Sam (Migration)

Sam (Migration) [2020] AATA 3492 (26 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ka Chong Sam
Ms Siew Choo Lam
Miss Yi Ling Sam
CASE NUMBER:  1826526
DIBP REFERENCE(S):  BCC2015/2593866 OSF2013/079872
MEMBER:Kate Millar
DATE:26 June 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 143 (Contributory Parent) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 26 June 2020 at 5:06pm
CATCHWORDS
MIGRATION – cancellation – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – Federal Circuit Court remittal – incorrect information in visa application – applicant did not declare dependent child over 18 years old – care arrangements for adult child with disabilities – health criteria applies to non-migrating family members – intention for a child to not migrate – documents not translated into English – onus of proving intentional falsity of statements – dependence upon another family member – relying on family members for language interpretation and legal instructions – financial loss – impact on university studies – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 18
Migration Act 1958, ss 5(1), 20, 48, 97-101, 107-109, 140
Migration Regulations 1994, Schedule 2 cls 143.229, 143.311; Schedule 4 Public Interest Criterion 4005; rr 1.03, 1.12, 2.12, 2.41
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Huynh v MIMIA (2006) 152 FCR 576
MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration and Ethnic Affairs [1994] FCA 1534
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tarasovski v MILGEA (1993) 45 FCR 570
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Ka Chong Sam is a citizen of Malaysia. Mr Sam together with his wife, Ms Siew Choo Lam and their youngest daughter, Miss Yi Ling Sam applied for Subclass 143 (Contributory Parent) visas on 22 February 2013. Their visas were granted on 15 December 2014.
Mr Sam and Ms Lam have four children; Che Hong (Patrick) Sam, Yoke Kwan (Nicky) Sam, Yi Ling (Elaine) Sam and Zhi Xiong Sam. Patrick and Nicky are permanent residents of Australia. Zhi Xiong Sam suffers from cerebral palsy and has significant disabilities which result in him being unable to live independently.
On 28 February 2017, a delegate of the Minister for Immigration cancelled the visas of Mr Sam, Ms Lam and Yi Ling under s.109(1) of the Migration Act 1958 (the Act) on the basis that Mr Sam had failed to fill out his visa application correctly, as he failed to list Mr Zhi Xiong Sam as a dependent child over 18 years of age. This is an application to review the decision to cancel Mr Sam’s visa.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is the decision to cancel Mr Sam’s visa. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by virtue of s.140(1) of the Act. As no decision was involved in the visa cancellations under s.140(1), the Tribunal has no jurisdiction with respect to Ms Lam and Yi Ling.
This matter has previously been before this Tribunal (differently constituted) and was remitted by the Federal Circuit Court with the consent of the Minister on the basis that the Tribunal had misunderstood or misconstrued evidence relating to whether Mr Sam had declared Zhi Xiong in his visa application.
In the original decision, the delegate found that Mr Sam had not met the requirement in s.101 that visa applications to be filled out in such a way that no incorrect answers are given, and that this established a ground to cancel.
If a ground to cancel the visa is established, the Tribunal must consider whether the visa should be cancelled. This involves looking at prescribed factors as well as matters of Departmental policy and additional factors raised by the applicants.
The applicants appeared before the Tribunal on 2 December 2019 and 22 January 2020 to give evidence and present arguments. The Tribunal heard from each of the applicants. The Tribunal also received oral evidence from Patrick and Nicky. The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
REQUEST TO ADJOURN THE HEARING
Prior to the hearing on 2 December 2019, the applicant requested an adjournment on the basis of the volume of the material required to be assessed given the long-running nature of the matter, and the unlikelihood that further written submissions could be provided until the day of the hearing.
The registered migration agent in this matter, who is also a legal practitioner, has represented the applicants both before the previous Tribunal and at the Federal Circuit Court. The issues are not new to the parties or to the representative, and the request for adjournment because of unfamiliarity with the material was refused. The parties were advised they could address the Tribunal further about the need for an adjournment at the scheduled hearing time. The request for an adjournment was properly not pursued at the hearing.
A written submission was provided on the day of the hearing, however no new information provided, with the applicants relying on previous submissions made to the Tribunal and to the Department with the addition to a submission about the financial loss to the applicants if the visa is cancelled.
A hearing was held on 2 December 2019. A further hearing was scheduled on 19 December 2019, however the hearing notice was defective and was rescheduled to 22 January 2020 by videoconference.
SUMMONSED DOCUMENTS
In light of the remittal by the Federal Circuit Court, the Tribunal summonsed the file held by the Department containing Mr Sam’s application for a Subclass 143 visa.
This file shows the following:
·     The letter dated 20 February 2013 from the migration agent enclosing the visa application notes there are three applicants; Mr Ka Chong Sam, Ms Siew Choo Lam and Miss Yi Ling Sam. It notes the balance of the family includes Zhi Xiong Sam.
·     In the Application for a Parent to Migrate to Australia (form 47PA), signed by Mr Sam and Ms Lam, Part H Question 55 is Dependent children aged 18 years or over and other dependents. Yi Ling Sam is named as the sole dependent child aged 18 years of age or over. Zhi Xiong Sam is not named as a dependent child over 18 years of age.
·     At Part J Question 58 of this form Details of other family members Zhi Xiong Sam is named as one of Mr Sam’s children.
·     At Question 63, Mr Richard Tan is named as the person assisting to complete the form.
The application shows Zhi Xiong Sam is named as a child of Mr Sam and Ms Lam, but is not listed as a dependent child over 18 years of age.
MR KA CHONG SAM’S EVIDENCE
After the previous hearing of this matter, Mr Sam provided a letter dated 14 December 2017 from an aged care specialist, Dr Teck Yew. In this letter Dr Yew states that he is seeing Mr Sam for assessment of his cognitive decline. It states on testing Mr Sam does have some deficits in his cognitive function, although the cause is undetermined. His doctor states he needs a brain scan and will be reviewed again in January 2018.
Mr Sam was asked at the hearing on 2 December 2019 whether he had undertaken the scan recommended. He said he had the CT scan and that the results were normal. He said he has pressure on him because he is unable to work, and as a result he cannot sleep. He was asked if he has problems with his memory, and he said he can’t recall if something happened a long time ago because he wouldn’t worry about it. He said he does not have any medical problems.
The Tribunal sought submissions from his representative regarding Mr Sam’s cognitive capacity. The representative said Mr Sam has no diagnosed condition, and he is not aware of any condition such as Alzheimer’s Disease. The representative advised his instructions from the family are Mr Sam’s memory is poor for recalling details and events.
It was evident both at hearing of the previously constituted Tribunal and at the current hearing that Mr Sam gave oral evidence that was not in his favour. For example, contrary to submissions provided to the Tribunal he gave oral evidence that Zhi Xiong was financially dependent on him. Mr Sam also gave evidence that he was meeting the costs of the household before coming to Australia, and his children helped him financially only occasionally and not in large amounts. He had limited understanding of the reason his visa was cancelled, stating he was told he had cheated the government, but was not sure in what way he was said to have cheated.
When it was put to him that he had put incorrect information in his visa application, he said that he asked an agent to handle his application and that at that time in 2012 he had arranged for the child (Zhi Xiong) to stay in Malaysia, and arranged renovation of the home and a car for him. He said he had asked his sister-in-law to look after him, together with a nanny from Indonesia. This is consistent with the statutory declarations provided by other family members. He provided details of the arrangements for the care of Zhi Xiong and the renovations to the house and purchase of a car. He accurately stated the time between arriving in Australia and returning to Malaysia. He described the sale of his restaurant to his brother and could provide the sale price of RM600,000, the same amount as independent oral evidence from Patrick and specified this money was from his brother who has taken over the restaurant. He was less clear when asked how much money he had loaned his children stating “a few thousand, dozens of thousands, and less than AU100,000”. He could accurately describe when his wife could access her pension payments.
