Li (Migration)

[2023] AATA 3008

Li (Migration) [2023] AATA 3008 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:Ms Yuk Wa Li
Mr Sung Fai Leung

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2302606

HOME AFFAIRS REFERENCE(S):          BCC2023/647514

MEMBER:P. Maishman

DATE:14 September 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 801 (Spouse) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 14 September 2023 at 1:18pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in the visa application – applicant overstayed in another country for several years – identity details – medical conditions of the sponsor – contribution to the community – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 48, 101, 107, 109, 140
Migration Regulations 1994, rr 2.12, 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 Home Affairs to cancel the first named applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s 101 of the Act by providing incorrect answers on her visa application form. 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. 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 (the applicant). The other visa was 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 applicant.

4. The applicants appeared before the Tribunal on 27 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Gerald Carl Shaw, and the second named applicant’s wife Miaoqin Wang.    

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review.

7. 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

8. 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.

9. 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.

10. The Tribunal had before it a copy of the Department’s file. Attached to the file is a non-disclosure certificate issued 28 February 2023 pursuant to s 375A of the Act. The certificate relates to documents CLD2023/4932214 and CLD2023/4932323 of file BCC2023/647514.

11. The applicant gave the Tribunal a copy of the delegates decision record with her application for review. The applicant gave the Tribunal submissions and documents on 8 March 2023; 20, 21 and 26 April 2023; 5 June 2023; and 14 and 23 July 2023.

    Nondisclosure certificate – s 375A

12. The nondisclosure certificate dated 28 February 2023 relates to documents CLD2023/4932214 and CLD2023/4932323 of file BCC2023/647514. The certificate claims release of the documents is contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.

13. The Tribunal wrote to the applicant on 29 March 2023 with a copy of the nondisclosure certificate and inviting her to comment. The Tribunal did not receive a response addressing the certificate. At hearing the applicant did not dispute the certificates validity.

14. The Tribunal observes the documents covered by the certificate generally detail the Departments complex investigation into matters involving parties and agencies.

15. The tribunal is satisfied that the documents identified in the certificate would, if they were released, disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would, or be likely to, prejudice the effectiveness of those methods.

    Adverse Information – s 359AA/359A

16. The information contained in the documents covered by the nondisclosure certificate is adverse to the applicant’s case. The Tribunal adopted the procedure in s 359AA to put the gist of the adverse information to the applicant at hearing. The applicant denied she had broken any laws and stated she is a law-abiding citizen. At the applicants request the Tribunal allowed additional time to provide a response in writing.

17. On 30 June 2023 the Tribunal wrote to the applicant pursuant to s 359A of the Act. The Tribunal confirmed the protected information was contained in a written report prepared by the Department and case notes prepared by Department officers. The Tribunal’s letter outlines the particulars of the information, why the information is relevant, and the consequences of the information relied upon.

18. On 14 July 2023 the applicant provided a response addressing the Tribunal’s notice and a number of documents in support. In summary the applicant rejects the allegations. The applicant provided a number of letters from clients and staff denying inappropriate conduct at the applicant’s businesses. The applicant submits that given the seriousness of the allegations it would be expected that charges would be laid. The applicant provided police reports from New Zealand and Australia confirming she has no criminal record. The applicant submits Australian Border Force has taken no action against her and neither has AUSTRAC. The applicants submits the protected information should be disregarded because it appears to be a mixture of information and suspicion. The applicant owned and operated massage premises. She submits her staff have keys to the businesses and if any unlawful conduct occurred behind closed doors the applicant would not know. The applicant further observes that the delegate made a finding that there is no information before the Department to indicate that there have been any breaches of the law since the non-compliance (2 November 2016).

19. The Tribunal observes the documents protected by the nondisclosure order contain allegations the applicant is significantly involved in serious matters that are contrary to the law. The report containing those allegations was completed in October 2020 but it does not appear to the Tribunal that the applicant was invited to comment on any of those serious allegations prior to the applicant appearing at the Tribunal.

20. The allegations contained in the report are of great concern to the Tribunal. However it is apparent the delegate did not consider the information to be relevant to its decision so that the applicant should be invited to comment. The delegate further found that there was no information before the Department of any breaches of the law since November 2016.

21. The Tribunal acknowledges the Department has undertaken a complex investigation. However the information contained in the non-disclosable documents are allegations based on suspicion and unsupported by any further actions. The Tribunal attributes no weight to the information contained in the documents that are prohibited from disclosure.

    Did the notice comply with the requirements in s 107?

22. In the present case, there is a question as to whether the notice issued by the Minister’s delegate on 30 January 2023 complied with s 107.

