Liu (Migration)

Liu (Migration) [2021] AATA 1031 (12 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dongyangyang Liu
CASE NUMBER:  2008813
HOME AFFAIRS REFERENCE(S):          BCC2018/2096571
MEMBER:Andrew McLean Williams
DATE:12 March 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 888 - Business Innovation and Investment (Permanent) visa.

Statement made on 12 March 2021 at 11:43am
CATCHWORDS
MIGRATION – cancellation – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – dependent child over 18 secondary applicant to father’s visa – incorrect information in father’s visa application, which stated applicant had never been in de facto relationship – in relationship for approximately three and a half years at the time, with later marriage and application for partner visa – discretion to cancel visa – application prepared by agent and staff using information in previous application and from parents, and not checked by applicant – parents unaware of Australian concept of de facto relationship – applicant financially dependent on parents at the time even though in relationship – now working and buying house – child an Australian citizen – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review by Mr Dongyangyang Liu (‘the applicant’) of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 888 - Business Innovation and Investment (Permanent) visa, under s.109(1) of the Migration Act 1958 (‘the Act’).
The delegate cancelled the applicant’s visa on the basis that the applicant’s visa application lodged on 31 October 2016 had contained incorrect information, contrary to the requirements of section 101(b) of the Act. Specifically, information was provided as part of the visa application that had nominated the applicant as being a dependent child aged over 18 years, and further information was provided that suggested him to be a person whom had never been in a de-facto relationship.
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 December 2020 to give evidence and make submissions.
The Tribunal also received oral and statutory declaration evidence from the applicant’s parents, Mr Jianyun Liu and Mrs Dongping Liu. Although the applicant speaks very good English, his parents do not. In light of that, the Tribunal hearing was in part conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent, Ms Lillian Lin (MARN 0636480). Ms Lin attended the Tribunal hearing and arranged for the lodgement of various written submissions and supporting evidence before the Tribunal, prior to the date of the hearing. Given the factual circumstances that are described below, Ms Lin also prepared and submitted a statutory declaration of her own (dated 8 June 2020), outlining her firms’ involvement in this matter.
For the following reasons, the Tribunal has concluded that the discretion in s.109 of the Act should be exercised in favour of the applicant, such that the decision to cancel the applicant’s visa should now be set aside.
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 or on their in-bound passenger cards; not to provide bogus documents in support of their visa applications; and to notify the Department of any incorrect information of which they become aware, and of any relevant changes in circumstances since the date of providing the information.
The exercise of the cancellation power under s.109 of the Act is conditional upon 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 – here issued in the form of a Notice of intention to consider cancellation (‘NOICC’) 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, and, if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with section 101(b) of the Act, which requires that no incorrect answers be given or provided. Here, the s.107 notice alleged that the information provided by the applicant in support of the Subclass 888 visa application was incorrect in the following material respects:
·The visa application lodged on 31 October 2016 declared the applicant to be a dependent child aged 18 or over of the primary visa applicant, his father, Jianyun Liu;
·The visa application lodged on 31 October 2016 declared the applicant to have never been in a de-facto relationship;
·The visa application lodged on 31 October 2016 declared that the applicant did not have a partner or girlfriend as at the date of the application.
The application was received and accepted by the Department. Because of it, the applicant was then granted a Business Innovation and Investment (Permanent) (Subclass 888) visa, on 3 March 2017, as the dependent adult child of his father, as the primary applicant.
Subsequently, on 6 April 2017 Ms Liting Wang lodged an application for a combined Partner (Provisional) (Subclass 820) visa, sponsored by the applicant and signed by both Ms Wang and by the applicant. Amongst other things, the Partner visa application declared that:
·The applicant and Ms Wang had been recently married, on 22 March 2017;
·The applicant and Ms Wang had originally met in Adelaide, South Australia on 1 August 2007, before commencing as boyfriend and girlfriend on 3 January 2011;
·Ms Wang and the applicant had commenced to live together in an exclusive (de-facto) relationship on about 13 August 2013 and have not lived apart from one another at any time since that date.
In light of the new information on the Partner visa application - as indicated immediately above - a delegate of the Minister considered that the information previously provided by the applicant as part of his application for the Business Innovation and Investment (Permanent) visa lodged on 31 October 2016 was incorrect, at least insofar as it declared the applicant to have never been in a relationship, and to have been a dependent child as defined in regulation 1.03 and a member of his father’s family unit, as defined in regulation 1.12.
On 27 February 2020, the applicant made submissions to the department in response to the NOICC, given under s.107 of the Act. In those submissions, the applicant readily acknowledges that the particulars that had been identified by the Department in his original Subclass 888 visa application were incorrect, yet then went on to proffer an explanation for why that incorrect information had been included in the application.