Mr Sam has not provided medical or other reports with a diagnosis of any condition or to confirm preliminary testing by Dr Yew or the impressions of the family. He has had ample opportunity to provide any such evidence before the hearing with the assistance of his family and says that the tests conducted showed he had normal function. This was not contradicted in submissions from his representative. The Tribunal was not convinced that the oral evidence he gave was not correct where these matters were within his experience or knowledge, which is up to approximately the time he migrated to Australia. It found his evidence following arrival in Australia less reliable, as he was unsure why his visa had been cancelled and of some financial details from this time. As this coincides with Patrick taking control of the family finances, the Tribunal was not convinced this was due to problems with his recall rather than not being aware of the information. Nevertheless, it took a cautious approach to his evidence and was careful not to rely on small inconsistencies or incongruent evidence.
TRANSLATION OF DOCUMENTS
Section 18B of the Administrative Appeals Tribunal Act 1975 states that the President may give written direction in relation to the operations, or procedure of the Tribunal, or the conducts of reviews by the Tribunal. Under s.18(3), if the Tribunal deals with a proceeding in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the proceeding.
The Migration and Refugee Matters Practice Direction dated 1 August 2018 specifies at cl.5.5 that All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.
In reviewing the documents provided in previous submissions, and relied on by the current representative who is also a legal practitioner, several documents provided are not in English, in particular documents said to show the student loans of Patrick and Nicky, the pensions of Mr Sam and Ms Lam, a document reported to be the proof of purchase of a motor vehicle in Malaysia, and a document reported to be a tax return of Mr Sam. While the Tribunal did its best with the material available to it, it is not for the Tribunal to infer that documents that are not in English are documentary evidence of the matters claimed by an applicant.
The statutory declarations of Mr Sam and Ms Lam record Patrick as the person who has interpreted the contents of the statutory declaration to Mr Sam and Ms Lam respectively and has attested that they have understood and comprehended the documents. As Patrick has an interest in the outcome of this matter, this gives rise to a concern about the independence of these declarations. On this being put to the applicant, it was submitted that “every statement says the same thing” and the statutory declarations are reliable. While the statutory declarations are consistent amongst each family members, Mr Sam’s statutory declaration was not consistent with his oral evidence regarding the financial support of Zhi Xiong.
As Mr Sam was less certain about events and financial arrangements after Patrick started managing the family’s financial affairs, and given Patrick’s interest in this matter, the Tribunal places greater weight on the oral evidence of Mr Sam and Ms Lam given directly to the Tribunal through an interpreter in any instance where this was inconsistent with the statutory declarations provided.
ONUS TO ESTABLISH A GROUND
It is submitted by the representative that the onus of proving falsity of statements for the purpose of the migration legislation lies on the Minister, and in relation to such a breach requires a high degree of satisfaction because of the serious consequences of the decision. The agent relies on Singh v Minister for Immigration and Ethnic Affairs, Tarasovski v Minister for Immigration and Khan, Sophia Velayat.
In Singh v Minister[1] Sackville J stated the burden lies on the Minister of proving facts demonstrating the falsity of statements made by the applicant, and in applying that onus it is necessary to consider the serious consequences of falling within the then s.20 of the Migration Act.[2]
[1] [1994] FCA 1534
[2] At [16]
Tarasovski concerns a protection visa and the interpretation of the then s.20 of the Act. Justice Wilcox remarked that the consequences of conduct falling within s.20 are serious, and a court should only find a person has contravened s.20 where the evidence establishes to a high degree of satisfaction the proposition and cites Briginshaw v Briginshaw.[3]
[3] At [4]
Khan, Sophia Velayat[4] is a decision of this Tribunal, and is not binding authority for this matter. Paragraph 31 of this decision refers to Singh and Tarasovski and states these decisions are authority for the proposition that the onus of proving the falsity of statements lies on the Minister and that the standard of proof required in relation to such a breach, because of the serious nature of the consequences involves a “high degree of satisfaction”.
[4] [2003] MRTA 7507
In Sun v Minister for Immigration and Border Protection,[5] a decision of the Full Court of the Federal Court, Flick and Rangiah JJ state that as a general proposition, the common law concept of onus of proof has no application to administrative decision-making. In addressing the decision in Jasbeer Singh their Honours state that the Act has been the subject of innumerable amendments since that decision and, in particular, there is no equivalent provision to s 20 at it was then enacted.[6] The Tribunal is bound by the reasoning in Sun that an onus of proof does not apply in administrative decision-making. The Tribunal does not agree that Briginshaw applies in an administrative context.
[5] [2016] FCAFC 52
[6] At [71]
However, the Tribunal is mindful of the gravity of the consequences of cancelling a visa and as such establishing a ground to cancel a person’s visa cannot be made lightly or on the basis of inexact proofs.[7]
[7] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 (5 April 2016) per Logan J at [20]
In Sullivan v Civil Aviation Safety Authority, Flick and Perry JJ state:
The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the Tribunal and thereafter this Court on “appeal.”[8]
[8] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ at [119]
The inapplicability of the submission also reflects the shift in Mr Sam’s case from his case before the previous Tribunal that Zhi Xiong was reliant on Patrick for his financial support, food, shelter and clothing costs and therefore was not a dependent, to a concession before the Tribunal in the current instance that a ground exists to cancel his visa.
Before this Tribunal, Mr Sam has conceded he has provided incorrect information. This is also established by the application form which, while naming Zhi Xiong as a child of Mr Sam, does not name him as a dependent child over 18 years of age. It follows that a finding that he provided incorrect information is not based on disputed evidence.
Mr Sam submits, through his representative, that the “major factor” to consider is whether Mr Sam or his family members intentionally misled the Department as to whether Zhi Xiong was dependent on Mr Sam.
On a finding being made that a ground to cancel the visa exists, which requires the close attention of the Tribunal to due to the gravity of the consequences, the remaining question is whether, having had regard to the prescribed factors and any other information given by Mr Sam, his visa should be cancelled.
This requires a consideration of matters prescribed by the Migration Regulations 1994 (the Regulations) and any other factors, which can include matters of government policy. None of these expressly require consideration of whether Mr Sam intentionally misled the Department, although this may be relevant. The Tribunal does not accept the premise that the major factor in this application is whether there was an intention to mislead, rather than the exercise of a discretion requiring consideration of each of the prescribed factors together with matters of government policy and any other information put forward by an applicant.
While care would be required in making any such finding, it is not the sole or even necessarily the central issue in this matter, and there is no onus on the Minister to establish that such an intention existed.
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 (among other things) s.101 of the Act. This requires non-citizens to provide correct information in their visa applications and passenger cards.
To exercise the cancellation power under s.109 of the Act the Minister must first issue a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance.
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?
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, which requires that a non-citizen must fill in or complete his or her application form in such a way that all questions on it are answered and no incorrect answers are given or provided.

