. The applicant explained to the Tribunal, when asked, that the intimate relationship with his former spouse ended in around November 2011. The translated statement form the applicant’s former spouse, Huisheng Wang, sets out that after divorce and before becoming pregnant with their child, Stephen (DOB 28 June 2012) she occasionally had sexual relations with the applicant.  She states that after falling pregnant (September 2011) she ceased intimate relations with the applicant.

14. The evidence is consistent and the Tribunal accepts, that there was a continuing relationship with the applicant’s former spouse from at least the time the child was conceived approximately one month after the applicant’s marriage in August 2011 until the relationship ended in around November 2011. The Tribunal accepts from the applicant’s oral evidence that there was a continuing relationship with his former spouse at the time of his marriage to Yi Peng and in light of this finds the relationship was not at that time “to the exclusion of all others” for the purposes of meeting cl.5F(2) of the Regulations for a spousal relationship.

15. The Tribunal also accepts the oral evidence that the applicant did not maintain an ongoing partner relationship with his former spouse after finding out in November 2011 that she was pregnant with their second child, Stephen.  The visa applicant emphatically denies making any statement to the the post when interviewed in Ghanzhou in August 2016 that he maintained an ongoing relationship with his former spouse after that time. The Tribunal notes the difficulties by the applicant in giving his evidence from the delayed responses to even straight forward questions, but accepts that the relationship ceased in around November 2011. 

16. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant as incorrect answers were given or provided in the way described in the s.107 notice.

    Should the visa be cancelled?

17. 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).

18. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance which it has done, and have regard to any prescribed circumstances: s.109(1)(b) and (c).

19. 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.

20. Prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, as follows:

    The correct information

21. The Tribunal considers the correct information is that at the material time the applicant was the father of an additional child, Stephen, from his former marriage and also not in an exclusive spousal relationship with Yi Peng for the purposes of s.5F of the Act. Accordingly, the Tribunal considers he was not at that time, a member of the same family unit. This provides no weight in favour of the applicant.

    The content of the genuine document (if any)

22. There was no document and therefore this factor is not applicable.

    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

23. The decision to grant the visa was predicated on incorrect information relating to the visa holder being Yi Peng’s spouse at the material time. As aforementioned, the Tribunal considers this did not meet the definition under s.5F of the Act in respect of a spousal partner and therefore, this provides no weight in favour of the applicant.

    The circumstances in which the non-compliance occurred

24. The Tribunal has observed that the visa applicant had poor memory and struggled to spontaneously respond to even straight forward questions asked of him. The Tribunal does not put this down to issues of his credibility.

25. The Tribunal notes that the visa applicant’s son, Stephen, was not included on the Form 80 but the form was signed and declared to be “complete, correct and up to date in every detail.” The child was not known to Immigration until his Subclass 101 visa application was lodged. Ms Peng told the Tribunal that the couple had discussed this and thought the form was to only include those that were dependents - and that as the youngest child, Stephen was not dependent on her husband, he was not included. The Tribunal places some weight to this factor.

    The present circumstances of the visa holder

26. The applicant lives in South Australia with his current wife and oldest son. Since first arriving in Australia on 14 December 2014 on a Subclass 190 visa he has made several return trips to China. His former spouse lives in China and the applicant visits when he travels there to see his second son, Stephen.

27. The applicant’s submission is that should the visa remain cancelled, substantial difficulty would be caused to his current spouse as she suffers from bilateral dislocation of the hips which has required repeated surgery to address or rectify with ongoing convalescence.  Ms Peng told the Tribunal that the couple plan to travel to China together next year when “my muscles strengthen.” The submission is that refusal of the visa would mean that the applicant’s spouse, an Australian permanent resident, would experience ongoing physical and emotional difficulties and associated adverse psychological distress as due to her disability, she is not able to lift heavy objects, stand for prolonged periods of time (e.g. for cooking), and has limited mobility.  The visa applicant and his spouse told the Tribunal that she relies heavily on the support of the applicant. The Tribunal was able to observe directly at the hearing Ms Peng’s limited mobility entering and leaving the hearing room and her delayed movements which required the use of crutches.  It is quite evident she has significant difficulties with mobility.

