MAK (Migration)

[2017] AATA 2322

MAK (Migration) [2017] AATA 2322 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr KIM LING MAK

Ms Shun Kuen Tsang

CASE NUMBER:  1706422

DIBP REFERENCE(S):  BCC2017/618526

MEMBER:Kira Raif

DATE:9 November 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 09 November 2017 at 4:56pm

CATCHWORDS

Migration – Cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Compliance with visa conditions – Failure to answer questions in application form – Definition of question in application form - Meaning of dependent - Secondary visa automatically cancelled

LEGISLATION

Migration Act 1958, ss 100, 101, 104, 107, 109, 140, 348

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

Tien & Ors v MIMA (1998) 89 FCR 80

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 Immigration to cancel the applicant’s Subclass 143 (Contributory Parent) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in February 1953. He made an application for a Contributory Parent Class CA visa in June 2013, being sponsored by his son, and the applicant was granted that visa in April 2015. The applicant was issued with the relevant Notice of Intention to Consider Cancellation (NOICC) in March 2017 because the delegate formed the view that the applicant did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled in March 2017. The visa held by the applicant’s spouse appears to have been cancelled under s. 140 of the Act. The applicant seeks review of the delegate’s decision.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicant appeared before the Tribunal on 9 November 2017 to give evidence and present arguments. The applicant’s children attended the hearing to give oral evidence but the Tribunal determined it was not necessary to take that evidence. 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 by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. 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.

6. 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.

7. 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.

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

8. 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.

9. 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. 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?

10. 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.

11. The applicant provided to the Tribunal a copy of the primary decision record. It sets out the following information.

    a.The applicant made the application for the Contributory Parent Class CA visa on 28 June 2013. He was sponsored in that application by his son Mr Tik To Mak.

    b.The applicant completed Form 47PA as part of his application. Question 55 of that form required the applicant to give details of all his dependent family members aged 18 years or over and other dependents. The applicant did not provide a response to that question.

    c.The applicant was granted the Contributory Parent visa on 30 April 2015.

    d.In December 2015 the applicant’s daughter Sin Ting Mak made an application for a Class BT Child visa. In support of that application the applicant provided a declaration in which he stated that he was informed in January 2013 that his daughter was involved in a car accident and he travelled to Australia to look after the daughter. The applicant stated that since the daughter was discharged from hospital, she stayed with him and his wife. The applicant stated that his daughter is wholly dependent on him and his wife for daily activities.

12. Ms Sin Ting Mak also provided with her application a statement from her legal representative which notes that she was involved in an accident on 6 January 2013. She was transferred to a rehabilitation centre in April 2013 and remained an inpatient until April 2014. She had received Loss of Earning benefits and has been assessed a 94% whole person impairment.

13. The NOICC states that the applicant did not comply with s. 101(a) of the Act as he had not completed the application form in a way that all questions on it were answered. In his response to the present NOICC the applicant claims that Question 55 did not pose a question, as contemplated by s. 101 of the Act, but was a direction to provide information concerning dependents. The Tribunal does not accept that s. 101 is intended to operate in a way that justifies such a distinction. The purpose of that provision is that all relevant information is provided and that such information is correct. It is not limited to only particular type of information or circumstances where there is a question mark at the end of the sentence, as opposed to what the applicant refers to as a direction. Question 55 of the form sought to elicit information about the applicant’s dependents. Whether it did so in the form of a question or in the form of a direction, the Tribunal finds that the answer given in response to Question 55 is an answer to which s. 101 applies.

14. The applicant also suggests that he did not provide any information in response to Question 55 and it needs to be considered whether he provided an ‘answer’. In the Tribunal’s view, that falls within the operation of s. 101(a) which specifically requires a non-citizen to fill in the form in a way that all questions are answered. If the applicant’s daughter was a dependent family member and the applicant failed to refer to her in response to that question, he would be in breach of s. 101 of the Act.