Under s.98 of the Act, 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.
Under s.100 of the Act, 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 it was incorrect.
These provisions are particularly relevant in this case as Mr Sam said his visa application was completed relying on the advice of others, in particular his migration agent. The migration agent in turn advised he relies on instructions from Patrick and Nicky.
In summary, the s.107 notice specifies that the delegate considers that information about the family’s living arrangements and Zhi Xiong Sam’s circumstances were omitted from the application for a Class CA, Subclass 143 (Contributory Parent) visa, specifically that Zhi Xiong Sam was still a member of the family unit and that Mr Sam and his wife were responsible for his maintenance and wellbeing and that he was not declared as a dependent child.
The delegate notes the following information from the visa application:
·On page 14 Question 55 of Form 47PA in answer to Give details of ALL your and/or your partner’s dependent children aged 18 years or over and other dependents (including any dependent children of a dependent) Mr Sam provided details of his daughter Miss Yi Ling Sam, and the other spaces were left blank.
·On page 18 Question 58 of Form 47PA Give details of ALL your other family members under the heading Your children Mr Sam provided the details of Che Hong Sam, Yoke Kwan Sam and Zhi Xiong Sam.
·On page 25 Question 17 of Form 47PA Mr Sam, Ms Lam and Miss Yi Ling Sam signed a declaration that I understand that if I gave false or misleading information, my application may be refused, or any visa granted may be cancelled… I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.
·A completed application form, Form 47A Details of child or other family dependent family member aged 18 years or over was supplied by Miss Yi Ling Sam and no other 47A forms were provided to declare any other children aged 18 years or over who were dependent on Mr Sam or Ms Lam.
Mr Sam concedes he provided incorrect information in not specifying that Zhi Xiong was a dependent child aged over 18 at Question 55 of Form 47PA; and by not including a Form 47A for Zhi Xiong with the application. This is the provision of an incorrect answer by way of omission.
As a result, 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?
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).
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).
Mr Sam provided detailed submissions and statutory declarations from himself, Che Hong (Patrick) Sam, Yoke Kwan (Nicky) Sam, Ms Lam, Yi Ling (Elaine) Sam, Ms Siew Foong Lam and Mr Richard Tan.
Other documents were annexed to these statements and provided to the Tribunal. Further documents were provided to the Tribunal on the previous hearing of this matter and a table of the documents is annexed to this decision.
In these submissions, it is conceded that Mr Sam failed to comply with s.101 of the Act, but that this should be understood in the context of:
(i)His inability to read and write in English, with the result that Patrick and Nicky completed the forms for him in conjunction with the previous migration agent,
(ii)That he did not have a clear understanding of the term “dependent” in migration law; and
(iii)He did not have a deliberate intention to circumvent the operation of PIC 4005 in relation to the application.
Further submissions following remittal of this matter from the Federal Circuit Court rely on these grounds, and in addition that the cancellation of the visa will result in a significant financial penalty if the cancellation is affirmed, including approximately AUD150,000 in contributory parent visa fees paid to the Department that would be unrecoverable.
A central contention in this matter is that Che Hong (Patrick) Sam was financially supporting Zhi Xiong at the time of the visa application, and that the migration agent at the time gave incorrect advice that Zhi Xiong was not dependent on Mr Sam because he was dependent on Patrick.
It was submitted Patrick was providing for Zhi Xiong’s financial needs generally, in the payment of a domestic worker to assist with Zhi Xiong’s care, repayment of the mortgage, the payment and purchase of a car and funding renovations to the family home. It is submitted that it can be inferred that Patrick was providing for these needs as Mr Sam had retired, Patrick was regularly providing funds to Mr Sam, and Patrick has the greatest ability to support Zhi Xiong due to his employment as an accountant, with his income being greater than his siblings. It is conceded there is no independent verification of this support as it was provided mainly in cash.
On being asked why his visa should not be cancelled, Mr Sam said if he has no visa he will have to go back to Malaysia and will end up with nothing. He says he has paid the government so much money and he will lose that money. He said the mistake was not done by him because he cannot read or write, and the migration agent should take responsibility. He has followed the regulations in the last few years and has not worked as he was not allowed to work. He can’t eat or sleep well and his children are supporting him. If he is required to return to Malaysia he will have a broken family.
The source of the financial resources supporting the family and purchasing property is Mr Sam, including the financial support for Patrick to purchase a home. The home in Malaysia was transferred to Patrick’s name, however at no point did he purchase the home. He used ownership of the home to secure a loan.
A. PRESCRIBED FACTORS
The prescribed circumstances are set out in r.2.41 of the Regulations, and the Tribunal considered each of these in turn.
The correct information
In this case the correct information is that Zhi Xiong is a dependent child of Mr Sam.
The content of the genuine document (if any)
The content of a genuine document is not in issue in this matter.
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
Clause 143.229 of Schedule 2 to the Regulations requires that each member of the family unit of the applicant who is not an applicant for the Subclass 143 visa must meet certain public interest criteria. As it applies in this case, each member of the family unit who is not an applicant for the visa must meet PIC 4005.
Regulation 1.12 defines member of the family unit as including a dependent child of the family head, which in this case is Mr Sam.
As defined in r.1.03, a dependent child of a person includes a child who has turned 18 and is dependent on the person or is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. In this case, Zhi Xiong had turned 18 and is incapacitated for work due to the partial loss of his bodily and mental functions, and therefore is a dependent child of Mr Sam.[9]
[9] Huynh v MIMIA (2006) 152 FCR 576 at [26]-[27]
If Zhi Xiong had been disclosed as a dependent child, it is conceded Zhi Xiong would not meet the requirements in PIC 4005. As a result, Mr Sam would not have met the criteria for the grant of the visa. Ms Lam and Yi Ling would not have met the secondary criteria in cl.143.311 of Schedule 2 to the Regulations.
It follows that the decision to grant Mr Sam, Ms Lam and Yi Ling the visas was based on incorrect information, and they would not have been granted the visas had the correct information been provided.
This weighs heavily in favour of cancelling the visa, as Mr Sam, Ms Lam and Yi Ling did not meet the requirements for the visa when it was granted, or at any time since it has been granted.
The circumstances in which the non-compliance occurred
Mr Sam is unable to read and write English, and the Tribunal accepts he relied on Patrick and Nicky as well as the migration agent to complete the application forms. The migration agent took instruction from Patrick and Nicky.
The family submit that they did not intend to mislead the Minister, and were acting in accordance with advice from the migration agent. They rely on the statutory declaration of the migration agent. They claim that they had made arrangements for Zhi Xiong to remain in Malaysia and did not intend for him to come to Australia.
While Zhi Xiong is a dependent child of Mr Sam as he is incapacitated for work rather than his financial dependency, the advice from the migration agent itself turns on advice provided from the family members, in particular Patrick and Nicky. This assertion is problematic as Mr Sam’s oral evidence is that Zhi Xiong was financially dependent on him. Mr Sam said that before he came to Australia Patrick was assisting him financially a little, not a lot, one or two times a year because he is not rich. Mr Sam gave evidence that he did not declare Zhi Xiong on the visa application because they initially did not plan to bring him to Australia, and renovated the house and arranged for Mr Sam’s sister-in-law to care for him. He said the agent should know his information, but he did not know what the agent put in the application.
The statutory declaration of the migration agent states in part:
While discussing the balance of family criterion, Patrick and Nicky told me about their other sibling, namely Zhi Xiong SAM, who lived in the family home in Malaysia. I said at the time that Zhi Xiong would ordinarily be considered a dependent of the parents because of his medical condition.
