Luk (Migration)

[2022] AATA 2247

Luk (Migration) [2022] AATA 2247 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr King Man Luk

REPRESENTATIVE:  Miss Vivian Wei Wei Wang (MARN: 0853910)

CASE NUMBER:  2200544

HOME AFFAIRS REFERENCE(S):          BCC2021/1713442

MEMBER:Kira Raif

DATE:1 July 2022

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 2022 at 9:08am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information and bogus documents provided in visa application – de facto partner of primary applicant – bank statements, mobile phone bills and personal statement – departmental investigation – claim that documents altered by agent – limited evidence of relationship – timing and circumstances of start and end dates with respect to visa requirements – relationship ceased and relationship with previous partner recommenced – application for citizenship withdrawn – discretion to cancel visa – long residence – younger child an Australian citizen – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 4, criterion 4020

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 (Cth) (the Act).

2. The applicant is a national of China (HKSAR) born in December 1986. He was granted the Skilled visa in August 2016 and a Resident Return visa (RRV) in August 2021. In September 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with ss 101 and 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in January 2022. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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. 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?

7. 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 ss 101 and 103 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Skilled visa on 25 May 2016 as a secondary applicant and a member of the family unit of Ms Peijia Wu, who was the primary applicant. Ms Wu stated in her application that the applicant was her de facto partner and that their relationship began on 17 May 2015. The applicant’s personal details were included in Ms Wu’s application.

9. In support of the claimed relationship between the applicant and Ms Wu, there were a number of documents which included:

   a.three joint bank statements from the Commonwealth bank, in the joint names of the applicant and Ms Wu, addressed to an address in Campsie, for the period from December 2014 to March 2015,

   b.Virgin mobile phone bill issued to Ms Wu at the Campsie address, dated March 2016,

   c.two bank statements from Commonwealth Bank, sent to the applicant at the Campsie address, for the period from December 2014 to December 2015,

   d.a document entitled ‘love story’, in which the applicant stated that he commenced a relationship with Ms Wu in 2013 and the relationship became formal in 2015 and he moved into her apartment in February 2015. 

10. The applicant and Ms Wu were granted the Skilled visas in August 2016. The primary decision record indicates that following the visa grant, the Department had carried out an investigation of the above documents and determined that the residential addresses recorded on these documents did not match the residential addresses officially linked to the documents.

11. The delegate notes that in February 2018 the applicant made an application for the Australian citizenship and in that application he gave an address at Campsie and he stated that he lived there between May 2016 and August 2016. It also indicates that in June 2017 the applicant sponsored Ms Wai Sze Chung for a Partner visa and in that application he claimed to have been in a relationship with Ms Chung between 2013 and 2014, he stated that they separated but recommenced their relationship in 2016. In response to a natural justice letter from the delegate, it is stated that the applicant decided to withdraw his application for the Australian citizenship.

12. In his written response to NOICC the applicant confirmed that he and Ms Wu were in a genuine de facto relationship. He stated that they met in mid-2014 but he had just separated and was not looking for a relationship. Around May 2015 they fell in love and moved in together and they mostly lived at the Campsie address and sometimes at his place in Mascot. In May 2016 they made the application for the visa with the help of an agent. They often argued and he did not tell Ms Wu about his (present) partner. Ms Wu learned about his partner around October or November 2016 and they separated. The applicant states that his mother’s friend recommended an agent, they had no knowledge of the migration laws and trusted the agent with the application. They provided basic documents to the agent. The applicant states that his relationship with Ms Wu was ‘not stable’ and they did not have many letters or messages to prove they were a couple but friends and relatives were able to attest to the relationship. The agent told them it would not affect the application. After receiving the adverse information in 2019, he appointed another agent, obtained a copy of the file and discovered there was ‘made up information’ which he was not aware of and even his signature was forged. The applicant states that he only provided genuine documents and other documents had nothing to do with him. The applicant claims he is a victim of an “unconscionable agent”. The applicant provided evidence of having paid $20,000 to the agent. He claims he had no intention to deceive. In oral evidence to the Tribunal the applicant also stated that he was unaware of the documents being altered.

