LI (Migration)

[2017] AATA 2061

LI (Migration) [2017] AATA 2061 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hao LI

CASE NUMBER:  1704407

DIBP REFERENCE(S):  BCC2016/1567930

MEMBER:Wan Shum

DATE:26 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 892 (State/Territory Sponsored Business Owner) visa.

Statement made on 26 October 2017 at 3:55pm

CATCHWORDS
Migration – Cancellation – Business Skills (Residence) (Class DF) – Subclass 892 (State/Territory Sponsored Business Owner) visa – Incorrect information supplied

LEGISLATION
Migration Act 1958, ss 5, 100, 107,109
Migration Regulations 1994, r 1.09, r 1.12, cl 820.221, cl 892.311

CASES
MIAC v Khadgi (2010) 190 FCR 248
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

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 892 (State/Territory Sponsored Business Owner) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant had been granted the visa as a member of the family unit of his mother. The delegate cancelled the visa on the basis that the applicant had failed to comply with s.101, to provide correct information in the visa application lodged by his mother in respect of the Subclass 892 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.

3. The applicant was represented in relation to the review by a registered migration agent. The Tribunal requested the Department file in relation to the matter from the Department on numerous occasions. When the Department file was provided, it contained limited documents including a copy of the notice of intention to cancel and the response, but did not include the Subclass 892 visa application or the Subclass 820 visa application, which had to be separately requested.

4. The applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The representative also attended. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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.

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

8. In the present case, 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?

9. 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:

   ·     on Form 47A submitted with the visa application for the Subclass 892 visa granted to the review applicant as a dependant of his mother, the response to ‘Dependant’s current relationship status’ under Question 16, was ‘never married or in a de facto relationship’.

10. However, having regard to a spouse visa application which was subsequently lodged on 21 April 2015, in which the review applicant and Ms Weiling Zhang claimed to have been in a de facto relationship since 6 October 2011, the delegate considered that incorrect information had been provided for the Subclass 892 application.

11. In response to the NOICC, the representative submitted that while the response given on Form 47A may conceivably have been incorrect when the application was made, that it was not possible to state as a fact that the applicant was in a de facto relationship at that time. It was submitted that the information given with the spouse application and on Form 47A did not conclusively establish that the information given in the Subclass 892 application was incorrect. Reference was made to the relevant migration legislation and definition of de facto relationship and general family law jurisprudence. It was submitted that the applicant and Ms Zhang may not have met the definition under the migration law by reference to r.1.09(3) as they had not pooled their financial resources at that time. In regards to general family law, by reference to the definition under the Family Law Act and various cases, it was submitted that whether a couple are in a de facto relationship and when this occurs is highly subjective.

12. It was further submitted that the review applicant only became aware that he and Ms Zhang were in a de facto relationship when making the spouse application, as prior to that he did not perceive his relationship to be of that nature. Reference was made to the parties being from China where such relationships are not afforded any legal status and are not recognised. It was also submitted that when making the Subclass 892 visa, the definition of de facto relationship under the migration law was not made known to the applicant nor was it disclosed on Form 47A.

13. At the hearing, the applicant told the Tribunal that he considered himself to be in a boyfriend/girlfriend relationship with Ms Zhang at the time the Subclass 892 visa was lodged. He said that, while they were living together and had been doing so since arriving in Australia together on 6 October 2011, they were both financially supported by their own parents at that time. The applicant confirmed that they were living with his mother at the time of that application at an address in Epping. He considered that they did not have a commitment to each other as de facto partners until late 2015, after they had both finished their tertiary studies and looked for jobs. He added that it was not until he was preparing to make the Subclass 820 visa in April 2015, that he became aware of the meaning of a de facto relationship. The Tribunal put to him that it seemed he was claiming that, less than one year after he had declared that he was never married or been in a de facto relationship, he and Ms Zhang were then claiming to have been de facto partners since October 2011. The applicant said when he was preparing for the spouse application he found out that living together counts as a de facto relationship. He was still not sure whether their circumstances met the requirements, but thought that Immigration could decide. The applicant said that they do not understand the concept of de facto partners, in their understanding a couple is either boyfriend and girlfriend or married. He added that on the cover letter for the spouse application, they had indicated that they were to be married in May 2015. The Tribunal queried why they had made the application before they married, noting that it was only a couple of weeks between the application being lodged and the marriage date. The applicant said that it seemed they met the de facto relationship requirements according to the Immigration website, so they went ahead with the application. He confirmed that they had lodged the application themselves, whereas they had used the services of an agent for the Subclass 892 visa, although he said this was limited as they were given some forms and filled the forms out themselves.

14. The Tribunal queried whether it would be correct to say that the applicant had thus become aware that he and Ms Zhang were in a de facto relationship at the time the Subclass 892 visa was made. The applicant responded saying that in August 2014 they were both still students and that there were too many uncertainties at that point, they did not think about marriage at that time. So he just filled out the Subclass 892 visa forms accordingly, with the view that they were boyfriend and girlfriend at that time. By the end of that year, they had graduated and had gotten jobs. They were more independent at that time and he thought that maybe they could be together in the future. As to when this occurred, the applicant said he was not sure as the relationship developed naturally. Maybe at the end of 2014 or early 2015.

15. The Tribunal put to the applicant that if he had become aware of the de facto partner definition in April 2015 as claimed, than an obligation arose to advise Immigration of previous incorrect answers given. The applicant said that when he filled out the Subclass 820 forms, he did it on the basis of his real situation. He did not think of the previous response given on the earlier visa application forms.

