Li (Migration) - [2021] AATA 2695

Li (Migration) [2021] AATA 2695 (1 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Wenjing Li
CASE NUMBER:  2104436
HOME AFFAIRS REFERENCE(S):          BCC2021/427122
MEMBER:Kira Raif
DATE:1 July 2021
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 01 July 2021 at 10:04am
CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – genuine and continuing relationship to the exclusion of all others and change of circumstances – applicant pregnant to another man before visa granted – one-night stand or new relationship – initial decision to continue sponsored relationship – sudden end of that relationship and claimed start of new relationship, and new partner’s visa application, soon after applicant’s visa granted – discretion to cancel visa – business plans and contribution to community – physical and mental health – best interests of child – father and extended family in home country – non-refoulement – church membership and attendance – country information – low risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41
CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
WKMZ v MICMSMA [2021] FCAFC 55
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 (the Act).
The applicant is a national of China, born in May 1976. She was granted the Partner (Migrant) visa in February 2016 and a Resident Return visa (RRV) in January 2021. In February 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s. 104 of the Act. The applicant provided her response to the NOICC and the visa was cancelled on 30 March 2021. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 2 and 17 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former and present partners, Mr Du and Mr Gu. The Tribunal hearings were conducted with the assistance of interpreters in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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,…

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.

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Details

AGLC: Li (Migration) [2021] AATA 2695
Case: [2021] AATA 2695
Decision Date: 1 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to cancel their Subclass 155 (Five Year Resident Return) visa. The dispute centred on whether the applicant had complied with the conditions of the visa, specifically concerning the genuineness and continuity of their relationship, and whether the visa should be cancelled in light of new circumstances.

The Tribunal was required to determine whether the applicant had failed to meet the criteria for the visa, particularly in relation to a claimed change in their relationship status and the timing of these events relative to the visa grant. It also had to consider whether, in the exercise of its discretion, the visa cancellation was justified, taking into account various factors including the applicant's personal circumstances, business plans, community contributions, health, and the best interests of their child. The Tribunal also had to assess the risk of harm to the applicant if returned to their home country, considering available country information.

In its reasoning, the Tribunal found that the applicant had not complied with the requirements as described in the notice given under s.107 of the Migration Act 1958 (Cth). The Tribunal concluded that, after considering all relevant circumstances, including the applicant's pregnancy to another man before the visa was granted, the claimed sudden end of one relationship and commencement of another shortly after the visa grant, and the new partner's subsequent visa application, the visa should be cancelled. 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

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Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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