13. The applicant repeated the same claims in his oral evidence to the Tribunal. The applicant told the Tribunal that he met Ms Wu in 2014 and next had contact with her in 2015 when she came to his hair salon. He claims they started dating in 2015 and their de facto relationship started in May 2015. They did not have a joint lease because Ms Wu’s place was too small to keep his things but they were spending all the time together at the Campsie address and when they argued, he would move to his place at Mascot for a few days. The applicant states that their relationship ended around October 2016.

14. The Tribunal finds the applicant’s evidence unconvincing.

15. Firstly, there is limited independent, contemporaneous and verifiable evidence of the relationship that has been submitted with the application and to the Tribunal. The applicant claims to have been in a genuine de facto relationship with Ms Wu for approximately a year and a half. If that was the case, in the Tribunal’s view, there should be available ample evidence of such a relationship, including evidence of sharing of financial resources or joint purchases, evidence of a joint household (including genuine correspondence to the same address) and of sharing household expenses, photographic evidence of joint social activities, etc. Very limited documentary evidence has been provided by the applicant to the delegate in response to the NOICC and to the Tribunal to evidence his claimed relationship with Ms Wu. The Tribunal acknowledges the statements from the applicant’s mother and flatmate and some of his friends, that the applicant submitted to the Tribunal on 16 June 2022 and 21 June 2022 and also his explanation that due to the passage of time, much of the evidence is no longer available. However, the Tribunal is mindful that the applicant claims his relationship with Ms Wu lasted for about a year and a half and in the Tribunal’s view, if that  was the case, there would be a greater amount of evidence concerning various aspects of the relationship available. As for the passage of time, the Tribunal is of the view that some evidence could be made available by the applicant requesting it (for example phone records or financial records could be sought from the relevant providers). The Tribunal also acknowledges that the Skilled visa delegate accepted the existence of the relationship at the time the application was assessed but the Tribunal is mindful that the delegate was not aware that at least some of the presented documents were bogus documents. The applicant was put on notice that the existence of his relationship with Ms Wu was central to the decision to cancel his visa. In these circumstances, the Tribunal has formed the view that the limited evidence of the applicant’s relationship with Ms Wu that the applicant has been able to gather and present is not consistent with the existence of a genuine de facto relationship between them for the period claimed.

16. Secondly, the Tribunal is concerned about the timing of the claimed relationship. The applicant claims his relationship with Ms Wu began on 17 May 2015, a week before the deadline for the 12 months de facto relationship requirement (with the Skilled visa application being lodged on 25 May 2016). They claim the relationship ended around October 2016, about two months after the Skilled visa was granted. That is, the claimed relationship lasted for precisely as long as it took the applicant to obtain the visa and ended as soon as it was no longer needed for visa purposes.

17. The applicant told the Tribunal that his mother has been a permanent resident for many years and could have sponsored him for the remaining relative visa so he did not need to ‘use’ Ms Wu to get the visa but the Tribunal is mindful that once the applicant was in a relationship, either with Ms Chung or with Ms Wu, he may no longer have been eligible for that visa. Also, if the applicant had a minor child who was not in his care and control, that may have affected his eligibility for that visa. Whether or not the applicant could have obtained permanent residence in any other way, the Tribunal does not place great weight on his claim that his eligibility to gain permanent residence by other means is evidence that his relationship with Ms Wu was genuine and of the nature and duration described in the Skilled visa application.

18. Thirdly, the Tribunal notes the discrepancies about the applicant’s addresses, the timing and the circumstances of his relationship with Ms Wu, given in his citizenship application, the  Skilled visa application and his sponsorship of his present partner Ms Chung:

    a.The primary decision record indicates that in his citizenship application, the applicant claims to have lived at the Campsie address (that is, with Ms Wu) between 23 May and 30 August 2016, not between February 2015 and late 2016, as he claimed in his Skilled visa application. The applicant explained to the Tribunal he was careless when calculating the dates in his citizenship application as he did not think it was important but the Tribunal does not accept that evidence, given that in the citizenship application the applicant claimed to have lived with Ms Wu for only three months and not over a year and a half as was claimed in the Skilled visa application. Even if the applicant was careless or did not understand the significance, the Tribunal does not accept he could not have appreciated the distinction between three months and a year and a half.