Nicky told me that in fact Patrick (and herself, to a lesser extent) have been providing financial support by sending money back to Malaysia to provide for Zhi Xiong's daily needs. This included hiring a fulltime, live-in domestic helper to assist with his physical needs, money for his day-to-day living expenses, as well as the fact that Patrick was paying off the loan on the family home in Malaysia.
At that time, based on the information given to me by Patrick and Nicky, I took the view that Zhi Xiong was more dependent on Patrick than on anyone else and so I completed the form for Patrick's parents on the basis that Zhi Xiong was not a dependent child of the parents.
Both Patrick and Nicky also confirmed with me that at that time, there was no intention for Zhi Xiong to migrate to Australia because he had a short life expectancy, but instead, both of them had made arrangements to ensure that Zhi Xiong was and will be cared for in Malaysia through the help of an aunt and a domestic helper, and their wish then was for the parents and Elaine to unite with them in Australia. In particular Nicky wanted to be able to help look after her parents in their advancing years.
I had very little contact with the parents during the application process, as it was driven primarily by Nicky and Patrick. I also understood from them that the parents could not read, speak or write in English and so all communications in relation to the documents to be provided with the application and completing visa forms was through Patrick and Nicky.
I was, however, satisfied at the time that Zhi Xiong was dependent on Patrick based on the information given to me, including arrangements that Patrick and Nicky put in place in Malaysia to care for Zhi Xiong until he departs from this world, and that Patrick, primarily, and other family members living in Australia, will frequently visit and check on Zhi Xiong.
It is important to note that in Chinese culture, when the father passes away or where the father is no longer able to provide care for the family, the eldest son shoulders that responsibility. Accordingly, once Patrick and Nicky's father retired, the responsibility of looking after the family fell onto Patrick. My understanding, however, was that Patrick assumed a lot of those responsibilities as well as a filial eldest son, even before his father retired. Viewed from the angle of this entrenched Chinese tradition, Zhi Xiong's dependence on Patrick was and is natural and in keeping with the expectation of the Chinese community.
It is submitted that by this statutory declaration, the migration agent admits to providing incorrect advice to Patrick and Elaine, as the migration agent completed the application form on the basis that Zhi Xiong was dependent on Patrick, and not on Mr Sam. It is submitted that this weighs heavily in favour of not cancelling the visa.
The advice of the migration agent was premised on Patrick and Nicky stating they were providing financial support for Zhi Xiong. For the reasons that follow, the Tribunal is not satisfied this was a genuine belief.
Information about the finances of the family was provided by Mr Sam, Patrick and Nicky and Elaine, and the Tribunal has considered this information as detailed below.
Mr Sam’s evidence regarding the family finances
Mr Sam said he retired in 2013, and a year before his retirement made arrangements for Zhi Xiong to remain in Malaysia. He said he owned a restaurant and when he retired, he sold the restaurant to his younger brother for RM600,000 at the end of 2013. The visa application was lodged on 22 February 2013.
Mr Sam said when he was in Malaysia he paid the household bills such as electricity, tax for his address and water in cash from his work in the restaurant. When there was a loan he paid in cash at the bank with income from his restaurant, but the property was debt free until Patrick took out a mortgage. Groceries for the household were purchased through the business. He said he could “more or less” meet the household costs from money he earned. He was asked whether anyone helped with the bills before he came to Australia and he initially said no, then said his children would help him occasionally, but not regularly and not in fixed amounts. He gave oral evidence that he earned approximately RM1,800 per month.
In his statutory declaration dated 28 September 2016, and translated by Patrick to Mr Sam, Mr Sam states that Patrick had been helping him and his wife with financial support. He states that before he retired at the beginning of 2013, he was making about RM1,841 a month. He also arranged for part of his wages to be transferred to his wife’s pension fund.
Mr Sam attached a copy of his tax material which states it is for year of assessment 2005, 2006, 2007 and 2012. In 2012, his aggregate income is stated to be RM22,100, and in 2005, 2006 and 2007 it is stated to be RM20,400. These documents are not in the format of a tax return, are in English, and have in the footer “Warren Tax Advisory”. The Tribunal does not consider these are tax returns. However this approximately equates to an income of RM1,800 per month.
Mr Sam provided an untranslated document stated to be his 2013 tax return. The Tribunal is unable to draw any conclusions from this document as it is not translated, and the Tribunal is unable to determine the items against which numbers are recorded.
He also provided untranslated documents which he declares are evidence of Ms Lam’s pension fund, however as this is not in English, the Tribunal could not draw a conclusion as to what this pension was or is.
The Tribunal prefers the oral evidence given directly to the Tribunal to the statutory declaration interpreted by Patrick. It finds Mr Sam paid the household bills before coming to Australia. While his children occasionally provided financial support this was not regular or in large sums. The Tribunal further finds his income was sufficient to meet his expenses prior to the family home being transferred to Patrick and a mortgage taken out on the property.
Ms Lam’s evidence about the family finances
Ms Lam also provide a statutory declaration dated 28 September 2016, Ms Lam declares she confirms the contents of Mr Sam’s statutory declaration insofar as they relate to her and confirms the cancellation of the visas will result in great hardship to her and to her children Patrick and Nicky.
Ms Lam said before they migrated to Australia the costs of the household were sometimes met by her and sometimes by her son, who would sometimes give her cash.
In 2012, Ms Lam said they planned to retire and in 2013 they stopped work. She said her husband stopped being paid in March 2013, and that in February 2013 he was being paid the same as he was paid in July 2012. On being asked who was paying her husband, she said her son was paying him pocket money and for food and accommodation. She was asked again who paid food and accommodation costs up to March 2013, and she said that even when her husband was working he did not have a high salary.
Ms Lam said she was the person who paid the bills, but then agreed that sometimes her husband paid the bills.
Ms Lam said her husband earned RM1,800 per month. Their bills for electricity were over RM300 per month, water was RM100 every two months and the maid to care for Zhi Xiong was RM600 per month. She did not identify any other household expenses. This resulted in costs of approximately RM950 per month, which is less than her husband’s monthly payment. On being asked if there was any reason her husband could not meet the costs of the household, she said that because her son was working he was able to pay it.
Ms Lam’s description of the household expenses is consistent with Mr Sam’s oral evidence that he was able to pay his household expenses. The Tribunal found Ms Lam’s account of the payment of Mr Sam’s salary unconvincing and does not accept Ms Lam’s evidence that Patrick paid Mr Sam pocket money, and for food and accommodation where this is inconsistent with Mr Sam’s oral evidence. It preferers her original evidence that Mr Sam continued to work and be paid until March 2013. This is consistent with Mr Sam’s oral evidence that he retired in 2013.
Patrick’s evidence regarding the family finances
Patrick came to Australia in 2005 to study commerce and later completed a master’s degree in accounting. To do so, he took out a government loan of approximately AUD15,000 from the Malaysian National Higher Education Fund Corporation, which is still being repaid. He has worked in Australia as a tax accountant. In the response to the notice of intention to cancel the visa, Patrick provided a copy of his employment contract with H&R Block as a Business Services Manager.
In his statutory declaration dated 28 September 2016, Patrick states that due to his accounting background he thought Elaine could be considered a dependent as she was in her 18^th year and under tax law a person was considered to be a dependent even when they are in their 18^th year. He declares he thought Zhi Xiong, who was 22 years old at the time, was too old to be dependent. He told the migration agent Zhi Xiong was dependent on him because he was paying the mortgage and for Zhi Xiong’s expenses. He states he was advised they could proceed on the basis that Zhi Xiong was not dependent on Mr Sam, but that because of Zhi Xiong’s medical condition he would never be able to migrate to Australia. Due to Zhi Xiong’s life expectancy, as he was not expected to live past his 30s, they made the decision for his parents and Yi Ling to come to Australia and for Zhi Xiong to remain in the family home in Malaysia.

