Liang (Migration)

[2021] AATA 1247

Liang (Migration) [2021] AATA 1247 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Zhen Li Liang

CASE NUMBER:  2102027

HOME AFFAIRS REFERENCE(S):          BCC2020/2528864

MEMBER:Kira Raif

DATE:28 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 28 April 2021 at 9:17am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in previous visa application – did not include secondary applicant husband’s two children from another relationship – unaware of relationship or children – children’s later applications for visas – discretion to cancel visa – balance of family test – no relationship with husband’s children – long and settled residence in Australia, with own child and grandchildren here – physical health and treatment –hardship if cancellation affirmed – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 105, 107(1), 107A, 109(1)
Migration Regulations 1994 (Cth), rr 1.05, 1.15A, 2.41, Schedule 2, cl 143.213

CASE
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133

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 applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in May 1953. She applied for the Contributory Parent visa in March 2007 and was granted that visa in August 2007. In November 2017 the application was granted a Resident Return visa (RRV). On 22 October 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC). The applicant provided her response to the NOICC and her visa was cancelled in February 2021. The applicant is seeking review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse and son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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.

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa:

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

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied 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 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

11. The applicant made the application for the Contributory Parent visa in March 2007 as the primary applicant and included her spouse Mr Xin Min Zhou as the secondary applicant. The applicant completed the application form 47PA. In that application, 

    a.at Question 53 the applicant was required to give details of all his and her spouse’s children under the age of 18. The applicant stated ‘n/a’.

    b.at Question 57 the applicant was required to give details of all her family members, including children and step children. The applicant identified Liang Zhou, born in January 1982, residing in China. No other children were identified.

    c.at Question 58 the applicant was required to give details of the spouse’s family and children. The applicant referred to Liang Zhou.

12. In support of her visa application, the applicant provided

    a.a household register, with English translation, issued in the name of the applicant’s spouse on 10 April 2006 by the Qingdao PSB.

    b.a Chinese passport issued to the applicant’s spouse Mr Zhou in February 2005 with his Chinese Identity Card number (number provided).

13. On 29 August 2007 the applicant was granted the Contributory Parent (Subclass 143) visa while her partner was granted the visa as the secondary applicant.

14. The primary decision record indicates that the Department verified Mr Zhou’s Chinese Identity Card with the relevant authorities in China (Qingdao PSB) who advised that this ID number does not exist in their system. The delegate concluded that the Household register booklet and the passport purportedly issued to Mr Zhou were bogus documents because the local authorities did not have any record of his ID card number which was contained in these documents. The primary decision record indicates that the Department contacted the authorities again to verify these documents and the authorities confirmed the documents to be genuine.

15. On 9 January 2020 Mr Zhou sponsored Jingjing Zhou (born in September 2002) for a Child Subclass 802 visa. The application included the declaration from the child’s mother Hongmei Chen permitting the child’s migration. Also on 9 January 2020 Yiming Zhou (born in February 2005) made the application for a Child Subclass 101 visa, claiming Mr Xin Min Zhou to be the biological father and Hongmei as the mother. The delegate concluded that the applicant gave incorrect answers in her application by stating that neither she nor her partner had children under 18. The two Child visa applications show that Mr Zhou had two children with Hongmei Chen, born in 2002 and 2005 respectively.

16. In her response to the NOICC the applicant states that she has known her husband for 40 years and is certain about his identity. The applicant states that prior to 2019 she was unaware that he had two children and that is the reason the children were not declared in her Contributory Parent application. The applicant states that her husband told her about the children in late 2019 and because of their biological ties, she accepted it and is willing to sponsor them to migrate to Australia.

17. The Tribunal notes, however, that under s. 100 of the Act, an answer is incorrect even though the person who gave or provided the answer did not know it was incorrect. Thus, even if the applicant did not know that her spouse had two children from another relationship, the answers were incorrect and that would be in breach of s. 101 of the Act.

18. The Tribunal finds that the applicant’s partner had two children under the age of 18 at the time the application for the Contributory Parent visa was made. The Tribunal finds that the applicant’s answers to Question 53, 57 and 58 on the application form 47PA were incorrect. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. 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

21. The correct information is that the applicant’s spouse had two minor children from another relationship at the time the application was made. The applicant’s evidence is that she was unaware of these children.

    The content of the genuine document (if any)

22. This is not relevant in this 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

23. It is a requirement of cl. 143.213 that a person must meet a balance of family test (there is no evidence the applicant was, at the time of the application, a holder of a temporary Contributory Parent visa or a substituted Subclass 676 visa). The balance of family test, as defined in r. 1.05 relevantly required the applicant and her partner to have the same number or more children in Australia than overseas. The applicant stated in her application that there was one child and failed to mention two other children of her husband. The Tribunal finds that information about these children was relevant to the assessment of whether the applicant had passed the balance of family test.