    b.The applicant’s present evidence about the timing of his relationship with Ms Wu is also entirely inconsistent with the description the applicant gave in the ‘love story’ which was submitted with the Skilled application, as outlined in the primary decision record. The applicant claims he had not written, nor seen that statement previously but that is evidence that was submitted as part of his Skilled visa application and on which the delegate relied to assess the relationship.

    c.It is also noted that, according to the primary decision record, in his Partner visa sponsorship, the applicant stated that he left Ms Wu in October 2016 and not in August 2016 as he claimed in his citizenship application. The applicant’s explanation to the Tribunal is that he was careless about the dates and only gave a rough estimate to the agent. While the Tribunal does not consider that discrepancy in itself to be significant, in combination with the other concerns, the Tribunal places some weight on it.

    d.The applicant told the Tribunal that he had no contact with his current partner Ms Chung since he left Hong Kong in 2014 when he signed the child’s birth certificate. He claims she came to his workplace in late 2016 to his surprise and without his prior knowledge. He also told the Tribunal that at that time, Ms Wu visited his place of work only infrequently. The Tribunal considers it unlikely, if not implausible, that in these circumstances both Ms Chung and Ms Wu visited his place of work at precisely the same time, to meet each other, causing the relationship breakdown. The Tribunal is not convinced that the applicant gave a truthful explanation for the reasons his claimed relationship with Ms Wu broke down.

    The inconsistencies in the applicant’s stated addresses and the claimed period of his relationship with Ms Wu offer strong evidence that the applicant did not live with Ms Wu for the period claimed.

19. Fourthly, the applicant has a child with Ms Chung born in December 2014. The applicant told the Tribunal that he did not know about the child at first but he would have been aware of the child by the time he signed the birth certificate, which was issued in April 2015. The Tribunal considers it unlikely that the applicant was identified in the child’s birth certificate as the father of the child when he claims he was forming an exclusive relationship with Ms Wu, and then resumed his relationship with the mother of his child shortly after being granted the Skilled visa. Again, the timing of these events strongly suggests, in the Tribunal’s view, that the applicant did not have a commitment to his relationship with Ms Wu, nor treated that relationship as being to the exclusion of all others. At best, if there was a relationship between the applicant and Ms Wu, the Tribunal is of the view that the applicant entered that relationship with the aim of obtaining the visa and ended the relationship when that purpose was achieved. That is, the applicant’s relationship with Ms Wu, was not a genuine de facto relationship.

20. The Tribunal acknowledges the statements from the applicant’s mother and friends about his relationship with Ms Wu. It is not clear whether the applicant’s friends are fully aware of all the discrepancies set out in this decision and whether that may have affected their view of the applicant’s relationship with Ms Wu.

21. Having regard to the totality of the above concerns, the Tribunal has formed the view that the applicant did not have a de facto relationship with Ms Wu from May 2015 and at the time of the Skilled visa grant, as stated in the Skilled visa application. The Tribunal is not satisfied the applicant’s relationship with Ms Wu would have met the statutory criteria for de facto relationships set out in the Act and the Regulations. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided when he claimed to have been in a de facto relationship with Ms Wu from around May 2015. The Tribunal finds that there was non-compliance with s 101 of the Act.

22. The applicant told the Tribunal that he did not have a joint bank account with Ms Wu. The Tribunal finds, having regard to the applicant’s evidence, that the joint bank account records are bogus documents because they had been altered by a person without authority.

23. The applicant claims he was unaware of the bogus documents and that he only gave genuine documents to the agent, whom he trusted. The Tribunal is prepared to accept that the applicant did not personally alter the documents but his evidence to the Tribunal is that he had signed a blank form and did not check the information in the form and documents in the application. That is, if the applicant’s evidence is accepted, he had taken no steps to ensure the truthful nature of his application and had been reckless about the content of his application. The applicant also claims lack of knowledge of the law but the Tribunal does not accept that any particular knowledge of the law is required to enable the applicant to read his application and attachments, particularly as much of the information in question relates to his personal circumstances and not legal issues and the applicant would have been able to communicate with his agent, who could have assisted the applicant to check the content of his application. The Tribunal is of the view that the applicant had the opportunity, and the responsibility, of checking the forms and the application.