In his statutory declaration, Patrick states that as the eldest son he felt it was important to support his parents, particularly since they retired in 2012 and this included taking responsibility for Zhi Xiong. He states he visited Malaysia three to four times a year for one or two weeks, and on these occasions would bring money and give it to his parents to pay the domestic helper and provide for his brother’s needs. He said he would bring approximately AUD3,000 each visit, but is unable to access the bank account or provide copies of the statements as the account has been closed for some time. He provide a copy of his movement records from the Department file with a handwriting annotation of the amount of cash he said he took to his parents on each visit.
Patrick said electricity and water bills for the property in Malaysia were paid by his mother and food expenses were met by the business. Prior to the transfer of the house to Patrick’s name the home was owned outright and Zhi Xiong was living with his parents.
He states when they completed the visa application he understood the concept of dependency in relation to who was actually providing the support. As he was paying the mortgage on the house, paying for Zhi Xiong’s expenses and for the domestic helper he understood Zhi Xiong was dependent on him rather than on his parents.
The Tribunal found Patrick evasive in his evidence about why Zhi Xiong was not included on the application form, as he initially said he did give all of the information to the migration agent who filled in the form, and then that he was not aware of the information. On being asked again why Zhi Xiong was not included on the Form 47PA, Patrick said he was not sure. Given his control over Mr Sam’s assets obtaining loans against these assets, as well as being the person instructing the migration agent, and as a person with professional accounting qualifications in Australia, the Tribunal does not accept he was unaware of how the forms were completed.
Yi Ling’s evidence regarding the family finances
In her statutory declaration of 28 September 2016, Yi Ling declares that she noted at the time that the application listed her as a dependent child. She states that at the time she was being financially assisted by her parents but that Zhi Xiong was being provided for by Patrick. She declares that while she does not remember what was on the form, she agrees that at the time Zhi Xiong was not dependent on her parents.
Sale of business
In his statutory declaration, Patrick declares his parents did not have a lot of money and had to work hard to support the family, and they worked 7pm to 6am seven days a week. He states during this time his father only drew a small wage and at the time he retired was earning about RM2,200 per month.
Mr Sam said he retired in 2013. This is consistent with Ms Lam’s oral evidence. Patrick’s statutory declaration states his father retired in 2012 and his father sold his share in the business at this time.

