Sam (Migration)

This matter concerned an appeal by Mr Sam against the cancellation of his Contributory Parent (Migrant) (Class CA) visa, Subclass 143. The dispute arose from the Department's decision to cancel Mr Sam's visa on the grounds that it was granted based on incorrect information, specifically the non-disclosure of his dependent adult son, Zhi Xiong. The case was heard in the Federal Circuit Court.

The primary legal issue before the Court was whether the decision to grant Mr Sam's visa was based wholly or partly on incorrect information or a bogus document, as contemplated by migration regulations. This required the Court to determine if Zhi Xiong was a "dependent child" of Mr Sam for the purposes of the visa application, and if so, whether his non-disclosure meant that Mr Sam, and other family members granted visas, did not meet the relevant criteria for the visa at the time of its grant. The Court also considered the applicant's intention and reliance on a migration agent in providing information for the visa application.

The Court reasoned that Zhi Xiong, despite being over 18, qualified as a dependent child under the definition in Regulation 1.03 because he was incapacitated for work due to partial loss of bodily or mental functions. This was supported by evidence of his cognitive decline. The Court accepted that if Zhi Xiong had been disclosed as a dependent child, he would not have met the health criteria (PIC 4005), and consequently, Mr Sam and other family members would not have met the secondary criteria for the visa. Therefore, the decision to grant the visas was based on incorrect information, and the cancellation was affirmed. The Court noted that while Mr Sam relied on a migration agent and had limited English proficiency, his oral evidence contradicted the assertion that Zhi Xiong was not financially dependent, further complicating the claim of no intention to mislead.