24. The Tribunal finds that the bank statements were bogus documents because they had been altered by a person without authority. The Tribunal finds that by submitting these documents, or causing the documents to be submitted, the applicant had not complied with s 103 of the Act.

25. For these reasons, the Tribunal finds that there was non-compliance with ss 101 and 103 by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

26. 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).

27. 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 reg 2.41 of the Regulations. They are:

    The correct information

1. The Tribunal has formed the view, for the reasons set out above, that the applicant did not have a de facto relationship with Ms Wu for the period claimed. The Tribunal has formed the view that they did not live together from February 2015 and in a formal de facto relationship from May 2015, as was claimed in the application.

   The content of the genuine document (if any)

2. The genuine documents did not show the applicant and Ms Wu having a joint bank account.

   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

3. The primary decision record indicates that the applicant made the application as a secondary applicant and met the secondary criteria for visa grant. There is no suggestion that he met the primary criteria for visa grant. That is, the applicant’s eligibility for the visa was based, entirely, on his relationship with the primary visa applicant Ms Wu and the applicant’s claim that they had a de facto relationship. If that relationship did not exist, or was not of the nature or of the duration described in the application, the applicant may not have been entitled to the visa. Thus, the decision to grant the visa was based on the applicant’s claimed relationship with Ms Wu and was therefore partly based on bogus documents and incorrect information (as the Tribunal has found that he did not have the de facto relationship with Ms Wu as claimed).

4. Further, it is not in dispute that the applicant provided bogus documents with the Skilled visa application in the form of joint bank statements. These documents were provided to support the applicant’s claimed de facto relationship with Ms Wu and were relevant to the assessment of whether the applicant met the secondary visa criteria. The provision of bogus documents was relevant to the applicant’s ability to meet PIC 4020 and if it was known to the decision-maker that the applicant had provided bogus documents, it may have affected his ability to meet PIC 4020.

5. The Tribunal finds that the decision to grant the visa was based, in part but to a significant degree, on the incorrect information and bogus documents.

   The circumstances in which the non-compliance occurred

6. The applicant claims, essentially, that he was not familiar with the immigration laws, that he approached a migration agent and gave only genuine documents to the agent and he was not aware of what was contained in the application. The applicant told the Tribunal that because the agent was referred by a family friend, he completely trusted the agent and did not read the content of the application and signed the blank form. Even if that evidence is accepted entirely, the Tribunal is of the view that the applicant had the responsibility to check the content of his application and, on his own evidence, he has not taken any steps to do so.

   The present circumstances of the visa holder

7. In his response to the NOICC the applicant refers to having a relationship with his Australian partner and two children from that relationship. The applicant notes that his younger child is an Australian citizen while his wife’s and eldest child’s visas may be cancelled if his visa is cancelled. The Tribunal accepts that evidence.

8. The applicant refers to the presence of his mother in Australia. In his evidence to the Tribunal the applicant refers to his mother’s poor health, stating that she would have nobody to care for her if he were to leave Australia. The applicant stated in his submission to the delegate that his mother presently lives in a different state and intends to live with him in the future and will need to rely on him but his evidence to the Tribunal is that his mother continues to live in Darwin as she has ongoing business interests there. That is, despite the claimed poor health and his mother’s claimed reliance on the applicant, no steps had been taken to make arrangements for them to live close to each other and for the applicant to be able to provide the assistance that he claims his mother needs. It appears that the applicant’s mother is able to cope, despite any claimed health issues, without his assistance. The Tribunal is not satisfied that in these circumstances, the cancellation of the applicant’s visa (even if it was to result in the applicant having to depart Australia) would adversely affect his mother’s health.

9. The applicant provided birth certificates for his two children and evidence of his daughter’s study, including school reports and awards. The Tribunal accepts that the applicant has two children living in Australia and that the youngest child is an Australian citizen. The applicant told the Tribunal that his wife has been granted a permanent partner visa. The Tribunal accepts that evidence and is mindful that this may enable Ms Chung to sponsor the applicant for a visa in the future. (There is nothing before the Tribunal to indicate that her visa is in the process of being cancelled or that there are any plans to cancel her visa, although that is a possibility.)