23. The non-compliance identified and particularised in the s 107 notice dated 30 January 2023 was non-compliance with s 101(b) of the Act by providing an incorrect answer on page 16 of  her Partner (subclass 801) visa application on 2 November 2016 about whether she had overstayed a visa in any country and by signing the declaration at page 26 of the form that she had provided complete, correct and up-to-date information in her application. The s 107 notice advises the applicant the relevant New Zealand authority confirmed that the applicant had entered New Zealand on a visitor visa in April 2005 and overstayed that visa between July 2005 and January 2008. The Tribunal is satisfied the s 107 notice complies with the requirement to give particulars of the possible non-compliance of s 107(1)(a).   

24. The s 107 notice provided the applicant the opportunity to comment on the possible non-compliance and required a written response within the period of 14 days: s 107(1A). The s 107 notice complies with the requirement of s.107(1)(b).  

25. The s 107 notice told the applicant if she did not respond to the notice within the time frame a decision to cancel her visa would be made using the information held by the Department; if she wrote to the Department declining to respond the issue of cancellation would be considered and that if it was decided there was non-compliance a decision about whether to cancel the visa would take into account any written response received. The s 107 notice complies with the requirements in s 107(1)(c).

26. The s 107 notice set out the effect of sections 108, 109, 111, and 112 of Act; informed the applicant the obligations under section 104 or 105 of the Act continue; and required her to keep the delegate informed of her residential address. The s 107 notice complies with the requirements in ss 107(d), (e), and (f). 

27. On 14 July 2023 the applicant submitted that the s 107 notice was not compliant with s 107 because it invited the applicant to provide a written response only by email or post. The applicant submitted she was deprived of the opportunity to provide a response in writing with supporting evidence by physical delivery to an office of the Department. The provisions of s 107 do not provide for any particular method of response. In the Tribunal’s view it was open to the applicant to contact the delegate to make alternative arrangements if the methods of response were unsuitable. There is no evidence before the Tribunal that the applicant did so. The Tribunal does not accept the submission the limited response methods suggested in the notice render the notice non-compliant with s 107.

28. The Tribunal is satisfied that the delegate 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?

29. 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 101(b) in the following respects:

    ·By answering ‘No’ to the question on page 16 of the form that asked ‘Have you, or any other person included in this application, ever overstayed a visa in any country (including Australia)?’

    ·By signing under the Declarations section on page 26 of the form ‘Application for migration to Australia by a partner’ that the information provided was complete, correct and up-to-date.

30. On 17 February 2023 the applicant provided a written submission dated 6 February 2023 responding to the s 107 notice. The applicant confirmed she overstayed her New Zealand visitor visa from April 2005 to January 2008 and that the answer on page 16 question 72 of the form 47 SP should have been ‘yes’. The applicant confirmed in her oral evidence that she had overstayed her visitor visa and the correct answer to the question should have been ‘yes’. After the hearing the applicant provided a further submission acknowledging she incorrectly answered the question in the negative.

31. The Tribunal finds the applicant’s answer ‘No’ to question 72 on page 16 is an incorrect answer. The applicant overstayed her visa for New Zealand between July 2005 and January 2008 . The applicant gave a further incorrect answer when she signed the visa application form at page 26 declaring to have provided complete, correct and up-to-date information in her application.

32. The Tribunal is satisfied the applicant did not complete her Partner (subclass 801) visa application form in such a way that no correct answers were given as required by s 101(b) of the Act.

33. For these reasons, the Tribunal finds that there was non-compliance with s 101(b) by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

34. 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).

35. 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 reg 2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

    The correct information

36. The correct information is that the applicant overstayed her New Zealand visitor visa for two and half years from July 2005 to January 2008.  

37. The applicant’s non-disclosure of her previous identity denied the delegate information about factors material to its consideration about the grant of her visa. The Tribunal gives the correct information weight in favour of cancelling the visa.

    The content of the genuine document (if any)

38. This factor is not relevant to this application.

    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

39. The applicant initially claimed in her submission dated 6 February 2023 the visa was not granted based on the incorrect information. After the hearing, on 14 July 2023 the applicant made an alternative submission the decision to grant the visa to the applicant was based partly on the incorrect answer because over staying her New Zealand visa was relevant generally to the assessment of her character.

40. The applicant submits however that over staying in New Zealand would not have disqualified the applicant from being granted the visa, noting current New Zealand and Australian police checks suggest the applicant has no criminal record.

41. The applicant’s visa was granted having assessed her relationship with her sponsor to be genuine. The delegate was denied the opportunity to consider the correct information and made its decision partly based on the incorrect information provided by the applicant. Had the delegate been aware of the correct information it may, or may not, have granted the visa.