The applicant now continues to acknowledge that the identified particulars in the original Subclass 888 visa application were incorrect.
Accordingly, the Tribunal finds that there was non-compliance with s.101(b) of the Act, by the applicant in the manner described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has determined that there was non-compliance in the manner 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). Needless to say that on this application for review the discretionary power in s.109 of the Act is now one for the Tribunal to exercise as if ‘standing in the shoes’ of the Minister.
In exercising this discretionary 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, these are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or for immigration clearing 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.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered as 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.
In his statutory declaration dated 27 February 2020, and as was subsequently confirmed in his oral evidence before the Tribunal, the applicant informed the Tribunal that his Subclass 888 visa application documentation was prepared on his behalf by his parent’s migration agent in Adelaide, and he had no involvement in the provision of any factual instructions to the agent. The migration agent had incorrectly checked the box on the application form detailing that the applicant was not in a relationship without confirming that with his personally, however the applicant also acknowledges that he had not subsequently checked the correctness of the information recorded on the form, prior to his signing it. As to the issue of claimed dependency on his father, the applicant states that, at least until he obtained his first full-time job working for China Southern Airlines on 10 April 2017, he was a university student, and was financially dependent on his parents in order to be able to meet the costs of food, accommodation, tuition, and any other costs of living, even notwithstanding the fact of his co-habitation with his then girlfriend (now wife) who was, in turn, financially dependent throughout her student days on her own parents, who reside in China.
By means of her statutory declaration, the applicant’s registered migration agent Ms Lillian Lin says that she was initially engaged by the applicant’s parents, Mr Jianyun Liu and Mrs Dongping Lin, to assist in their obtaining a family Subclass 888 visa and Ms Lin had assumed that the applicant would be automatically entitled to be a family member as part of that Subclass 888 visa application, by reason that the applicant was already the holder of a Subclass 188 visa, by reference to regulation 1.12(5).
Ms Lin acknowledges that errors were made by staff within her firm in terms of the correctness of some information contained in the Subclass 888 visa application form submitted on 31 October 2016, and that no instructions were ever obtained by her or her staff directly from the applicant. Instead, all relevant information pertaining to the applicant had been taken either from the information specified in the original Subclass 188 visa application - as had been prepared by the previous migration agent located in China - or on the basis of factual instructions provided about the applicant by the applicant’s parents.
In their statutory declaration, and as was subsequently confirmed by means of their oral evidence before the Tribunal, the applicant’s parents Mr Jianyun Lie and Mrs Dongpin Lin indicate that, originally, they were successful business owner’s in China who had sent their only child to Australia for education purposes, when he was aged about 15. The applicant had completed high school in Australia and then remained in Australia for his tertiary studies, as well, initially pursuing his ambition to become a commercial airline pilot, before having a change of focus and transferring into a degree course focussed on aviation industry management, instead.
Subsequently, in about 2013, Jianyun Liu and Donpin Lin decided to seek to migrate to Australia, as business migrants. At that stage still living in China and not speaking any English, nor having any familiarity with Australian visa requirements, Jianyun Lie and Dongpin Lin retained the services of a local migration agent in the prospects of their obtaining an Australian Subclass 188 visa. That Chinese agent informed them that the applicant, as their only child, would be classified as a dependent of Mr Lie - because the applicant was less than 25 years of age, still without employment, and was a single and un-married person. No further questions were asked by the Chinese agent of either Jianyun Lie or Dongpin Lin in relation to the living circumstances of their son, who was at that stage already living in Australia as a student, and who also happened to have a steady girlfriend.
Jianyun Lie and Dongpin Lin were each at that stage only attuned to the Chinese legal concept of marriage and were not sufficiently aware of the rather different concept of de-facto relationships under Australian law to be able to know of the need to proffer the additional information to their Chinese agent that their son had a girlfriend in Australia. Nor indeed were they to know at that stage that their son’s relationship was as serious and committed as it would ultimately prove to be. The Subclass 188 visa application was then prepared by the Chinese migration agent, on their behalf and in the process the applicant was included as a family member in that application.
In October 2013, Jianyun Liu and Donpin Lin were granted a Subclass 188 visa and moved to Adelaide and purchased a home. As part of that the applicant was also granted a Subclass 188 visa. In September 2014 Jianyun Liu and Donpin Lin purchased a local restaurant in Adelaide. In November 2014 they retained their current migration agent Ms Lillian Lin to assist them in taking the next step, and making application for a more permanent Subclass 888 visa.