100. Mr Sam said he worked in a restaurant which he owned, and when he retired in 2013 he sold it to his younger brother, for an estimated RM600,000 (approximately AUD204,500). Patrick also stated it was sold for RM600,000 and this was used to fund the visa application.
101. A Letter of Undertaking in English was provided between Sam Siew Loong and Kok Siew Khon on one part of Mr Sam and Ms Lam on the other part. It states it is in regard to a property and is an agreement for Ms Lam to transfer her half share in the property to Kok Siew Khon for RM600,000. The submissions accompanying this document state this an undertaking for the sale of land on which the business operated. It is dated 15 August 2014.
Family home in Malaysia
102. The family lived in a house which Mr Sam owned. This property was sold in 2018 for RM560,000 (approx. AUD190,900). The house was fully owned, but after being transferred to Patrick, a mortgage was taken out when Mr Sam was about to come to Australia. Mr Sam’s oral evidence was that they put his son’s name on the title so they could borrow money from the bank and said the certificate of title of the property would show it was in his son’s name. Mr Sam said this happened when he was about to come to Australia, and before this time he did not owe any money on the house.
103. Patrick also gave oral evidence that the property was debt free before it was transferred into his name.
104. Patrick said the house was transferred in 2012 and the loan was taken out in October or November 2012 for RM217,000, and he was meeting the repayments of RM1,300 per month. No evidence of the transfer was provided. In his statutory declaration, Patrick declares that since about 2012 he had taken over the loan for the family home. He provided a ledger showing payments totalling AUD4,500 in August and September 2016 which his statutory declaration states show his payment of the mortgage. The accounts are in his name, and include a mortgage expressed in Malaysian Ringgit with a balance of RM215,050.
105. The Tribunal asked Patrick to provide bank statements to show he met these payments, and he said he would have to find them as it was so long ago. Mr Sam had previously provided, as a part of the notice of intention to cancel and in submissions to the Tribunal, statements from Patrick’s personal bank account and the mortgage on the family home which showed progressive drawing down of the mortgage over time. Some payments were made to this account after the date of the visa application, being from August 2013, but the provenance of these funds is not apparent, and the customer reference number is different to Patrick’s customer reference number. The account from which money is transferred to the mortgage in 2013 is not an account provided by Patrick. The accounts for the period 23 June 2016 to 27 September 2016 show transfers into the mortgage from an account held jointly by Patrick and Nicky.
106. The Tribunal is satisfied on the basis of the bank statements that payments in 2016 came from an account held by Patrick and Nicky. There is little evidence that at the time of the visa application on 22 February 2013 that Patrick was meeting these costs. This is consistent with Mr Sam’s oral evidence that he met Zhi Xiong’s costs.
Farm
107. Mr Sam denied owning any other property in Malaysia. On being asked about the farm, he said that was rented from the government at RM140 per year. After he came to Australia he asked a friend to pay for one year. When he visited Australia in 2012 he asked his friend to look after the farm and to give his sister-in-law the vegetables and fruit. When he came to Australia he heard the government was taking the farm back and has since taken the farm back. On being asked if his sister-in-law operated the farm, he said yes and said this was not for long. On being directly asked if this was an incentive to look after Zhi Xiong he said yes. He did have a farm, but that was only rented from the government for RM140 per year. After he came to Australia he asked his friend to pay the rent, as they only had the farm for one year after they left.
108. In the statutory declaration of Siew Foong Lam, Mr Sam’s sister-in-law, dated 26 September 2016, Ms Siew Foong Lam states that as an extra incentive for her to look after Zhi Xiong, the lease of the farm was transferred to her as well as all the farm equipment so that she could operate the farm and live off the proceeds.
Ms Lam and Mr Sam’s pension in Malaysia
109. According to Patrick, at the time Mr Sam retired, he had RM400,000 in his pension fund (AUD136,400). This has been withdrawn and the proceeds used.
110. When asked if his wife was entitled to a pension, Mr Sam said she was not, however after being pointed to a statement of Ms Lam’s pension said she did have one, but that she could not withdraw from it until she was 55 years old.
Commercial property in Malaysia
111. Mr Sam said he did not have any other property in Malaysia, however it became apparent he owns a share of a commercial building in Malaysia.
112. Patrick stated a property is owned in the names of his parents, himself and his eldest sister (Nicky). This was refinanced in 2017 and a loan for RM1.1 million was taken out against this property. Patrick said the proceeds of the loan were used for a payment for his house and to repay the debts of the business in Australia. Originally this property was owned by his mother and his uncle jointly with his father and his aunt. This property was transferred to his parents in 2013 or 2014 as a result of the business partnership being dissolved, and then in 2015 was transferred into the names of his parents, Patrick and Nicky.
Loans for properties in Australia
113. Nicky has purchased a property in Australia, and Patrick provided the certificate of title for this property together with a copy of Nicky’s bank account showing transfers from Mr Sam of AUD34,481 on 10 December 2012 with the handwritten annotation “funds from dad”. A withdrawal seven days later is marked “payment for house deposit”.
114. A certificate of title is provided for the property with Patrick and Yi Ling as joint tenants. A bank account in Patrick’s name shows transfers from Mr Sam totalling AUD85,000 on 24 June 2016.
Business in Australia
115. Patrick states that after arriving in Australia his father started to complain about having nothing to do, so he decided to purchase a restaurant business for them, and purchased a business on 12 February 2015 for AUD230,000. He provided a copy of a sale agreement with a gross purchase price of AUD180,000 for a restaurant trading under the name Noble House Restaurant. He established a company called Samarium Group Pty Ltd to purchase and operate the business. While the directors were initially Patrick and Mr Sam, Patrick retired as a director and Nicky was appointed in his place so his creditworthiness would not be affected. The directorships and shareholding are reflected in an ASIC company extract provided.
116. Patrick states that if the visa is cancelled he will have to sell the business at a loss. The business has, in fact, since been closed. According to Patrick the business was not doing well and the landlord regained possession of the property as they had not paid the rent.
Financial support for Zhi Xiong
117. Mr Sam said that his sister-in-law started living with them in 2012 when he was about to retire so she could become familiar with Zhi Xiong. Until the time they left to come to Australia, Zhi Xiong has lived in the same property with his parents.
118. Mr Sam said Zhi Xiong has always lived with him and that he and his son (Patrick) were paying the expenses, but that it was not always the case that his son would pay expenses, only occasionally, because his son is not rich. He said his son provided money one or two times a year and not much. Mr Sam was asked if Zhi Xiong was financially dependent on him, and Mr Sam answered yes.
119. Patrick’s statutory declaration lists the costs of renovations being AUD10,000 and the purchase of the car being AUD50,000. He provided copies of documents he states to be invoices in relation to the renovations. One of these is not in English, and no translation has been provided. Another dated 27/9/14, has an English title “Renovation Work” but is otherwise not in English for a total of RM30,692. One has various items invoiced, such as flexible hose, tape and various PVC pipes for a total of RM132.70.
120. An untranslated document was provided that is stated to be for the registration of the car. This contains Patrick’s name (Sam Che Hong) and what appears to be a description of the car, but it is otherwise not evident whether or not this is a car registration. Statements from Patrick’s HSBC account provided by Mr Sam note payments of RM1,500 with the handwritten annotation “car”. This appears opposite an entry that is “Public Bank Hire Purchase”.
121. Patrick’s HSBC bank account statements also had handwritten annotations such as “money to maid wages”, “money to dad”, “money for mom” and “money for parents”. These withdrawals are immediately preceded by transfers into the account from another account, and the origin of these funds is unclear. The statements provided are all after the date of the visa application.
122. Mr Sam’s oral evidence was that he arranged for renovations to the house and the purchase of the car, as well as asking his sister-in-law to care for Zhi Xiong and arranging a nanny from Indonesia. He said he did not owe money on the house but borrowed money to renovate the house and purchase a car.
123. The Tribunal relies on Mr Sam’s oral evidence to find that Patrick contributed to household finances, but this was only occasionally and not in large amounts. This is not contradicted by documentary evidence before the Tribunal from the time of the visa application, although mortgage payments have been made by an account held by Patrick and Nicky since.
124. The Tribunal does not accept Patrick and Nicky did not intentionally mislead the Department by providing misleading information and instructions to the migration agent. It does not accept they genuinely believed that Zhi Xiong was dependent on Patrick for the following reasons:
·     The advice of the migration agent at first instance was that Zhi Xiong would ordinarily be viewed as a dependent of Mr Sam.
·     Yi Ling was declared as a dependent child over 18 years, showing some recognition that a child who was over 18 could be regarded as a dependent.
·     Mr Sam states that he financially supported Zhi Xiong with only occasional support from his children. The Tribunal considers his direct oral evidence interpreted from his first language preferable to a translated statutory declaration, particularly where Patrick acted as the interpreter.
·     Mr Sam gave evidence he paid the expenses for the household, with food expenses met by the business. His stated income was ‘more or less’ sufficient to meet household expenses.
·     The loan against the house was obtained only shortly before Mr Sam came to Australia. The money for the renovations and car came from a loan on a house that was previously fully owned by Mr Sam and transferred into Patrick’s name to facilitate the loan.
·     There is little independent evidence that Patrick paid expenses for Zhi Xiong that would outweigh the direct oral evidence of Mr Sam.
·     Mr Sam has assisted Nicky, Patrick and Yi Ling to purchase properties in Australia, showing a flow of financial support from Mr Sam to his children, rather than from the children to Mr Sam.
·     The advice from the migration agent, while incorrect, was premised on advice from Patrick and Nicky that Zhi Xiong was dependent on Patrick. The Tribunal does not consider this was an honest belief.
·     The Tribunal considers Mr Sam is the source of financial resources of the family. He paid the household expenses while the family were in Malaysia with only occasional financial assistance from his children. His assets, being the family home and a commercial property in Malaysia, have been used to secure loans for renovations and a car in Malaysia.
·     Mr Sam’s financial resources were used to fund the visa application.
Intention for Zhi Xiong to come to Australia
125. After being granted the visa on 15 December 2014, Ms Lam and Mr Sam entered Australia on 17 January 2015 and departed again on 20 January 2015. They arrived back in Australia on 5 February 2015. The delegate states Ms Lam left Australia less than three days after first arriving and returned to Australia with Zhi Xiong approximately two weeks later. An application was lodged for a Remaining Relative (Residence) visa for Zhi Xiong on 27 February 2015. The delegate found this was evidence that Mr Sam and his family did not intend to migrate without Zhi Xiong.
126. On being asked why he did not declare Zhi Xiong on his visa application, Mr Sam said they initially did not plan to bring him over, and this was why the house was renovated and he bought a car and arranged for his sister-in-law to look after him. He said when he got a passport and it was planned to go back to deal with other issues, he saw Zhi Xiong not eating or sleeping and decided to bring him to Australia for a holiday. He said he had purchased a return ticket for Zhi Xiong at that time. An itinerary was provided showing Ms Lam and Zhi Xiong had booked return flights from on 25 March 2015.
127. Patrick declares the intention at the time Zhi Xiong came to Australia was that he would spend some time in Australia and return to Malaysia on 25 March 2015. He said that given Zhi Xiong’s life expectancy was such that he was not expected to live past his 30s and because it would be easier for him and Nicky to care for their parents in Australia, and as they had retired they decided his parents and Yi Ling would migrate but Zhi Xiong would remain in Malaysia.
128. Patrick declares that at the time his parents arrived, they were aware through reports from the maid and his aunt that Zhi Xiong was experiencing difficulty eating and sleeping, and when he arrived in Australia this improved considerably. Patrick states it was apparent Zhi Xiong would be more comfortable in Australia, and his parents thought it would be better than sending him home to Malaysia. Patrick declares that this was why the family applied for a remaining relative visa as, despite their efforts, circumstances changed after he came to visit Australia.
129. Ms Siew Foong Lam provided a statutory declaration sworn 26 September 2016. She declares that she started spending weekends in about 2008 and would spend time with Zhi Xiong, and began to be able to understand what he was communicating to her. She assisted with his physical care. In about 2012 she separated from her husband and started staying at Mr Sam’s house on a full-time basis. She declares that it was decided that the family would not take Zhi Xiong to Australia, and Ms Lam asked whether she would care for him. She was living in the house rent free and without having to pay household expenses. Patrick would pay for the maid and give her some pocket money, and she would be expected to care for Zhi Xiong as she had in the past. As an extra incentive, she said the lease for the farm and all the farm equipment was transferred to her.
130. A statutory declaration from Ms Siew Foong Lam states:
In or about January 2015, Ka Chong Siew Choo and Elaine permanently migrated to Australia (as their visas had been granted).
It was only at that time that Zhi Xiong reacted negatively to his parents’ travelling (this had not been apparent earlier). I think he knew on the inside that his parents had left him permanently.
Even though he never ate much, it became a struggle to feed him and he would not sleep at nights.
…
About a month or so later, Patrick and Siew Choo returned to Malaysia to take Zhi Xiong to Australia to celebrate Chinese New Year together (as it was customary for families to have a yearly reunion)The intention was that Zhi Xiong would spend about a month in Australia and the he would be returned to Malaysia to continue with the arrangement that was in place.
However, in about mid February 2015, Patrick called me to let me know that it seemed to the family that Zhi Xiong would be more comfortable remaining in Australia with them and they were going to undertake some visa process to try and get Zhi Xiong to stay there.