24. Further, the applicant’s partner made the application on the basis of meeting the secondary criteria. Relevantly, he claimed to be a member of the family unit, and a spouse of the applicant. The definition of the spouse requires a mutually committed relationship to the exclusion of all others. In this case, the spouse had two children from another relationship. While that does not necessary indicate that his relationship with the applicant was not to the exclusion of all others, the existence of these children would have been relevant to that assessment.

25. The Tribunal finds that the decision to grant the visa was based on incorrect information.

    The circumstances in which the non-compliance occurred

26. The applicant submits in her response to the NOICC that she was unaware of the two children until late 2019. In oral evidence the applicant said that it was only when her visa was being cancelled that she learned about the two children. The applicant states that her husband told her about the children in late 2020 and she had a major break-down. The applicant then said that once the DNA test was done in 2019, she knew about the children and her husband tried to convince her to sponsor the children. She agreed to sponsor the children because of the longevity of her relationship with her husband.

27. The Tribunal accepts the applicant’s evidence that she was unaware of the existence of the two children until 2019 when the DNA test was done.

    The present circumstances of the visa holder

28. In her response to the NOICC the applicant states that she is a cancer patient and the notification that her visa may be cancelled had affected her greatly. The applicant refers to undergoing chemotherapy and states that her husband accompanies her to medical appointments. The applicant told the Tribunal in oral evidence that she had been diagnosed with cancer in 2014 and her son had no time to care for her due to family commitment and it was her husband who took care of her. The cancer recurred in 2017 and again, her son has three children, so he cannot give her the time and it is her husband who provides care to her. In oral evidence, the applicant explained the treatment she receives and the effect it has had on her health. The applicant described the support she receives from her husband, stating that their son is too busy to provide the care.

29. The applicant states that in Australia they have been provided with good healthcare which would not be available in China because they would have limited financial means. The applicant confirms that she and her husband own a house in Australia but states that their house is subject to a mortgage and they would have limited funds if the house was sold. The applicant states that they have no property in China and no medical insurance as they sold everything they had in order to come to Australia. The applicant states that the treatment she receives in Australia and the same medication would not be available in China. In her post-hearing submission the applicant outlined the cost of treatment and stated that she would not have access to health insurance and would be unable to meet such costs. The applicant states that due to her age, she is unlikely to work in China and her pension is minimal.

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

30. Nothing adverse is known about the applicant’s behaviour concerning her behaviour.

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

31. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

32. The application for the visa was made in March 2007 and 14 years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

33. There are no known breaches of the law.

    Any contribution made by the holder to the community

34. The applicant told the Tribunal she keeps in contact with her neighbours and shares information with neighbours and there are church members praying in her house.

35. 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. 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.

36. There are no persons who would be the subject to the consequential cancellation.

    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. (NOTE: 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 parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

37. The primary decision record indicates that the one of the children of applicant’s spouse is a minor and the other has turned 18. The applicant told the Tribunal that she does not care for these children and there is no suggestion that the applicant has had any contact with, or relationship with these children. The Tribunal is not satisfied the best interests of the minor child of the sponsor would be adversely affected by the cancellation. The applicant refers to the presence of her grandchildren in Australia but does not claim that the best interests of any other children would be adversely affected by the cancellation.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

38. The applicant’s son and grandchildren live in Australia and the cancellation of the visa, which may lead to the applicant’s departure from Australia, would result in her being separated from her family in Australia. The visa held by the applicant’s spouse is subject to a separate process. The Tribunal acknowledges that the cancellation may affect the principle of family unity.

39. There is no evidence, and the applicant does not suggest, that Australia’s non-refoulement obligations arise in this case. The Tribunal does not consider that they do.

    Whether there are mandatory legal consequences

40. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although she may be subject to an exclusion period in relation to some visas. The cancellation of a permanent visa would result in the applicant losing the benefits that she may have been entitled to as a permanent resident of Australia.   

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

41. The applicant spoke about her family in Australia and her desire to be with her son and grandchildren and to take care of them. The Tribunal accepts that the cancellation of the visa, which may lead to the applicant being required to leave Australia, may lead to the separation of the applicant from her family in Australia.

42. The applicant refers to the length of time she has lived in Australia and states that she treats Australia as her home. The Tribunal accepts that the applicant has been living in Australia for close to 15 years and that she is well settled in Australia. The Tribunal accepts that given her age and the length of her absence from China, the applicant may find it hard to re-settle in China. The Tribunal also accepts the applicant’s immediate family is in Australia. The applicant refers to her medical treatment and the availability of care in Australia and lack of care in China. The Tribunal accepts that considerable hardship would be caused to the applicant and her family by the cancellation of the visa.