28. Ms Peng is also now pregnant to a child with the applicant.  The written submission is that the applicant is supportive of this development and is prepared to submit to a paternity test should this be required. The evidence is that the child is due to be born in March 2019 as confirmed in medical documents provided to the Tribunal since the hearing, which the Tribunal accepts is the case.

29. The PAM 3 guidelines refer to considering other relevant matters for the application, including the degree of hardship that may be caused to the visa holder and any family members. The Tribunal has considered the recent development of Ms Peng’s pregnancy and impending birth of the couple’s child in March 2019, in the context of her mobility limitations discussed. The Tribunal carefully considered these present circumstances, as acting in favour of the application to not cancel the applicant’s visa as Ms Peng would otherwise suffer substantial hardship because she would be left without the assistance of her husband in attending to day to day activities which now would include attending to the needs of an infant child, in addition to her own.  The Tribunal places significant weight on this.

    The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and any other instances of non-compliance by the visa holder known to the Minister

30. In his response letter to the NOICC the visa applicant claimed (at paragraph 10) that he had custody of Hou Tong in 2011 whereas, this was not the case until two years later from 15 October 2013. The provision of incorrect information in response to the NOICC relating to non-compliance with s.101(b) of the Act leads the Tribunal to place some weight on this factor as acting against the application.

31. There are no other instances of non-compliance by the visa holder known to the Minister.

    The time that has elapsed since the non-compliance

32. A period of more than four years has elapsed since the visa applicant was granted the Subclass 190 visa on 11 July 2014.  The Tribunal considers a considerable period of time has lapsed since non-compliance that has led to new developments discussed above in respect of the applicant’s current circumstances.  The Tribunal places some weight on this passage of time.

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

33. There is nothing before the Tribunal to suggest any breach of law by the applicant since the non-compliance.  The Tribunal places weight on this factor in favour of the application.

    Any contribution made by the holder to the community.

34. There is no information before the Tribunal in respect of any contribution by the visa applicant to the community.  No weight is given in respect of this factor.

    Other factors

35. There would be no consequential cancellations under s.140 of the Act of persons in Australia.

36. There is no information before the Tribunal to suggest that the visa cancellation would impact Australia’s international obligations, or be in breach of non-refoulement obligations, nor that the visa holder has applied for status as a refugee or invoked Australia’s protection obligations.

37. There is also no information to suggest any breach of the Convention of the Rights of the Child. In considering the best interests of the child, should the older child, Hou Tong be required to return to China, there is evidence of potential support for him despite being a minor, as his mother is resident there together with his younger brother, Stephen.  Having lived in China during the first few years of life, Hou Tong would be reasonably familiar with the Mandarin language and Chinese way of life which would therefore, cause somewhat less impact of any change from Australia to reduce consequential hardship. The Tribunal notes also that he has travelled to China on at least 3 occasions since leaving there and in this way maintains some ties with his Chinese cultural background. The above factors cause the Tribunal to give little weight to these as acting in favour of the application.

38. Should the visa holder become an unlawful non-citizen due to cancellation of his visa, he is liable to detention under s.189 of the Act with removal under s.198 of the Act.  Consequently, the younger child’s pending Class AH (Subclass 101 Child) visa will be refused as there is no sponsor in Australia. The Tribunal places little weight on this factor in favour of the application as a sponsor is a legal requirement to be met for the grant of that visa.

39. 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. However, having regard to all the relevant circumstances, and in particular the weight of the current circumstances and the passage of time, the Tribunal concludes that the factors weighing in favour of not cancelling the visa outweigh those in favour of cancellation. Having considered all the relevant circumstances, as discussed above, the Tribunal concludes, on balance, that the visa should not be cancelled.

    decision

40. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

    Stavros Georgiadis
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (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.

    97Interpretation

    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).

    98Completion 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.

    99Information 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.

    100Incorrect 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.

    101Visa 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.

    107Notice 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.

    108Decision 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.

    109Cancellation 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.