As is indicated above, the applicant never personally met with or spoke with Ms Lin or any of her staff in relation to his application for the Subclass 888 visa. All relevant details for his inclusion as part of the Subclass 888 visa application were obtained by Ms Lin and/or by her staff either from the extant Subclass 188 visa, and/or by means of the applicant’s parents. At no stage was any thought given by anybody as to the precise circumstances of the applicant’s domiciliary arrangements with his then girlfriend, Ms Wang.
The Tribunal concludes from the available evidence that Ms Lin was not aware at that stage of Ms Wang qualifying as a de-facto partner, and that the applicant’s parents were not themselves even aware that this was a relevant matter.
In March 2017, and very shortly after the applicant had graduated from university, he and Ms Wang were married. At around that time Ms Lillian Lin was once again retained, this time by the applicant and Ms Wang directly in order to assist them in now obtaining a Subclass 820 (Partner) visa for Ms Wang as the wife of the applicant. Various factual instructions referable to that application were then taken directly from the applicant and Ms Wang.
As these reasons now record, the new partner information obtained by Ms Lin and/or by members of her staff for the making of the Subclass 820 visa application was at variance to the information previously provided to the department about the applicant as part of the Subclass 888 visa application. As is revealed in Ms Lin’s submission to the Tribunal dated 8 June 2020, neither she nor the applicant were even aware of the incorrectness of that information - as had been lodged in 2016 - until after they were advised of that by the Department in early 2020, almost three years after the date of lodgement of the Subclass 820 visa application, in April 2017.
Since marrying his now wife Ms Liting Wang , the applicant has gone on and:
·obtained initial full-time employment in Adelaide with China Southern Airlines (April 2017);
- (together with his wife) purchased a home in Adelaide, subject to a $480,000 mortgage;
- (together with his wife) had a daughter ‘D’, born on 29 April 2018.
·subsequently relocated to Brisbane, so as to take up better remunerated employment, this time with Singapore Airlines, (August 2019);
·leased a house in Brisbane.
As to the circumstances set out in r.2.41 of the Regulations, at least so far as these are relevant in the circumstances of this case, the Tribunal observes as follows:
the correct information:
The correct information is that as is now recorded previously in these reasons. At the time of the making of the Subclass 888 visa application, the applicant was in a de-facto relationship with his now wife;
The content of the genuine document (if any):
This circumstance is not presently relevant.
whether the decision to grant a visa or for immigration clearing the visa holder was based, wholly or partly, on incorrect information or a bogus document:
There is no evidence before the Tribunal to suggest that the grant of the Subclass 888 visa was based either wholly or partly on the incorrect information regarding the applicant’s relationship status.
the circumstances in which the non-compliance occurred:
The circumstances in which incorrect information was provided to the department are as is now recorded, previously in these reasons. The Tribunal concludes that the incorrect information was not provided deliberately or wilfully and arose through inadvertence.
The present circumstances of the visa holder:
The applicant is now married, is working in full-time employment in Brisbane, and has a dependent wife and child. His parents continue to reside in Adelaide. All of his immediate family live in Australia. The applicant has completed his education in Australia and has commenced his career in this country. He has legal and financial obligations in Australia in the form of a property subject to a bank mortgage in Adelaide and a lease over domestic premises in Brisbane.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act:
There is no evidence before the Tribunal to suggest that the applicant has not subsequently complied with his 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:
No evidence has been placed before the Tribunal of any other instances of non-compliance by the applicant that are known to the Minister.
The time that has elapsed since the non-compliance:
Incorrect information was lodged with the Department as part of the applicant’s Subclass 888 visa application in October 2016. The applicant was not even aware of the fact of the incorrect information until he was advised of this by the Department in early 2020.
Any breaches of the law since the non-compliance and the seriousness of those breaches:
There is no evidence before the Tribunal to suggest that the applicant has engaged in any other breaches of Australian law.
Any contribution made by the holder to the community:
The applicant is a young family man and there is evidence before the Tribunal of his voluntary participation in community groups.

In the event that the applicant’s visa were to be cancelled, the applicant faces the prospect of being required to leave Australia, or face detention and forcible deportation. There is the further consequential prospect that his wife Ms Wang’s Bridging Visa A will then be cancelled, and her then being required to withdraw her Subclass 820 visa application and leave Australia to avoid visa refusal and the imposition of the consequential bar arising under s.48 of the Act. This consequence would arise in circumstances that are not the fault of Ms Wang. Ms Wang is also a joint mortgagee and homeowner with the applicant and the couple face the prospect if required to leave Australia of a forced sale of their property and a significant financial loss. The applicant and his wife now also have a two year old daughter ‘D’, who is herself an Australian citizen. The best interests of D now militate very strongly against visa cancellation for her father, the applicant.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 888 - Business Innovation and Investment (Permanent) visa.
Andrew McLean Williams
Member

ATTACHMENT – Migration Act 1958 (extracts)
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.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 1031

12 March 2021

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