15. The applicant has identified in his submissions to the Tribunal what he claims to be jurisdictional errors in the primary decision. The Tribunal conducts a review de novo and any such errors, even if established, do not form the basis for setting aside the cancellation. The applicant also suggests that he answered the questions to the best of his belief. The Tribunal notes that s. 100 provides that an answer may be incorrect even if the person giving it did not know it was incorrect. So the issue here is not the applicant’s subjective belief but objective information, which is a finding of fact for the Tribunal.

16. The Tribunal must consider whether at the time the applicant completed the application form, his daughter was his dependent. In his response to the NOICC and various submissions to the Tribunal the applicant argues that his daughter was not his dependent, so there was no need to mention her on the application form. The applicant notes that his daughter was an inpatient at the Royal Adelaide Hospital at the time the applicant made his application. She was discharged from hospital in April 2014. The applicant notes that while she was treated at the hospital, the daughter’s in-patient costs and medical expenses were covered by the insurance scheme. Following her release in April 2014 she went to live with her brother and the insurance provided for continuing attendance by health care workers and the assistance continues to the present day. Miss Mak received a lump sum payment in July 2015 and weekly compensation. The applicant argues that until 1 July 2015 the daughter’s reliance on her parents was not as significant as her reliance on the compensation.

17. The applicant’s oral evidence to the Tribunal was consistent with his written submissions, which are supported by documentary evidence. The applicant told the Tribunal that he made a previous Contributory Parent visa application which they withdrew because they did not have the funds to pay the second instalment. In January 2013 their daughter was involved in an accident and was hospitalised. They were granted visitor visas to visit their daughter. When they arrived in Australia in mid-January, their daughter was unconscious. The social worker advised them that they could claim compensation. His son found a lawyer and they arranged compensation payments around February 2013. The applicant said his daughter was in hospital between January and April 2013. They did not have to pay for hospital expenses including accommodation and medical expenses, whether because these did not arise or because they were covered by the insurance company. The money was transferred to the daughter’s account by the insurance company. The applicant said that once his daughter improved, she was transferred to the rehabilitation centre and the fees were covered by the insurance company.

18. The Tribunal accepts the applicant’s evidence and accepts that while his daughter was in hospital and the rehabilitation centre, her expenses were covered through the insurance scheme. These included the expenses for the predominance of the daughter’s needs such as accommodation, food, medical treatment and other expenses. Further, in November 2013 and in 2015 the daughter received substantial lump sum payments which were also placed into her account and would have contributed significantly to the various expenses. The applicant’s evidence is that his daughter had no other personal expenses while in the rehabilitation centre, other than minor expenses for food or lollies, and his evidence is that the funds from the compensation payments were sufficient to cover his daughter’s expenses. The Tribunal accepts that evidence

19. The Tribunal acknowledges that the applicant’s daughter may be considered to be incapacitated but incapacity alone is not sufficient to establish dependence. That limb of the definition of dependence still requires financial dependence and the Tribunal does not consider that at the time the application was made, there was any financial dependence by the daughter upon the visa applicant. There is no evidence to support the contention that there was any form of financial dependence by the daughter upon her parents throughout her hospitalisation and rehabilitation and probably not for some time after she was released from the rehabilitation centre, given the lump sum payments.

20. The Tribunal has formed the view that there is no basis to conclude that the daughter was financially dependent on her parents at least until after her release from the rehabilitation centre. Whether or not the applicant was required to inform the Department about any dependence that developed after his daughter’s release from the rehabilitation centre, any failure to do so would be relevant to s.104 and not s. 101 and the present NOICC does not rely on s.104. The primary decision record indicates that a decision was made not to proceed with a cancellation based on breach of s. 104 because the daughter was dependent at the time the applicant has made his visa application. The Tribunal has formed a different view and found that if such dependency developed, it was well after 2014 when the daughter was released from the rehabilitation centre and may have been considerably later than 2014, depending on the use of the lump sum payment.

21. For the reasons stated above, the Tribunal has formed the view that at the relevant time there was no financial dependence by the applicant’s daughter on him or his wife. She was not a dependent child of the applicant. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

22. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 143 (Contributory Parent) visa.

24. The Tribunal has no jurisdiction in relation to the second named applicant.

    Kira Raif
    Senior Member