10. The applicant provided to the delegate evidence of his past study and his tax returns. The Tribunal accepts that the applicant had completed study in Australia, that he has been employed and contributing through the payment of taxes. The applicant told the Tribunal that he continues to work as a hairdresser and that he hoped to open a salon with his wife but that plan has been ‘shelved’ since his visa was cancelled.

11. The applicant states that both he and his wife have been living in Australia for a number of years, are settled in this country and prefer to live in Australia. His whole family have adapted to the Australian way of life and his children cannot speak anything other than English and would find it hard to settle in another country. The Tribunal accepts that evidence. The applicant told the Tribunal that since the issue came up in his citizenship application, it has had a significant impact on his family. The Tribunal accepts that evidence.

12. The applicant told the Tribunal that he is the main breadwinner for the family and his wife cannot handle both children, so he would have to stay with his family and cannot leave them. The applicant also told the Tribunal that Hong Kong is very expensive and the family would not be able to survive with two children and without the support of the grandparents as he and his wife would have to work to support the family. Putting aside the applicant’s evidence that he and his family are unlikely to leave Australia even if his visa is cancelled, the Tribunal notes that the applicant presented no probative evidence concerning the cost of living in Hong Kong, his earning capacity and of any support he may be able to get from family or friends and while the applicant claims he could not get financial support from others including his mother, he presented no evidence to support that assertion. The Tribunal does not accept, on the limited evidence before it, that the applicant would be unable to survive financially if he and his family were to live in Hong Kong, even if there will be some financial hardship or disadvantage to him and the family due to relocation.   

13. The Tribunal generally accepts that, given the length of the family’s residence in Australia and the degree of settlement, the family may experience hardship if they were to relocate to Hong Kong. The Tribunal also accepts that hardship would be caused to the applicant and his family if he was to be separated from his family, if that is the result of his visa being cancelled (which is not necessarily the case).

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

14. Nothing adverse is known about the applicant’s obligations under the Act.

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

15. There are no known instances of non-compliance.

    The time that has elapsed since the non-compliance

16. The application for the visa was made in May 2016 and just over six has years passed since the non-compliance.

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

17. There are no known breaches of the law.

    Any contribution made by the holder to the community

18. The applicant refers to the payment of taxes and he provided to the delegate evidence of having made donations. He told the Tribunal that he and his family care about the Australian community and have made donations and raise their children in the same way. The Tribunal accepts that the applicant has made a contribution to the community.

19. 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

20. The applicant had sponsored his partner and child for visas and his evidence to the Tribunal is that his wife has been granted the permanent Partner visa. The visas held by the applicant’s partner and daughter may be subject to consequential cancellation. The applicant told the Tribunal that his wife and daughter hold permanent visas. As noted above, there is nothing before the Tribunal to indicate that any steps have been taken, or intend to be taken, to cancel their visas and the applicant’s representative told the Tribunal she is not aware of this taking place. The Tribunal acknowledges that it is a possibility if the applicant’s visa is cancelled.

    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

21. The applicant’s two children live in Australia and his youngest child is an Australian citizen. The applicant presented evidence of his daughter’s schooling and states that his children would be unable to re-settle in China. He told the Tribunal that his elder daughter has been living in Australia for years, cannot read Chinese and can speak minimal Chinese and she would not be used to the education system in Hong Kong. He states that if his daughter is to enter school in Hong Kong, she may have to go back a year or two and it would take her time to catch up. The Tribunal is prepared to accept that, given the length of the child’s stay in Australia, she may be used to the Australian environment and schooling and that it may take her time to ‘catch up’.

22. The Tribunal is generally of the view that given the children’s young age, the children would be easily able to adapt to life in any other country, including China. It is not uncommon for children to migrate to a new country with their parents and there is nothing in the applicant’s evidence that would indicate that the family’s or the children’s particular circumstances would render them unable to adapt to the new environment or make it difficult for them to do so, even if it does cause some hardship to the family at first.