16. The Tribunal has considered the submissions and evidence of the applicant. Ms Zhang was granted a Subclass 820 visa on the basis that the applicant and Ms Zhang claimed to have been in a de facto relationship since October 2011. This claim was assessed at the time the spouse visa application was lodged, around 6 months after the Subclass 892 visa application. While the Tribunal has not itself assessed the relationship claims made in April 2016, their relationship claims were assessed by an Immigration officer and found to have met the relevant definitions for a de facto partner under the migration law. While the Tribunal accepts that the concept of de facto relationships may be different between China and Australia, it notes that the applicant had been in Australia since October 2011. It is also true that the migration definition of a de facto relationship is different in certain respects to the definition under general law. However, even if it could be said that the applicant did not know that he was in a de facto relationship at the time of the Subclass 892 visa, the operation of s.100 is such that “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 it was incorrect”.

17. Given this, based on the claims made in relation to the spouse visa application in April 2015 that he was in a de facto relationship that started in October 2011, the Tribunal considers that there was non-compliance in the way described in the notice. It considers that at the time the Form 47A for the Subclass 892 visa application was completed and lodged, the applicant was in a de facto relationship as defined in s.5 and r.1.09A under the migration law.

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

    Should the visa be cancelled?

19. 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).

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

    ·     the correct information

    ·     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.

21. 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.

22. During the hearing, the applicant was asked why he thought the visa should not be cancelled. The applicant said that it was a difficult time and he was not able to work currently because of his visa being cancelled. He is living with his wife, mother and daughter who was then 11.5 months old. His wife is working full time (at the same furniture wholesaler he was previously employed at), but they are relying upon support from their families.

23. The applicant said that he did not deliberately give any false information when filling out the form (for the Subclass 892 visa) and that the relationship status question on the form did not leave him with any deep impression. It was a misunderstanding as he thought they were just boyfriend and girlfriend at the time. The Tribunal put to him that arguably the Subclass 820 visa should not have been granted to Ms Zhang if they were not in a de facto relationship of at least 12 months standing.

24. In terms of the consequences for him of his visa remaining cancelled, the applicant said he thought they were serious and that it would impact on their family. His wife’s visa would also be cancelled, and both he and his wide would have to go back to China but their daughter is an Australian citizen. She will have to stay here because as far as he knows, if she goes to China she will face a lot of problems. He said he did not think anyone in Australia could replace their care for their daughter. If she returned to China with them, she will miss out on 9 year compulsory education because she will be excluded as a foreigner. When asked for further information about this he added that he did not have a deep understanding whether China accepts foreign citizen children.

25. The Tribunal has considered all of the matters raised by the applicant at the hearing and the submissions, and has given significant weight to the fact that the applicant would have met the requirement of being a member of a family unit even if he had declared he was in a de facto relationship at the time of the Subclass 892 visa application on the basis of the operation of  r.1.12(5). This matter was raised for the first time on review, and not in the response to the NOICC but the Tribunal considers is highly relevant to this matter. During the hearing, the Tribunal queried the operation of r.1.12(5) given the wording of r.1.12(1), but accepts the written submissions made by the representative that the subregulation is not conditioned by or subject to any of the circumstances listed in r.1.12(1). Thus, as the applicant had been granted a Subclass 163 visa as a member of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 892 visa and had been included in the application for that visa, r.1.12(5) provides that the person is a member of the family unit of an applicant for a Class DF visa. This is regardless of whether that person would meet the definition under r.1.12(1) at the time of the permanent visa application. The effect of subregulation (5) is to preserve the applicant’s status as a member of the family unit if the person is included in the permanent visa application. The applicant was included in his mother’s application for the permanent visa, and would thus have met cl.892.311 and 892.321 regardless of whether he had declared that he was in a de facto relationship since October 2011 as he later claimed.

26. Given this, the Tribunal does not consider it appropriate that the Subclass 892 visa be cancelled for failing to declare that he was in a de facto relationship at that time. While the applicant’s evidence was that he thought they were only boyfriend and girlfriend when the Subclass 892 visa was made in August 2014, the information given on the form is clearly contrary to the later claim to have been in a de facto relationship since October 2011. Nonetheless, it could not have made any difference to whether the visa was granted or not. Having regard also that the visa cancellation would likely have an impact on his Australian citizen child, on the information before it, the Tribunal considers that the correct and preferable decision is that the visa not be cancelled.

27. The Tribunal had raised concerns at the hearing as to whether the applicant’s wife would have been granted the partner visa based on a claimed de facto relationship when the applicant had given evidence that he thought they were boyfriend and girlfriend until late 2014 or early 2015. This is clearly contrary to the claim made on the partner visa application that they had been in a de facto relationship since October 2011. The applicant’s representative made further submissions after the hearing stating the view that their marriage would have meant that Ms Zhang met the time of application criterion set out in cl.820.211, and relied upon Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 as authority. The Tribunal does not accept these submissions, noting that there is a corresponding criterion under the heading ‘Criteria to be satisfied at the time of decision’ cl.820.221 which requires that the person continue to be a spouse or de facto partner unless circumstances not presently relevant to this case apply. The Tribunal considers that the corresponding time of decision criterion indicates that there is a connection with the heading ‘criteria to be satisfied at time of application’. The Tribunal does note that the parties married shortly after the visa application was lodged, and that they would likely have been found to meet the definition of spouses if they had lodged the application after their marriage. While this may be relevant to the issue of whether the partner visa was properly granted, the Tribunal accepts that it is not directly relevant to whether the Subclass 892 visa should have been granted based on the information given with that application.

28. 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 as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 892 (State/Territory Sponsored Business Owner) visa.

    Wan Shum
    Member