131. Siew Foong Lam’s recollection is faulty in that it was not “about a month or so later” before Ms Lam returned to Malaysia, it was three days. It is difficult to see how Zhi Xiong’s circumstances could have deteriorated to such an extent in the three days his mother was absent. Siew Foong Lam states Zhi Xiong had not previously reacted negatively to his parents’ travelling.
132. It is submitted by the representative that Zhi Xiong subsequently lodging an application for an onshore Remaining Relative visa suggests that the family did not intentionally mislead the Department about the dependency of Zhi Xiong, as it would be illogical to lodge this visa application as it would trigger an inquiry into the circumstances of the family. The Tribunal does not consider that lodging a visa application for Zhi Xiong sheds any light on the intentions of the family at that time.

133. The timing of Zhi Xiong’s arrival in Australia, the return of Mr Sam and Ms Lam to Malaysia three days after arriving, and Siew Foong Lam’s statutory declaration do not support the stated intention for Zhi Xiong to remain in Malaysia. However, the Tribunal accepts there were some renovations to the house and a car was purchased, and the Tribunal accepts that Mr Sam did not intend Zhi Xiong to relocate to Australia on the grant of the visa.
The present circumstances of the visa holder
134. Mr Sam is in Australia. Zhi Xiong is also in Australia. Zhi Xiong applied for a remaining relative visa, and his application has been refused. Arrangements will be required as a result for his return to Malaysia, including accommodation and care, if he is not granted a visa.
135. In or about June 2015, the family moved to a property owned by Nicky. Mr Sam contributed AUD44,000 for the deposit, as it would not otherwise be possible for Nicky to purchase the property based on her income.
136. Another property was purchased with Patrick and Yi Ling’s names as joint tenants, with Mr Sam contributing AUD84,000.
137. At the time of the response of the notice of intention to cancel the visa, Patrick was employed by H&R Block tax accountants as a Business Services Manager. He states he is now running a cleaning and property maintenance business.
138. The house in Malaysia has been sold, and Patrick says the proceeds were used to pay debts from the business that was purchased in Australia. This means the family has no residence in Malaysia. The family has two properties in Australia.
139. On being asked about his present circumstances, Mr Sam said if he can keep the visa, that is fine, but otherwise he will need the money back that he paid for the visa, as he has been cheated by the government.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
140. The obligations in Subdivision C of Division 3 of Part 2 contain the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
141. Mr Sam did not provide particulars of an incorrect answer, including after Zhi Xiong arrived in Australia. The relationship between Zhi Xiong and Mr Sam was obtained by the Department matching the address in Malaysia.
Any other instances of non-compliance by the visa holder known to the Minister
142. There are no other instances of non-compliance that are before the Tribunal.
The time that has elapsed since the non-compliance
143. Mr Sam applied for the visa on 22 February 2013 and arrived in Australia on 17 January 2015. The notice of intention to cancel his visa was issued on 14 September 2016, and his visa was cancelled on 28 February 2017.
144. While Mr Sam has been in Australia for over five years, and the time since he completed his visa application is over seven years, he has been on notice from approximately 18 months after his arrival in Australia that cancellation of his visa was being considered.
145. The Tribunal places some weight on the period of time he has been in Australia, but this is limited by the relatively short period he was in Australia before being put on notice that his visa may be cancelled.
Any breaches of the law since the non-compliance and the seriousness of those breaches
146. There is nothing before the Tribunal to indicate Mr Sam has subsequently breached the law.
Any contribution made by the holder to the community
147. Mr Sam acknowledges he has not made a contribution to the community, however stated this was because he is not allowed to work.
B. OTHER FACTORS
148. 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.
149. The relevant policy is set out in the Department’s Procedures 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 are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
150. If the visa is cancelled, Mr Sam, Ms Lam and Yi Ling will need to apply for another visa or leave Australia. If they did neither, they would be liable to be detained and removed from Australia.
151. If Mr Sam’s visa is cancelled, there are only certain types of visa he, Ms Lam or Yi Ling may apply for from within the migration zone (s.48 of the Act and r.2.12 of the Regulations).
152. The practical effect of cancelling the visa is likely to be that Mr Sam, Ms Lam and Yi Ling will be required to return, at least temporarily, to Malaysia. As they state they have sold their home, they will need to re-establish themselves in Malaysia.
Whether there would be consequential cancellations under s.140
153. If Mr Sam’s visa is cancelled the visas of Ms Lam and Yi Ling will be cancelled.
154. Yi Ling provided a statutory declaration dated 28 September 2016 with the response to the notice of intention to cancel the visa and declared that before coming to Australia she was studying a twinning course with Wollongong University at INTI College in Malaysia. She states that when she was young her parents were always working, and she left home at age 6 to live with her aunt in Kuala Lumpur to be near school. When she learned they were going to migrate to Australia she was excited as it meant she could complete her university education at a much-reduced cost. Yi Ling declares she arrived in Australia with her parents in January 2015 and has lived here from this time. She had previously travelled to Australia from 2013 to 2015 to spend time in Australia and visited the University, took public transport and got to know Perth. Therefore, she states she has been in Australia from 2013, a period of nearly 4 years at the time of her declaration.
155. Yi Ling declares that arriving in Australia, she could get her course credited and transferred to the University of Western Australia.
156. Before coming to Australia she had not spent much time with Patrick and Nicky because of the age gap and had never felt close to her parents, however they have since all formed a strong bond and she would be devastated if she were to lose those bonds now. She has made close friends at University and is afraid she will lose those bonds if she returns to Malaysia. At the time of her statutory declaration, Yi Ling provided a letter confirming her place in a Bachelor of Commerce and her part-time employment contract as a retail sales associate.
157. Since then, Yi Ling has failed several units, and has transferred her course from a Bachelor of Commerce to Human Resources. She is now studying part-time. She said she had found it hard to get through her course due to the difficulties the family has had, and that cancellation of her visa will make it difficult to complete her course. Given the family has been on notice of the cancellation since 2016, and at that time she submitted she only had one year remaining of her course, and while she may have experienced difficulty in progressing through the course, she could have completed her studies in this time.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child
158. There is nothing before the Tribunal to indicate any international obligations would be breached as a result of the cancellation. In particular, no non-refoulement issues have been raised, nor have any children been identified whose interests would be affected. All of Mr Sam’s children are adults.
Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members
159. Mr Sam submits if his visa is cancelled, the money spent on the visa should be returned to the family. As this is a contributory parent visa, the costs for the visa were approximately AUD150,000. The family submits that the funds from Mr Sam’s pension have been used, the house in Malaysia has been sold, the business in Australia has resulted in a loss and the commercial property in Malaysia is mortgaged to a value greater than it’s worth. No documentation was provided of the sale of the house in Malaysia. Nevertheless, the Tribunal accepts that cancelling the visa will have a large financial impact on all family members. However the family is not without financial resources, and holds properties in the names of the children in Australia, and Mr Sam has contributed financially to the purchase of these properties.
160. Patrick submits he had a distant relationship with his parents when growing up as they were constantly at work before he moved away for his schooling and lived with an aunt. He states he wants to make up for lost time with his parents, having not lived with them for over 25 years. He states if anything happened to Zhi Xiong they would struggle to pay for his medical bills under the Malaysian system, and it is more affordable for them if they are earning money in Australia.
161. Patrick states that when looking at options for Mr Sam, Ms Lam and Yi Ling to migrate to Australia they had to decide whether to wait two years and pay AUD150,000. In looking at the international student fees for Yi Ling, it was decided that it would be a significant saving if Yi Ling was a permanent resident.
162. Patrick states that he and Nicky have incurred over AUD1.5 million in debt. He lists the visa costs, the purchase of the business, the purchase of two properties in Australia, renovation to the property in Malaysia, the purchase of a car in Malaysia, his and Nicky’s Malaysian government student loans, as well as his and Nicky’s personal loans. These debts have not all been incurred as a result of the visa application, as it includes Patrick and Nicky’s student loans and personal loans as well as debt on properties purchased in their names. He states if the visas are cancelled it is likely he would become bankrupt. Patrick states all they have left was RM10,000 of Mr Sam’s pension, his mother’s pension, the house in Malaysia valued at RM300,000 with a loan of RM216,000. According to Mr Sam the house has since been sold for RM560,000.
163. Patrick attached a copy of Nicky’s bank account in which there is a transfer from Patrick of AUD126,700 on 11 December 2013 which is withdrawn on the next day, and a transfer of AUD37,302 from Kam Ching Sam on 31 March 2014. The deposit that Patrick refers to as being a loan from Mr Sam’s brother for the visa is deposited after the date the visa application was lodged, which was 22 February 2013.
164. Patrick states if his parents and Yi Ling return to Malaysia, he would have to send money to Malaysia to help them, which he cannot afford. He, Yi Ling and Nicky would have to spend more time in Malaysia to help look after his parents as they are getting older and less physically able.
165. Nicky provided a statutory declaration in which she also states that having lived apart from her family for so long, the last four years has given them an opportunity to reconnect and create strong bonds and she wants to spend more quality time with family. As her parents contributed to the purchase of her investment property, their retirement money is linked to her finances. If her parents return to Malaysia, she and Patrick would have to support them as they would have no source of income. Yi Ling would need to continue her studies as an international student at greater cost, and she and Patrick would be expected to help provide Yi Ling with financial support in addition to continued financial support for Zhi Xiong.
166. Nicky also states the cancellation of the visas would result in the sale of the restaurant business at a loss.
167. Nicky states the visa cancellation will mean that she and Patrick will have to consider relocating to Malaysia to care for their aging parents and will have to resign from their jobs. She states as she is a forensic laboratory technician and the demand for this profession is low in Malaysia, it is difficult to get a job. She states she may not be able to get a job in her field of study. Working long hours and the hectic lifestyle in Malaysia would not suit her as she has lived in Perth for a long period. She states moving back to Malaysia could lead to her having depression because she could not cope with the pressure on her. She also states she may have to travel to Australia to maintain her residency and be unable to find stability in life.
168. Nicky provided a statement of service for her current employment with Chem Centre as a Laboratory technician in the forensic science laboratory, a statement of her home loan dated 20 May 2015 detailing a loan of AUD394,745 with repayments of AUD945.78 per fortnight. She provided an untranslated document which is stated in her statutory declaration to be a statement of her student loan from the Malaysian government.
169. The Tribunal accepts that cancelling visa will cause financial hardship for the family, and that if Patrick and Nicky remain in Australia this will reduce the opportunity for personal contact and result in some emotional hardship.
CONCLUSION
170. The Tribunal has found, and Mr Sam concedes, that there was non-compliance in the way described in the notice given under s.107 of the Act.
171. Mr Sam, Ms Lam and Yi Ling were not eligible for the visa at the time they applied for the visa, or at any point in time after it was granted, and this weighs heavily in favour of cancelling the visa.
172. The purpose of having health criteria that applies to non-migrating family members is to address circumstances where the remaining family member comes to Australia. This is what has, in fact, happened in this case. This also weighs in favour of cancelling the visa.
173. The Tribunal does not accept that at the time of the visa application, Zhi Xiong was dependent on Patrick or Nicky, or both Patrick and Nicky together. It does not accept that they believed that Zhi Xiong was dependent on them. The evidence before the Tribunal is that Mr Sam provided financial support for Zhi Xiong with only occasional and sporadic contributions from other family members. Patrick and Nicky advised the migration agent that Zhi Xiong was dependent on Patrick, or a combination of Patrick and Nicky, when this was not the case.
174. Section 100 of the Act specifies that for the purposes of the 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 it was incorrect. Mr Sam concedes the information was incorrect, but argues that this should be understood in the context of his inability to read and write in English. Mr Sam gave control of his assets to Patrick and Patrick was acting on his behalf in instructing the agent. While the Tribunal accepts this may be in accord with cultural norms, it has not been to Mr Sam’s advantage. The Tribunal does not consider Mr Sam’s English language skills or his delegation of these matters to family members outweighs the responsibility of applicants to provide correct information or that it outweighs his ineligibility for the visa.
175. The submissions of the representative also refer to the difficulty in understanding the concept of dependent child in the Regulations. While the Tribunal appreciates that migration law is not readily accessible to Mr Sam who does not have English language skills, the migration agent did advise that ordinarily Zhi Xiong would be dependent on Mr Sam. It was only after this that Patrick advised the agent that Zhi Xiong was dependent on him. Further, it is the responsibility of an applicant to apply the law, and if there is any uncertainty to disclose their circumstances to the Department.
176. Mr Sam, Ms Lam and Yi Ling have made a significant payment for the visas, which is estimated to be in excess of AUD150,000. The family chose to apply for contributory parent visas as they considered the cost would be offset by the reduction in student fees for Yi Ling. The cost of the visa and the financial impact on each of the family members if the visa is cancelled weighs in favour of not cancelling the visa.
177. The family will face financial hardship if the visa is cancelled, and if as a result Mr Sam, Ms Lam and Yi Ling are required to return and re-establish themselves in Malaysia. Patrick and Nicky will also face financial hardship in supporting the family unit. However the family are not without financial resources, with properties in Australia being purchased in Patrick and Yi Ling’s name as well as a property held by Nicky. Mr Sam has made financial contributions to these properties.
178. Mr Sam, Ms Lam and Yi Ling have been in Australia for a significant period of time, however for much of this time have been on notice of the potential cancellation of their visas. There are no significant contributions that have been made to the Australian community, however Yi Ling states she has formed friendships with others.
179. Mr Sam and Ms Lam’s children say they did not have the opportunity to develop close family ties while the family were in Malaysia, and a consequence of cancelling the visa will be to the detriment of these ties.
180. While Tribunal acknowledges there are factors that weigh against cancelling the visa it does not consider these factors outweigh the significance of their ineligibility for the grant of the visa, the undermining of the purpose of the provisions, and the misleading instructions provided about the dependency of Zhi Xiong.
DECISION
181. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 143 (Contributory Parent) visa.
182. The Tribunal has no jurisdiction with respect to the other applicants.
Kate Millar
Senior Member

