Seng (Migration)

[2023] AATA 1219

Seng (Migration) [2023] AATA 1219 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kim Chou Seng

REPRESENTATIVE:  Mr Anthony Silva

CASE NUMBER:  2212520

HOME AFFAIRS REFERENCE(S):          BCC2020/2382859

MEMBER:Kira Raif

DATE:2 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2023 at 1:51pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in the visa application – family composition – Australian citizen child not declared in previous visa applications – genuine spousal relationship with the sponsor – re-marriage to the child’s father – family health issues – best interests of the children – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 48, 101-105, 107, 109, 140
Migration Regulations 1994, r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Cambodia, born in July 1988. She was granted the Partner visa in September 2016 and a Resident Return visa (RRV) in September 2020. In May 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant  seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The applicant was represented in relation to the review. The applicant’s representative was unable to attend the hearing but the applicant confirmed to the Tribunal that she did not wish to adjourn the hearing and that she wanted to proceed with the hearing in the absence of her representative. In the circumstances, the Tribunal granted the applicant and her representative time to provide post-hearing submissions.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

7. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

8. 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 104 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Partner visa on 21 June 2012. She was sponsored in that application by Mr Sokha Te, who claimed to be her spouse.

10. When completing the application form 47SP, in response to Question 38 ‘do you have any children?’, the applicant stated ‘no’.

11. The applicant was granted the Temporary Partner visa on 25 June 2012. She provided additional documents in support of her application for the Subclass 801 visa. This included statutory declarations from the applicant and Mr Te which do not mention the existence of the child. The applicant completed a ‘checklist for partner processing’ and in response to a question about immediate family members including children, the applicant stated ‘n/a’. 

12. The applicant’s application for the Subclass 801 visa was refused on 12 August 2015 as the delegate was not satisfied the applicant and the sponsor continued to have a mutual commitment to the relationship. The applicant appealed that decision to the Tribunal and on 30 August 2016 the AAT remitted the matter to the Department. The primary decision record quotes from the Tribunal’s decision record that the applicant and sponsor do not have any joint responsibility for the care and support of children. The applicant was granted the Permanent Partner Subclass 801 visa on 26 September 2016.

13. The primary decision record indicates that in December 2017 the applicant made the application for the Australian citizenship which included her child, born in October 2013. She subsequently admitted in a conversation with an Immigration officer that the sponsor Mr Te was not the father of that child. The applicant subsequently withdrew the child’s application  for citizenship. In a subsequent statement to the Department, the applicant explained that due to marital issues, she had a one-off encounter with Mr Srun Taing and conceived a child as a result. She claims to have had no contact with Mr Taing since that time. She stated that she did not declare the existence of the child in the Partner visa application because the sponsor did not want to and she felt embarrassed about her ‘one day relationship’ with Mr Taing. The applicant later provided a DNA test report confirming Mr Taing to be the father of her child and the child was recognised as an Australian citizen from his birth in October 2013.

14. In her response to the NOICC the applicant admits that she failed to declare the birth of her child when seeking the Partner visa. In her written submissions to the Tribunal the applicant also concedes that she failed to declare the child in her visa application because Mr Te did not want to and she felt embarrassed about her ‘one day relationship’ with Mr Taing. The applicant concedes that she failed to comply with s 104 of the Act. In oral evidence the applicant also confirms that she did not tell the Department about the child because her husband was not happy about the child not being his.

15. The Tribunal finds that when making the application, the applicant indicated that she had no children. However, it is not in dispute that her son was born in October 2013. At that time the applicant’s circumstances had changed so that an answer on the application form became incorrect. The Tribunal finds that the applicant failed to inform Immigration in writing about the changes in her circumstances. The Tribunal finds that the applicant did not comply with

    
    

    s 104 of the Act. The Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.

    Should the visa be cancelled?

16. 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).

17. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. They are:

    The correct information

18. The correct information is that the applicant had a child who was not identified in her application.

    The content of the genuine document (if any)

19. This is not relevant in the present case.

    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

20. The decision to grant the RRV was not based on incorrect information.

21. The visa in question is the Partner visa. The applicant’s eligibility for that visa was dependent on the delegate’s satisfaction that the applicant had a genuine, mutually committed spousal relationship with the sponsor that was to the exclusion of all others. Having a child born to another person would have been highly relevant to the assessment whether the applicant was the spouse of the sponsor and whether their relationship was mutually committed and to the exclusion of all others.