42. The Tribunal gives this factor some weight in favour of the exercise of the discretion to cancel the visa.

    The circumstances in which the non-compliance occurred

43. On 6 February 2023 the applicant provided a written submission claiming she overstayed her visa because she was unwell. The applicant denied it was her intention not to close that she had overstayed her visa which she claims as evidenced by her declaring she had been there. The applicant told the Tribunal at hearing that her sponsor completed her visa application form by transcribing from a previous Subclass 461 visa application. She would clarify with her sponsor details not contained on the previous Subclass 461 form or information he did not know.

44. The applicant claimed retaining her previous visa application form allowed her to remember such things as the house number for an address in Vancouver at which she lived 10 years prior. The applicant denied the Tribunal’s suggestion that retaining her previous lodged visa application equally allowed her to accurately recall incorrect or misleading information previously provided to the Department.

45. The applicant has indicated that she did not receive assistance in completing the visa application at Part K page 21 of the visa application form.

46. The Tribunal does not accept the provision of incorrect information by the applicant was reckless rather than intentional. The flexibility and integrity of Australia’s migration system is reliant on applicants to record relevant information without providing incorrect answers and on the applicant’s evidence, she provided incorrect information on two separate visa applications. 

47. The Tribunal gives this factor some weight in favour of the exercise of the discretion to cancel the visa.

    The present circumstances of the visa holder        

48. The applicant has lived in Australia for nearly 15 years and been in a continuous de facto relationship with the sponsor for eight years. The applicant was the owner of two massage service businesses until May 2023. The applicant and the sponsor have recently retired from employment. The sponsor suffers a number of physical and mental health issues for which he has provided medical reports suggesting he requires the assistance of the applicant to manage.

49. The applicant has resided in Australia for a significant time and her de facto relationship with the sponsor is long-term and continuing. Her sponsor has medical conditions which would be better treated in Australia. The Tribunal accepts that at some future point the sponsors medical conditions may require the assistance of the applicant to be optimally managed.

50. The Tribunal gives the applicant’s present circumstances weight against exercising the discretion to cancel the visa.

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

51. There is no evidence before the Tribunal that the applicant’s subsequent behaviour would raise concerns of her obligations under Subdivision C of Division 3 of Part 2 of the Act.

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

52. There is no information before the Tribunal of other instances of non-compliance.

    The time that has elapsed since the non-compliance

53. The non-compliance occurred on 2 November 2016 when the applicant gave an incorrect answer on her lodged visa application form.

54. The Tribunal gives the time that has elapsed since the non-compliance some weight against exercising the discretion to cancel the visa.

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

1. The Tribunal is unaware of any breaches of the law since the non-compliance and gives this factor some weight against exercising the discretion to cancel the visa.

   Any contribution made by the visa-holder to the community

2. The applicant submits she contributes to the Australian community by helping James Dennis Chapman with free professional massage treatments; participating in church activities and making donations; and helping international students by providing homestay arrangements.

3. Mr Chapman provided a letter in support of the applicant’s character.

4. The Tribunal gives this factor some weight against exercising the discretion to cancel the visa.

   Other Circumstances

5. While the factors (above) 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.

6. The Tribunal has considered 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.

7. The cancellation of the applicant’s visa would result in her being unlawful and subject to detention only in circumstances where she does not apply for another visa to remain lawfully in Australia or does not depart Australia before any visa held by her ceases.

8. The Tribunal also notes that if the applicant’s visa is cancelled, she would be affected by s 48 of the Act and would not be able to make a valid application for a substantive visa in Australia, other than the limited types prescribed in reg 2.12, such as protection and partner visas.

9. The cancellation of the applicant’s visa will result in the consequential cancellation of the second named applicant’s visa. The second named applicant’s visa was granted because he is a member of the family unit of the applicant. If the applicant’s visa is cancelled the second named applicant’s visa is also cancelled by operation of law: s 140(1). The applicant submits the second named applicant came to Australia in his early teenage years and has resided in Australia since. He has now 27 years old, has established his life as an adult in Australia, and his ties to Australia are significant.

10. The applicant submits her husband requires her presence in Australia to assist him to deal with his diabetes and mental health conditions. The applicant provided medical information supporting her husbands need.

11. On balance the Tribunal finds that the consequences of the visa being cancelled weigh against the cancellation of the applicant’s Subclass 801 visa.

12. 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

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 801 (Spouse) visa.

14. The Tribunal has no jurisdiction with respect to the other applicant because consequential cancellations by operation of law do not involve a decision.

    P. Maishman
    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.