Lee (Migration) - [2024] AATA 178

Lee (Migration) [2024] AATA 178 (2 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tat Wing Lee
REPRESENTATIVE:  Mr Mark Edward Northam
CASE NUMBER:  2307368
HOME AFFAIRS REFERENCE(S):          BCC2021/922584
MEMBER:R. Skaros
DATE:2 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 02 February 2024 at 12:45pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information and bogus document provided with previous visa application – English language test – forensic examination of photos provided with application and test – photo provided with test matches another identity – discretion to cancel visa – non-compliance admitted – course of action suggested by agent and applicant paid additional fee – knowing participation – no attempt to notify department – length of residence – visa, study and work history – church, social and community activities – supporting statements – consequential cancellation of partner and child’s visas – applicant and partner from different countries – no current right to reside permanently in each other’s country, and political and language difficulties – best interests of child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 101(b), 103, 105, 107, 107A, 109(1), 140(2)
Migration Regulation 1994 (Cth), Schedule 2, cl 187.232
CASE
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a 37-year-old citizen of Hong Kong. He is married to Ms Hsin-He Yang, who is a citizen of Taiwan, and they have a son (Ze-Hong Lee) who is almost three years old. The applicant first travelled to Australia in 2014 as the holder of a working holiday visa. He was granted a further working holiday visa onshore, after which he was granted a Regional Sponsored Migration Scheme (Subclass 187) visa. On 13 April 2021 the applicant was granted a Resident Return (Subclass 155) visa.
The delegate cancelled the Subclass 155 visa on the basis that the applicant had not complied with s 101 and s 103 of the Act in relation to the previously held Subclass 187 visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Ms Yang. 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. The representative attended the hearing.
For…

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 Lee (Migration)

Details

AGLC: Lee (Migration) [2024] AATA 178
Case: [2024] AATA 178
Decision Date: 2 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa held by Mr. Lee. The cancellation was based on allegations that Mr. Lee had provided incorrect information and a bogus document in support of a previous visa application, specifically concerning his English language test results. The Tribunal was tasked with determining whether Mr. Lee had indeed failed to comply with the relevant provisions of the Migration Act 1958 and, if so, whether his visa should be cancelled.

The central legal issues before the Tribunal were whether the evidence established non-compliance with sections 101 and 103 of the Migration Act, as particularised in the notice issued under section 107, and if such non-compliance was found, whether the discretion to cancel the visa should be exercised. The non-compliance alleged related to the provision of an English language test report form where the photograph on the document was found by a forensic examiner to be inconsistent with the photograph provided with Mr. Lee's visa application, suggesting it was not his document.

The Tribunal found that while the notice issued under section 107 complied with statutory requirements and that the forensic evidence indicated non-compliance with sections 101 and 103 of the Act, it ultimately decided to set aside the cancellation decision. In exercising its discretion, the Tribunal gave significant weight to factors weighing against cancellation, including Mr. Lee's contributions to the Australian community through donations and volunteer work, the consequential cancellation of his partner's and son's visas, and crucially, the best interests of his nearly three-year-old son. The Tribunal considered evidence that the son would experience a significantly better quality of life in Australia and that the family unit would be disrupted if Mr. Lee were forced to leave, with his partner and son relocating to Taiwan and Mr. Lee to Hong Kong, due to political and social difficulties in each other's countries.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Lee's Subclass 155 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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. 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. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa. 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? 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 ss 101 and 103 in the following respects: On 11 March 2016 the applicant applied for the Subclass 187 visa on the basis of a nomination made by KG & SE Nettleton. The nomination identified the applicant as the nominee for a position in the occupation of Personal Assistant. The nomination was approved on 19 January 2017. On the visa application form it was indicated that the applicant had undertaken an English language test within the last 36 months, details of which were provided. It indicated that the applicant sat the IELTS test on 13 June 2015 in which he achieved ‘Superior’ English. A copy of the IELTS Test Report Form (IELTS TRF), dated 25 June 2015, was provided in support of the application. Based on the above information, as well as meeting other relevant criteria, the applicant was granted the Subclass 187 visa on 30 January 2017.Subsequent information received by the Department On 6 May 2020 a departmental officer requested the Forensic Examination unit to conduct a facial image comparison on two images held by the Department for the applicant; the first being the photograph provided with the visa application and the second being the photograph on the IELTS TRF. The examination was undertaken by a Forensic Facial Image Examiner and in a report, dated 3 June 2020, the Examiner concluded that the facial images have been compared and there are indications that they are not the same person.

Decision

Reasons for decision

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.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.R. SkarosSenior MemberATTACHMENT – 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.97InterpretationIn 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 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.99Information 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.100Incorrect 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.101Visa 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.103Bogus 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).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‑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.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.

Ratio Decidendi

Legal Principle Established

The Tribunal accepts that the applicant and his family have contributed to the Australian community through their donations and volunteer work and gives this consideration some weight against cancellation of the visa. Policy considerations While the above 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 Procedures 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 would be consequential cancellations under s 140 Cancellation of the applicant’s visa would result (and has resulted) in the consequential cancellation of Ms Yang and the child’s Subclass 801 visas under s 140(2) of the Act. This consideration weighs against cancellation of the applicant’s visa. The best interests of the applicant’s son Departmental policy provides that if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28]. The child whose interests would be affected by the cancellation is the applicant and Ms Yang’s son, who is almost three years old. If the applicant’s visa is cancelled, then Ms Yang and the child’s Subclass 801 visas will remain cancelled. The applicant and Ms Yang contend that it would be in the best interest of their son that the visa not be cancelled as this would allow them to live together in Australia as a family. The applicant and Ms Yang gave evidence that their son’s quality of life in Australia would be much better than in Taiwan, which is where he would relocate with Ms Yang if he cannot remain in Australia. The applicant and Ms Yang’s evidence is that if they had to leave Australia, Ms Yang would return to live in Taiwan with their son and the applicant would return to Hong Kong. When asked why she could not go and live in Hong Kong with the applicant so that the family unit can remain intact, Ms Yang said that as a Taiwanese citizen she would experience significant difficulties. She said the political environment was not welcoming, there is no freedom of speech, they had vastly different ideologies and there were restrictions on personal freedoms. In his evidence to the Tribunal, the applicant said that he would not be welcomed in Taiwan due to political tensions and the potential war with China. The applicant acknowledged, as remarked by the Tribunal, that he could apply for residency to live and work in Taiwan, but said the social atmosphere was hostile and that his accent is discernible and that it would be difficult for him to integrate.