Li (Migration) - [2023] AATA 1167

Li (Migration) [2023] AATA 1167 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Xue Li
REPRESENTATIVE:  Mr Romano Piva
CASE NUMBER:  2112715
HOME AFFAIRS REFERENCE(S):          BCC2021/892822
MEMBER:R. Skaros
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 04 May 2023 at 11:51am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in a previous visa application – bogus documents – genuine and ongoing de facto relationship – altered bank and utility accounts – allegations against a migration agent – frequent residential movements – impact on the applicant’s businesses – best interest of the Australian citizen daughter – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 56, 97-105, 107-109, 140, 359
Migration Regulations 1994, r 2.41
CASES
Gill v MIBP [2016] FCAFC 142
Maharjan v MIBP [2017] FCAFC 213
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
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 delegate cancelled the applicant’s visa on the basis that there was non-compliance with s 103 of the Act in relation to a previously held Skilled Independent (Subclass 189) visa. The applicant was included in the Subclass 189 visa as a member of the family unit (de facto partner) of the primary visa applicant, Mr Jiaming Guo.
The applicant provided a copy of the delegate’s decision record to the Tribunal with the application for review. 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 15 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Mr Kevin Yin. The 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 applicant’s representative attended the hearing. The applicant was also assisted by Mr Andrew Munro of counsel.
The Tribunal has been provided with a copy of the Department’s file, which includes a non-disclosure certificate issued under s 375A of the Act. The certificate provides that disclosure of the specified document would be contrary to public interest because it would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law, which would or would be likely to prejudice the effectiveness of those methods. A copy of the non-disclosure certificate was provided to the applicant prior to the scheduled hearing.
The Tribunal has considered the nature of the document covered by the certificate. The document details…

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 Li (Migration)

Details

AGLC: Li (Migration) [2023] AATA 1167
Case: [2023] AATA 1167
Decision Date: 4 May 2023

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the applicant's Return (Residence) (Class BB) visa, Subclass 155 (Five Year Resident Return). The applicant had been granted the visa as a secondary applicant, a member of the family unit of Mr Guo. The dispute arose from allegations of providing bogus documents and incorrect information in a previous visa application, specifically in relation to a claimed de facto relationship. The Tribunal was required to determine whether the applicant had failed to comply with the Act in a manner that warranted visa cancellation and, if so, whether the cancellation decision should be affirmed.

The central legal issue was whether the applicant had contravened section 103 of the Migration Act 1958 (Cth) by providing bogus documents or incorrect information in connection with a previous visa application, thereby engaging section 109 of the Act, which permits visa cancellation. The Tribunal also had to consider whether the notice issued under section 107 of the Act, detailing the alleged non-compliance, was valid and whether the cancellation power had been validly exercised. Furthermore, the Tribunal was required to consider various factors against cancellation, including the applicant's contributions to the Australian community, her assistance to others, and crucially, the best interests of her Australian citizen daughter.

The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage the cancellation power. It was satisfied that the applicant had provided altered bank and utility accounts in support of a claimed de facto relationship, constituting non-compliance with section 103. While acknowledging the applicant's community contributions and her role in assisting new arrivals, the Tribunal weighed these against the seriousness of the non-compliance. The Tribunal gave significant weight to the best interests of the applicant's Australian citizen daughter, accepting that cancellation would likely result in the child having to leave Australia and potentially miss out on experiencing Australian culture. However, despite this consideration, the Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has carefully considered all the evidence before it and, 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 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. Section 107A of the Act provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa. 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. 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 s 103 of the Act. The Tribunal notes that the s 107 notice was set out in full in the delegate’s Decision Record and states the following. On 24 March 2016, Mr Guo lodged an application for a Skilled – Independent (Subclass 189) visa and included the applicant as his de facto partner. On 2 April 2016, Mr Guo was requested by the Department to provide additional information, which included evidence of his claimed de facto relationship with the applicant. On 23 May 2016, Mr Guo provided, in part, the following documents:·Commonwealth Bank Statement, for the period 1 October 2014 to 31 March 2015 for a bank account in the applicant’s name and account number ending #5441. The address on this document is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.·Sixteen (16) Vodafone mobile phone bills for a mobile phone account in the applicant’s name, and account number ending #2242, for the period from November 2014 to March 2016. The address on these documents is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.·Eleven (11) ANZ Bank Statements, for the period 30 June 2014 to 29 April 2016 for a bank account in the applicant’s name and account number ending #5381. The address on these documents is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.·Fourteen (14) Vodafone mobile phone bills for a mobile phone account in the applicant’s name, and account number ending #4301, for the period from December 2014 to April 2016. The address on these documents is recorded as Unit 49 195-199 WILLIAM ST, GRANVILLE, NSW 2142.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal accepts that the applicant has contributed to the community through her company, which she had earlier indicated operates a profitable business and employs three people who pay taxes. The Tribunal also accepts that the applicant is a helpful person who assists others, including new arrivals to Australia. The Tribunal gives some weight to this consideration against cancelling the visa. Other 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 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.Whether there would be consequential cancellations under s 140 The applicant was granted the visa on the basis of satisfying the secondary criteria as a member of the family unit of Mr Guo. The cancellation of the applicant’s visa, as a secondary applicant, would not by operation of law (under s 140 of the Act) result in the cancellation of the visa of any other person. The Tribunal accordingly gives neutral weight to this consideration. 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 parents were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28] If the applicant’s visa is cancelled, she may not be able to remain in Australia. She would also not be able to sponsor her spouse, Mr Wang, for a partner visa. The applicant and Mr Wang have a child together who is an Australian citizen. If the applicant’s visa is cancelled and she has to return to China, it is likely that her daughter, who is an Australian citizen, will have to return to China with her. When this was discussed with the applicant at the hearing, she said she wants her daughter to remain in Australia and study the Australian culture. The Tribunal accepts that the child’s interests would be affected by the cancellation in that she may not be able to remain in Australia and learn the Australian culture. The Tribunal accepts, based on the applicant’s evidence, that it would be in the best interest of the child that the visa is not cancelled and gives weight to this consideration against cancelling the visa. Whether the cancellation would lead to the person’s removal in breach of Australia's non-refoulement or family unity obligations There is no evidence before the Tribunal, and the applicant has not claimed, that Australia’s non-refoulment obligations would be breached if the applicant’s visa is cancelled.