Li (Migration)

[2017] AATA 2470

Li (Migration) [2017] AATA 2470 (4 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Songheng Li

CASE NUMBER:  1620789

DIBP REFERENCE(S):  BCC2016/1599558

MEMBER:Wendy Banfield

DATE:4 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 04 July 2017 at 5:33pm

CATCHWORDS

Migration – Cancellation - Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Incorrect information in application – Failure to disclosure previous name – Failure to disclose previous debts to the Commonwealth – Adverse migration history - Interests of child – Lack of evidence of regular and ongoing relationship with child

LEGISLATION

Migration Act 1958, s 101, 107, 109

Migration Regulations 1994, r 2.41, Schedule 2, cl 801.223, Schedule 4, PIC 4004

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 801 (Spouse) 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 disclose he had been known by another name and that he had an outstanding debt to the Commonwealth. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of China currently aged 44. According to Departmental records, he first came to Australia on 30 January 2004 under the name Bo Li. The applicant with that name had been an unlawful citizen in Australia until he was detained on 18 June 2007 and removed from Australia. He incurred a debt to the Commonwealth for fees to the Refugee Review Tribunal (as it then was) and for litigation fees.

4. When the applicant applied for his visa under his current name, he did not disclose that he had been known by another name and had an outstanding debt to the Commonwealth. For this reason, his Subclass 801 Partner Visa was granted on 6 March 2015. The Department learnt subsequently based on photograph facial recognition that the applicant now known as Songheng Li and Bo Li were the same person.

5. The applicant married in Australia and he and his sponsor, Wei Ling Su had a son who is now four years old. The applicant claimed he and his wife were still in a relationship and were living together; however, they were in a “cold war” with each other. For this reason, Ms Su did not attend the hearing with him.

6. The applicant appeared before the Tribunal on 17 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   Evidence of the visa applicant

8. The Tribunal asked the applicant to comment on the Department’s findings that he had not disclosed he had been known by another name which would have shown he had been in Australia unlawfully in the past. The applicant said he considered it a scar so he did not want to mention it. The applicant went on to say he was seeking a review of the visa cancellation because of his son. He claimed that apart from an absence of several months, he sees his son all the time, every day.

9. The applicant said his son lives in Carlingford with him and his wife, although the couple do not share the same room due to arguments. He said there was a “cold war” between them which had been going on for several months. The applicant claimed he had never moved out and lived separately from his wife. Regarding his involvement with his son, the applicant said when the child was younger; he picked him up from child care.

10. The Tribunal referred to photos submitted in evidence. The applicant said they were very recent and were taken a few months previously. The applicant was vague as to the nature of his relationship with his wife, claiming he believed it was still a marriage like relationship.

11. The Tribunal referred to the Department’s decision record in which it was claimed the applicant had left his wife and was not caring for his son. It was stated the applicant had left his wife and son twelve months before the decision was made. The information the Department had was that the applicant only visited his son a few times in that period. The applicant claimed it was incorrect, but then said his wife drove him out and smashed his car. He said he is a short fused person and it was good that they calmed down and separated for a while. The Tribunal pointed out the applicant had said earlier in his evidence, he and his wife had not separated. The applicant then claimed that after his wife kicked him out, he was away for a few months but he always returned.

12. The Tribunal asked why the applicant’s wife had not attended to support him. He said she had intended to but they were still in a “cold war”. The applicant claimed they would like to move forward for the sake of their son. Regarding financial support for his son, the applicant said previously he had provided cash and now that he is growing up, he wants to teach him about saving. He repeated that he had given his wife cash in the past for child care and toys and his wife then used her own credit card to pay for things.

13. The applicant said the house he lives in with his wife and son is owned by his wife and he pays a small amount towards household expenses, but not in relation to mortgage payments. According to the applicant, his wife hopes he will be able to stay in Australia. He repeated he and his wife had been arguing lately and while she wanted to help him with his application, he told her he could handle it. The applicant asked that he be given an opportunity for the sake of his son. He said the Department was incorrect in concluding he and his wife had separated and he did not see his son.

    Representative’s submission – Sylvia Li

14. Ms Li said she wanted to emphasis what the applicant had said about supporting his son who is at a young age, particularly moral, emotional and financial support. She said bank statements submitted in evidence showed regular deposits to support the son. It was claimed there is no evidence he has abandoned his son except from an anonymous source. She said the applicant went to work on the Gold Coast for a few months but that did not constitute abandoning his son.

15. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. 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.

18. 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?