43. In the written submission to the Tribunal of 14 April 2021 the applicant states that there are unique and exceptional circumstances in this case, stating that the definition of spouse in r. 1.15A and cl. 143.213 would have unintended consequences which would lead to an unfair and unreasonable result. The applicant states that neither she nor her partner believed they had other children until the DNA results were obtained. The applicant states that while her husband had an affair with the children’s mother, her relationship with her husband had always been genuine and exclusive and her husband had a separate life with the children’s mother. The applicant concedes that she would not have passed the balance of family test if the two daughters were included, but states that she was not aware of the existence of these children until late 2019.

44. The Tribunal finds the applicant’s submission unpersuasive. The legislation clearly defines the term ‘balance of family test’ by reference to the number of children, not by nature of a parent’s relationship with the child. Notably, the balance of family test also provides that if a child’s whereabouts are unknown, the child is taken to reside in a particular country. That is, the legislation makes it clear that even if there is a complete absence of any relationship between a parent and a child, that child must be considered for the purpose of the balance of family test and may disqualify the parent from meeting that requirement. Thus, even if the applicant had no relationship with the children and was unaware of the children, the two daughters are considered to be the children of her spouse and that fact is not in dispute. Therefore, the applicant would not have passed the balance of family test irrespective of her knowledge of the children’s existence. In the Tribunal’s view, that is the clear intention of the legislation. Thus, the Tribunal does not accept the applicant’s claim that there is an unintended consequence or exceptional circumstances in the present case.

1. The applicant submits that she did not comply with s. 105 of the Act because ‘for a lay person… it is a tall order to notify’. The Tribunal does not accept that submission. The requirements of the Act apply irrespective of one’s level of knowledge of the Australian laws, legal training, level of English proficiency or any other such factors. It is incorrect for the applicant to suggest that because she was a lay person (as presumably many visa applicants are), she should not have been expected to comply with s. 105 of the Act and inform the Department about her circumstances. She did have this obligation and had failed to comply with it.

2. The applicant states that there is no proper recourse she can turn to if the visas are cancelled as it is not an option for them to return to their home country. The applicant states that she migrated to Australia in 2007 and has integrated into the Australian community and they would be devastated if required to return to China. The applicant states that her family in China have their own commitments and cannot accept her applicants and she will not have a roof over her head and he would be condemned to a life of loneliness and misery. The applicant submits that the length of her residence in Australia should mean the discretion should be exercised in his favour.

3. The Tribunal accepts that the applicant and her partner had been living in Australia for a lengthy period and are settled in this country. The Tribunal accepts that they may have to ‘start from scratch’ if they were to return to China, re-establish accommodation and income and family and community connections. The Tribunal  accepts that considerable hardship would be caused to the applicant by the cancellation of the visa and that weighs heavily against the cancellation. The Tribunal places appropriate weight on these factors.

4. The applicant presented to the Tribunal a letter from her son, who states that his parents helped him raise his children and the help and support they provide to each other. There is reference to the applicant’s regret about the circumstances leading to the cancellation and the hardship that the cancellation of the visa would cause. The applicant’s son gave oral evidence to the Tribunal and spoke about his parents’ long term marriage, stating it would be ‘impractical’ for them to separate. He spoke about the support he receives from his parents and the length of their residence in Australia, stating that they are well settled int his country. The Tribunal accepts that evidence.

5. In her submission to the Tribunal of 23 April 2021 the applicant refers to her treatment and the significant cost of medication, which she claims is covered by Medicare in Australia but would be inaccessible to her in China.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had completed the application form in a way that incorrect answers were given and that there was non-compliance with s. 101 of the Act and thus there are grounds for cancelling the visa.

7. The Tribunal has formed the view that there are strong considerations that are against the cancellation of the visa. These include the length of time the applicant has lived in Australia, her settlement in this country, health and access to health care and other benefits, financial issues, the presence of close family in this country and other considerations.

8. The Tribunal places great weight on the fact that the decision to grant the visa was based on incorrect answers. It is significant, in the Tribunal’s view that if the correct information was known, the visa would not have been granted because the applicant would not have passed the balance of family test. Ordinarily, such factors would outweigh, in the Tribunal’s view, other considerations. However, in this case, the Tribunal also places weight on the fact that the applicant was genuinely unaware of the existence of the two children. The Tribunal has accepted her evidence about the circumstances in which those children were conceived and how the applicant came to know about them. Essentially, the Tribunal accepts that the applicant was completely unaware of her husband’s relationship with Ms Chen and the children from that relationship and that it was not until 2019 that she became aware of the existence of the two children. In these circumstances, the applicant was not actively engaged in the fraud, she provided incorrect answers unknowingly and without the intention of doing so.

9. Considering these circumstances, and the significant hardship that would be caused if the visa is cancelled, the Tribunal has formed the view that the factors that are against the cancellation outweigh those that favour the cancellation.

10. 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

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Kira Raif
    Senior Member