23. The Tribunal accepts that given the children’s young age, it is in their best interests to be cared for by both parents. However, this need not necessarily occur in Australia. If the applicant is required to leave Australia as a result of the cancellation of his visa, his partner’s visa may not necessarily be cancelled and she may remain in Australia with the children, or may choose to leave Australia with the applicant and the children. If she does so, the children would continue to be in the care of both parents irrespective of whether the children reside in Australia or in Hong Kong. Similarly, if the applicant’s partner retains her visa and sponsors the applicant for a Partner visa, both parents can continue to care for the children in Australia. Ordinarily, this would mean that the best interests of a child would not be adversely affected if a parent’s visa is cancelled and if both parents remain in Australia or leave Australia as a result and the family unit is preserved.

24. However, the Tribunal recognises that there is an added complication in this case because China does not recognise dual citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that “Children’s citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce”. The Tribunal acknowledges that if the child retains his Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the child is unlikely to be able to acquire the Chinese citizenship and that may mean that he does not have access to public systems including healthcare and education, should the family return to China. It may be necessary for the Australian citizen younger child to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the child will require residence permits to remain in China on a long term basis and that any Chinese visa would need to be periodically renewed.

25. The Tribunal accepts that the residence of the Australian citizen child in China, where she cannot acquire the Chinese citizenship without renouncing the Australian citizenship, and where she may be required to reapply for visas and routinely register with the local authorities and have limited access to government services, may cause hardship to the family and the child. The Tribunal accepts that given the child’s Australian citizenship, she may experience significant limitations in various aspects of her life in China, including residence permits, access to education, healthcare and some employment, unless the Australian citizenship is renounced and the Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant’s Australian citizen daughter require the child to remain in Australia and that the best interests of the child would be adversely affected by the cancellation of the applicant’s visa. 

26. As noted above, the Tribunal does not consider that the best interests of the eldest child would be adversely affected by the cancellation. Even if the applicant’s eldest daughter is well settled in Australia, which the Tribunal accepts, the Tribunal is of the view that she would be capable of re-settling in China and her best interests would be met if she remains in the care of her parents irrespective of the country of her residence.

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

27. In his response to the NOICC the applicant states that he fears returning to Hong Kong given his political stance on the ‘anti-extradition movement’. The applicant refers to the political situation and expressed his belief that there should be free and fair elections. The applicant told the Tribunal that there is no freedom of speech in Hong Kong and he does not wish his children to be ‘brainwashed’ by the communist party.

28. The Tribunal found the applicant’s statement in response to the NOICC and his evidence to the Tribunal to be extremely vague. The applicant refers to the general principles and beliefs but mentions very little about his own involvement. The applicant states that he believes in what he advocates for but he does not mention what his actions may have been, or will be upon return to Hong Kong (even if the cancellation of his visa was to result in the applicant having to depart Australia). The applicant told the Tribunal that he has shared information on his Facebook page but he had presented no evidence to the Tribunal of having done so. He also told the Tribunal that he had attended demonstrations and photographs had been taken but presented no evidence of his activities.

29. Even if the Tribunal was to accept the entirety of the applicant’s evidence, the Tribunal is mindful that the applicant is eligible to seek a protection visa in Australia. It is the policy of the Australian government not to return any person who has been found to be a refugee and, should it be determined that non-refoulement obligations apply in relation to the applicant, the applicant will not be removed from Australia involuntarily. In such circumstances, the Tribunal is of the view that Australia’s non-refoulement obligations will not be breached as a result of the cancellation.

30. The applicant’s spouse and children live in Australia and are Australian permanent residents or citizens. The Tribunal acknowledges that the principles of family unity may require his presence in Australia.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

31. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. There is nothing to suggest the applicant would be detained indefinitely. The applicant will face restrictions on onshore visa application, due to operation of s 48, and may be subject to an exclusion period in relation to some future visa applications. The cancellation of the visa would result in the applicant losing some of the entitlements he may have acquired as a permanent resident of Australia, including the ability to sponsor others for Australian visas. (As noted above, the cancellation of the applicant’s visa may result in the cancellation of the visa held by his partner.) The applicant would also lose his eligibility to seek Australian citizenship if he is not a holder of a permanent visa.

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

32. The degree of hardship that may be caused by the cancellation has been addressed above. Essentially, the Tribunal accepts that if the cancellation of the visa is to lead to the applicant’s departure from Australia, or if it is to result in his separation from his family, this could cause significant hardship to the applicant and his family. Similarly, if the applicant’s partner and children were to leave Australia, relocation to Hong Kong could also cause significant hardship to them, particularly the applicant’s two children. The Tribunal also accepts that the applicant prefers to remain in Australia with his mother and that he expects to take on carer responsibilities towards his mother in the future.