19. 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 in the following respects: When the applicant applied for his partner visa on 24 October 2012 he answered “no” to a question asking whether he has ever been known by any other names. He also answered “no” to a question asking if he ever had any outstanding debts to the Australian Government. In fact, the Department had information the applicant had previously been known as Bo Li and had been an unlawful non-citizen in Australia. He had unpaid debts to the Commonwealth incurred in 2007 before his removal from Australia.

20. During the Tribunal hearing, the applicant did not deny he had provided incorrect answers in his application and did not dispute the Department’s findings that Songheng Li and Bo Li, (b.16/04/1973) were the same person. He claimed to have considered the matter a scar and therefore, he did not want to mention it.

21. 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?

22. 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).

23. 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.

24. Whilst 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’. This policy requires delegates to also have regard to matters such as whether the visa would have been granted if the correct information had been given, whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act, and whether the visa cancellation may result in Australia breaching its international obligations.

    The correct information

25. In this case, the correct information that should have been disclosed was that the applicant had previously been known by the name Bo Li, and that he had an unpaid debt to the Commonwealth. By providing incorrect answers in his application form, the applicant avoided the Department being alerted to the fact that he had been an unlawful non-citizen in the past, and had an outstanding debt to the Commonwealth. This would have affected the assessment of his application and decision whether to grant him a visa. This circumstance weighs against the visa applicant.

    The content of the genuine document (if any)

26. This consideration is not relevant to the current case.

    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

27. The applicant falsely claimed in his application for a visa that he did not have outstanding debts to the Commonwealth. His visa was granted because the Department assessed him under another name and found he met the criteria for the visa. The Department was not aware of his identify at the time of the visa grant and the fact he did not meet cl.801.223 of the Migration Regulations, which required that he meet public interest criteria 4004. This criteria requires the applicant not to have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment. The Tribunal finds the decision to grant the visa to the visa holder was based partly on incorrect information.

    The circumstances in which the non-compliance occurred

28. In his response to the Department, the applicant claimed he and his sponsor had completed the application together, she had not been aware he had another name or that he had debts to the Commonwealth and she answered the relevant questions without referring to him. At the Tribunal hearing, the applicant claimed he considered the matter a scar and had not wanted to mention it. He did not provide any further information about the circumstances in which the non-compliance occurred and was reticent in responding to questions about it. The Tribunal finds the applicant has provided conflicting accounts of the circumstances in which the non-compliance occurred and neither reason can be given any weight in his favour.

29. The Tribunal agrees with the Department that it is most likely the applicant deliberately withheld the information as he knew it would adversely affect the decision whether to grant his partner visa.

    The present circumstances of the visa holder

30. At the Tribunal hearing the applicant stated he was living with his wife and son in Carlingford New South Wales, however, he and his wife were occupying separate rooms and had been in a “cold war” due to arguments. The Tribunal understands this to mean they are not talking to each other, although the applicant claimed he considers they have not separated and are still in a married relationship.

31. The applicant submitted evidence to the Tribunal in this regard including a statutory declaration by the sponsor, Ms Wei Ling Su dated 27 February 2017, photos of the applicant with his son, Aaron Li and Westpac bank statements showing funds transferred in January and February 2017 from the applicant to his son and labelled “child support”. There are four transfers of between $100 and $300. The statutory declaration by Ms Su states that since December 2016, the applicant has returned to live with her and their son in Carlingford. It claims the applicant helps care for his son, spends time with him undertaking various weekend activities and has a close relationship with him. The statement refers to the importance of a father in a child’s life and asks that the applicant’s visa be reinstated. When asked during the hearing about his involvement with his son, he only stated that when the child was younger, his mother took him to childcare and the applicant picked him up. He did not refer to, or discuss any current involvement.

32. The Tribunal notes the findings outlined in the Department’s decision of 5 December 2016 in relation to credible evidence stating the applicant had moved out of his wife’s home 12 months previously and was not involved in his son’s life. The Tribunal has assessed this evidence and also finds it to be credible. The Tribunal finds that if the applicant has in fact moved back to live with his wife and son, it is likely he has only done so for visa purposes, and does not have a long term commitment to his son. The Tribunal makes this finding for a number of reasons. The applicant was not forthcoming about his circumstances at the Tribunal hearing, he provided contradictory information in claiming both that he had never been separated from his wife, and that he had been separated but always returned. The applicant’s wife did not attend the hearing in support of his application despite his claim they were still in a married relationship and she wanted him to be able to stay. He only provided a statutory declaration from her post-hearing and may have been produced due to pressure placed upon her. The bank statements submitted as evidence of the applicant’s financial support are recent, and do not demonstrate ongoing financial support. Apart from some photos of the applicant and his son together and the statutory declaration by Ms Su, there is no other evidence to indicate the applicant has a regular and ongoing relationship with his son.