ATTACHMENT 1 – 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.

ATTACHMENT 2 –Migration Regulations 1994 (extract)
Reg 2.41 Whether to cancel visa - incorrect information or bogus document (Act, 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) 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;

(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

Note: Under s109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.
ATTACHMENT 3 – Table of Documents

Dated

Document description

30/10/2017

AAT Application for Review Submission

23/11/2017

AAT Application for Review Submission (No. 2) with the following annexures:

Undated

·     Draft Transcript of Hearing held 11 November 2017

08/11/2017

·     Letter from Dr Akinyemi Freeman providing Ka Chong Sam a referral to Dr Teck Yew

22/04/2014

·     Document stated to be Ka Chong Sam’s 2013 Malaysian Tax Return (untranslated)

15/08/2014

·     Letter of Undertaking between the applicant’s wife and a purchaser for the sale of the land in which the Ka Chong Sam’s restaurant business operated from, under the title of HSD 13925 No. PT 17222, Mukim Bentong, Daerah Bentong, Negeri Pahang

22/08/2013 – 22/01/2014

·     Bank Records of Che Hong Sam

Undated

·     Zhi Xiong Sam’s remaining relative application, unsigned

17/12/2017

AAT Application for Review Submission (No. 3) with the following annexures:

14/12/2017

·     Medical Certificate issued by Dr Teck Yew, Aged Care Specialist of Metropolitan Geriatric Medicine Services

9/06/2005

·     Patrick’s student visa grant

Undated or illegible

·     Money transfer from Mrs Lam to Sutilah, passport details and untranslated document of “Sutliah”

1/12/2017

Patrick’s movement details

28/09/2016

Statutory Declaration of Patrick with the following annexures:

Undated

·     Patrick’s Visa Grant

27/09/2016

·     Document stated to be Patrick’s Malaysian Government Student Loan Statement (untranslated)

27/09/2016

·     Loan Statement for House in Malaysia

9/12/2014 – 30/04/2015

·     Bank Statement showing funds from Ka Chong Sam to Yoke Kwan Sam (also known as Nicky Sam) (“Nicky”) for the deposit on the purchase of 7/17 Gerring Court, Rivervale

10/09/2013

·     Documents stated to be Car Registration Papers for Honda CRV purchased by Patrick in Malaysia (not in English)

Undated

·     Bundle of copies of invoices in relation to renovation works done in Malaysia

7/02/2015

·     Agreement for the Sale of a Business as a Going Concern in relation to Kenko Home Cuisine restaurant

16/09/2016

·     Company search for Samarium Group Pty Ltd

16/09/2016

·     Title search for 7/17 Gerring Court, Rivervale

1/11/2012 – 1/04/2013

·     Nicky’s bank statement showing funds from Ka Chong Sam paid towards the deposit of 7/17 Gerring Court

16/09/2016

·     Title search for 13 Contorta Road, Canning Vale

7/06/2016 – 07/07/2016

·     Nicky’s bank statement showing funds from Ka Chong Sam paid towards the deposit of 13 Contorta Road

27/09/2016

·     Patrick’s loan statement for 13 Contorta Road

5/02/2015 – 25/03/2015

·     Return flight itinerary for Zhi Xiong Sam and Siew Choo Lam

28/09/2016

Nicky’s Statutory Declaration with the following annexures:

Undated

·     Nicky’s passport and visa grant

Undated

·     Nicky’s employment statement from ChemCentre

20/05/2015

·     Nicky’s ANZ Loan Summary for 7/17 Gerring Court

28/09/2016

Ka Chang Sam’s Statutory Declaration with the following annexures:

2012, 2006, 2007, 2005 (in order)

·     Bundle copies of Ka Chong Sam’s tax returns

27/09/2016

·     Document stated to be Siew Choo Lam’s pension statement dated 27 September 2016 (not in English)

28/09/2016

Siew Choo Lam’s Statutory Declaration

28/09/2016

Yi Ling Sam (also known as Elaine Sam’s (“Elaine”) Statutory Declaration with the following annexures:

3/02/2015

·     Elaine’s enrolment record

13/10/2013

·     Elaine’s employment contract with Optus dated 13 October 2015

26/09/2016

Lam Siew Foong’s Affidavit

17/09/2016

Richard Wah Chooi Tan’s Statutory Declaration

27/09/2016

Document stated to be Ka Chong Sam’s pension Statement (not in English)

27/09/2016

Document stated to be Nicky’s Malaysian Government Student Loan statement showing an outstanding balance of RM19,353.68 (not in English)

10/03/2016

Patrick’s employment contract with H&R Block

[2020] AATA 3492

26 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Reliance

Statutory Construction

Jurisdiction

Dated	Document description
30/10/2017	AAT Application for Review Submission
23/11/2017	AAT Application for Review Submission (No. 2) with the following annexures:
Undated	· Draft Transcript of Hearing held 11 November 2017
08/11/2017	· Letter from Dr Akinyemi Freeman providing Ka Chong Sam a referral to Dr Teck Yew
22/04/2014	· Document stated to be Ka Chong Sam’s 2013 Malaysian Tax Return (untranslated)
15/08/2014	· Letter of Undertaking between the applicant’s wife and a purchaser for the sale of the land in which the Ka Chong Sam’s restaurant business operated from, under the title of HSD 13925 No. PT 17222, Mukim Bentong, Daerah Bentong, Negeri Pahang
22/08/2013 – 22/01/2014	· Bank Records of Che Hong Sam
Undated	· Zhi Xiong Sam’s remaining relative application, unsigned
17/12/2017	AAT Application for Review Submission (No. 3) with the following annexures:
14/12/2017	· Medical Certificate issued by Dr Teck Yew, Aged Care Specialist of Metropolitan Geriatric Medicine Services
9/06/2005	· Patrick’s student visa grant
Undated or illegible	· Money transfer from Mrs Lam to Sutilah, passport details and untranslated document of “Sutliah”
1/12/2017	Patrick’s movement details
28/09/2016	Statutory Declaration of Patrick with the following annexures:
Undated	· Patrick’s Visa Grant
27/09/2016	· Document stated to be Patrick’s Malaysian Government Student Loan Statement (untranslated)
27/09/2016	· Loan Statement for House in Malaysia
9/12/2014 – 30/04/2015	· Bank Statement showing funds from Ka Chong Sam to Yoke Kwan Sam (also known as Nicky Sam) (“Nicky”) for the deposit on the purchase of 7/17 Gerring Court, Rivervale
10/09/2013	· Documents stated to be Car Registration Papers for Honda CRV purchased by Patrick in Malaysia (not in English)
Undated	· Bundle of copies of invoices in relation to renovation works done in Malaysia
7/02/2015	· Agreement for the Sale of a Business as a Going Concern in relation to Kenko Home Cuisine restaurant
16/09/2016	· Company search for Samarium Group Pty Ltd
16/09/2016	· Title search for 7/17 Gerring Court, Rivervale
1/11/2012 – 1/04/2013	· Nicky’s bank statement showing funds from Ka Chong Sam paid towards the deposit of 7/17 Gerring Court
16/09/2016	· Title search for 13 Contorta Road, Canning Vale
7/06/2016 – 07/07/2016	· Nicky’s bank statement showing funds from Ka Chong Sam paid towards the deposit of 13 Contorta Road
27/09/2016	· Patrick’s loan statement for 13 Contorta Road
5/02/2015 – 25/03/2015	· Return flight itinerary for Zhi Xiong Sam and Siew Choo Lam
28/09/2016	Nicky’s Statutory Declaration with the following annexures:
Undated	· Nicky’s passport and visa grant
Undated	· Nicky’s employment statement from ChemCentre
20/05/2015	· Nicky’s ANZ Loan Summary for 7/17 Gerring Court
28/09/2016	Ka Chang Sam’s Statutory Declaration with the following annexures:
2012, 2006, 2007, 2005 (in order)	· Bundle copies of Ka Chong Sam’s tax returns
27/09/2016	· Document stated to be Siew Choo Lam’s pension statement dated 27 September 2016 (not in English)
28/09/2016	Siew Choo Lam’s Statutory Declaration
28/09/2016	Yi Ling Sam (also known as Elaine Sam’s (“Elaine”) Statutory Declaration with the following annexures:
3/02/2015	· Elaine’s enrolment record
13/10/2013	· Elaine’s employment contract with Optus dated 13 October 2015
26/09/2016	Lam Siew Foong’s Affidavit
17/09/2016	Richard Wah Chooi Tan’s Statutory Declaration
27/09/2016	Document stated to be Ka Chong Sam’s pension Statement (not in English)
27/09/2016	Document stated to be Nicky’s Malaysian Government Student Loan statement showing an outstanding balance of RM19,353.68 (not in English)
10/03/2016	Patrick’s employment contract with H&R Block