33. The applicant told the Tribunal that he is the only child of his mother and the Tribunal accepts that to be the case, and that he prefers to live with his mother, but is mindful that the applicant is an adult and, in the Tribunal’s view, can live independently. As for the mother’s needs, these claims have been addressed above. Essentially, there is little evidence before the Tribunal about the mother’s needs and that these are being met by the applicant.

34. The applicant told the Tribunal that his children have better experiences and options in Australia that would not be open to them in Hong Kong. In the Tribunal’s view, that is an overly simplistic representation of what the family may experience in the future. It may be that the family’s, and the children’s experiences and options would be different in Hong Kong compared to Australia but it is too simplistic to say that their lives would necessarily be worse in Hong Kong compared to Australia.

1. The Tribunal is also of the view that much of the hardship to which the applicant refers could be ameliorated if the applicant is to seek a Partner visa in the future, either onshore or offshore. His wife is a holder of a permanent visa and is eligible to sponsor him for a visa in the future. The Tribunal acknowledges that there can be no certainty of that visa being granted and that there is also a possibility that Ms Chung’s visa may be cancelled, preventing her from acting as a sponsor, but at present there is no evidence that this would occur.

2. The Tribunal has found that the applicant had not complied with ss 101 and 103 of the Act and that there are grounds for cancelling his visa.

3. The Tribunal accepts that there are strong reasons why the visa should not be cancelled. The Tribunal accepts that considerable hardship could be caused to the applicant and his family if they were to relocate to Hong Kong or if the applicant was to be separated from his family in Australia. the Tribunal accepts that the cancellation of the applicant’s visa may lead to the cancellation of the visas held by his partner and daughter and that would also cause hardship. The Tribunal places significant weight on its finding that the cancellation of the visa would be contrary to the best interests of his child, and the Tribunal acknowledges it is a primary consideration (albeit not a determinative one). The Tribunal acknowledges the applicant’s evidence about his relationship with his mother and her needs, and his aspirations for his children. All of these factors weigh strongly against the cancellation.

4. The Tribunal has formed the view that the cancellation of the visa would not be in breach of Australia’s non-refoulement obligations but accepts that it would be contrary to the best interests of the applicant’s child and may also be contrary to the principles of family unity. These matters weigh against the cancellation.

5. The Tribunal accepts that the applicant has spent significant time in Australia, that he and his family are settled here, the children are used to the Australian way of life and his elder daughter is used to the Australian school system. The Tribunal accepts the hardship that would be caused if the family was uprooted and returned to Hong Kong. The Tribunal also acknowledges the applicant’s evidence about the family’s financial circumstances. These factors also weigh against the cancellation.

6. While the Tribunal accepts that there are strong reasons why the visa should not be cancelled, the Tribunal has formed the view that there are also strong reasons why the visa should be cancelled. The Tribunal gives greatest weight to the fact that  the decision to grant the visa was based on incorrect information and bogus documents. It is highly significant, in the Tribunal’s view, that the applicant’s eligibility for the visa was dependent on his relationship with Ms Wu. If the applicant’s relationship was not as claimed, not of the duration as claimed or not of the nature as claimed – and the Tribunal has formed the view for the reasons outlined above that this was the case and that the applicant gave incorrect answers about his relationship with Ms Wu – this may have affected his eligibility for the grant of the visa. Essentially, the Tribunal has formed the view that the applicant did not have a de facto relationship with Ms Wu for the period claimed and in that case, he would not have been entitled to be granted the Skilled visa. The Tribunal has decided to give this factor, which favours the cancellation, the greatest weight.

7. The Tribunal also places some weight on the fact that the applicant had done nothing to ensure his application contained only correct answers and no bogus documents. He claims to have signed a blank form and took no steps whatsoever to check the content of his application. He took no responsibility for it. The applicant’s indifference about the truthfulness or otherwise of the information in his application also weighs somewhat in favour of the cancellation.

8. 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

9. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

   Kira Raif
   Senior Member