33. On the basis of the evidence, the Tribunal does not place weight on the applicant’s current circumstances as a reason for not cancelling the visa. The Tribunal agrees with the Department that the applicant is likely estranged from his wife and does not provide his son with ongoing moral and emotional support.

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

34. The applicant did not deny his non-compliance with s.101 as advised in the s.107 Notice. However, the fact of the non-compliance did not come about due to the applicant’s own disclosure, and he made contradictory claims about why the non-compliance had occurred. These claims were that the sponsor had filled in the relevant questions on the form for him and she had not been aware of his alias or his debt, but he also claimed to the Tribunal that he considered the matter (his previous unlawful status in Australia) to be a scar and did not want to disclose it. The Tribunal places no weight on this in favour of the applicant.

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

35. The applicant did not comply with visa conditions and had been in Australia unlawfully in the past. He was removed from Australia on 28 June 2007. He has therefore demonstrated other instances of non-compliance and a disregard for Australia’s migration laws, in addition to the breaches that led to the cancellation of his visa. The Tribunal finds this weighs against the applicant.

    The time that has elapsed since the non-compliance

36. The non-compliance with s.101 that is the subject of this review occurred on 24 October 2012 when the applicant applied for a partner visa. Therefore more than 4 years has elapsed. The applicant had a son with Ms Su in this time and the Tribunal notes it was not until 2016 that the Department appears to have become aware of the applicant’s previous identity and non-compliance through facial comparison of photographs. The Tribunal takes into account the birth of the applicant’s child in the time since non-compliance.

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

37. The Tribunal is not aware of any breaches of the law since the non-compliance that led to the cancellation of the applicant’s visa.

    Any contribution made by the holder to the community

38. The applicant did not claim to have made any contribution to the Australia community either to the Department or to the Tribunal.

    Response to the s.107 notice

39. The Tribunal has considered the applicants responses to the s.107 notice, including his claims as to why he changed his name to Songheng Li. The claim was that due to bad luck, the applicant’s mother changed his name to one considered more favourable. The applicant further claimed that when his application form was completed, his sponsor who has a good command of English filled in the relevant questions for him and she was not aware of his previous identity or his outstanding debt to the commonwealth. When asked about this matter at the Tribunal hearing, the applicant was reluctant to provide any reasons for his non-compliance except to say he considered it a scar on his past and had not wanted to mention it. The Tribunal is not satisfied any of the applicant’s explanations are credible or truthful as he would have been aware of the seriousness of his failure to provide accurate and truthful information in his visa application. In this regard, the applicant’s credibility overall is adversely affected.

    The rights of the child

1. The Tribunal has assessed the rights of the child in this case including the type and strength of the relationship between the applicant and his son, Aaron Li, and also any impact that visa cancellation would have on him. The applicant denied he had been separated from his wife and child except for a period of time when he was working Queensland. However, at the time of the Department’s decision, information from a credible source stated that the applicant had in fact left the relationship 12 months previously. At the Tribunal hearing, the applicant claimed first that he had never separated from his wife, and then that she had kicked him out in the past but he had always returned. While the applicant provided a statement from Ms Su declaring the applicant had returned to live with her and their son and submitted photos of himself with Aaron, at the hearing he did not provide any information about his involvement with his son, except to say he had picked him up from child care in the past, given his wife money and bought toys. These events appeared to be in the past, and do not support claims of a father who claims to be fully involved in his son’s life on a daily basis. On the basis of this evidence, the Tribunal finds it unlikely Aaron Li will be deprived of his father’s moral and emotional guidance or financial support, since it is not accepted that he currently provides such support in any meaningful or ongoing way.

2. The Tribunal finds if the applicant has indeed reunited with his wife and child as he claims, Ms Su can decide whether to accompany him off-shore with Aaron if she chooses. Alternatively, the applicant can keep in touch with his son by other means and Ms Su can take him to visit his father.

3. The Tribunal notes the findings with the Department that the applicant’s daughter’s visa would not be cancelled as a consequence of section 140 and therefore no person’s visa in Australia would be cancelled if the applicant’s visa is cancelled. The Tribunal accepts this assessment and gives no weight in favour of the applicant due to this circumstance.

   Conclusion

4. The Tribunal has considered all the evidence in this case and concludes the correct information was not provided to the Department and if it had, it is likely the applicant’s visa would not have been granted. The Tribunal does not accept the applicant plays a significant role in the life of his son, Aaron Li, or that the child would be adversely impacted by the cancellation of the applicant’s visa such that it should not be cancelled.

5. 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 be cancelled.

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

   Wendy Banfield
   Member

   
   

   ATTACHMENT – Relevant Extracts from the Migration Act 1958:

   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.