22. The Tribunal finds that the decision to grant the applicant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

23. In her declaration in response to the NOICC and evidence to the Tribunal the applicant stated that she grew up in a poor family and witnessed family violence perpetrated by her father. She states that at the age of 8 she was sent to live with her uncle whose family treated her ‘like nobody’. She returned to live with her mother and brother after finishing Year 12. The applicant describes her difficult upbringing, stating that she grew up with the idea that one has to lie sometimes to survive. The applicant states that she had no support or guidance.

24. The applicant states in a further declaration that after her arrival in Australia in March 2012 her relationship with her husband was good but after several months, he often ignored her, went drinking with his friends and came home late and was working long hours. She felt lonely and depressed. The applicant states that she met Srun, had some drinks together in early 2013 and had intercourse in the car before she went home. She later realised she was pregnant but did not think her husband was the father of the child. She told her husband about the pregnancy and he was angry. Her wanted to give her another chance and they continued the relationship but he insisted on an abortion to which she did not agree. She did not want to contact Srun because she wanted to maintain her relationship with her husband and her husband did not want her to include his name on the child’s birth certificate. The applicant states that she did not include her son in her visa application because her husband did not want her to do that and she did not want to make things complicated. She felt embarrassed. The applicant also states that when she applied for her son’s Medicare, she was told that he was already a permanent resident and had a Medicare card, so she also thought that since her son was a permanent resident, he did not need to be included in the visa application.

25. The Tribunal accepts that the applicant’s son was a permanent resident upon birth but the existence of a child from a different relationship was highly relevant to the assessment of the applicant’s relationship with the sponsor (irrespective of the child’s citizenship and visa status) and in the Tribunal’s view, that would have been obvious to the applicant.

26. In oral evidence to the Tribunal the applicant told the Tribunal that her husband was not happy about the child not being his and told her that she did not need to mention the existence of the child and she did not want to upset him. Even if true, the Tribunal does not consider that the husband’s feelings about the child should have been given greater consideration than the applicant’s legal obligations to declare the existence of the child.

27. The applicant also told the Tribunal that she did not mention the child because she was worried that her husband would not accept her relationship with another man and she would be sent back to Cambodia and the family would break up. In the Tribunal’s view, that explanation is nonsensical as the sponsor already knew that she had a child with another person and if that did not lead to the relationship breakdown, the Tribunal does not accept that the disclosure of the child to Immigration would have had that result.

28. The Tribunal is also mindful that the applicant appeared before the first Tribunal in relation to the refusal of her Partner visa. The applicant attended a lengthy hearing and would have been asked many questions about aspects of her relationship. She confirmed to the present Tribunal that she did not mention her child to the first Tribunal. The fact that the existence of that child was not mentioned when discussing details of the couple’s lives indicates that the non-disclosure was deliberate.

29. The applicant told the Tribunal that she did not know the Australian law but the Tribunal does not accept that. As noted above, the applicant would have been extensively questioned by the previous Tribunal about aspects of her life, including her living arrangements and it is impossible that the existence of the child would not have come up, unless the applicant had deliberately withheld that information, whatever her knowledge of the law may have been.

30. The Tribunal does not accept that the applicant failed to mention the child because the child was a permanent resident. As noted above, the Tribunal is of the view that the applicant would have recognised the significance of having a child from a different relationship to the grant of her Partner visa. In the Tribunal’s view, the applicant chose not to mention the child because she believed it would increase her chances of obtaining the visa. That is, the applicant had deliberately withheld information about the birth of her son in order to obtain Australian permanent residence.

    The present circumstances of the visa holder

31. In her declaration in response to the NOICC and in her submissions to the Tribunal the applicant states that she started working with Mr Taing (the father of her son) in August 2020 and since September 2020 they had a de facto relationship, moving in together from April 2021. The applicant confirms that her relationship with Mr Taing started after she was granted the Partner visa and only after she approached him to assist with the child’s citizenship application. The applicant states that she and Mr Taing married in October 2022 and she provided to the Tribunal evidence of her relationship with Mr Taing.

32. The applicant states that their second child was born in August 2021. The applicant refers to her partner’s farming business and their plans to expand the business. In oral evidence the applicant also referred to her engagement in the Khmer community and in helping the community.

33. The applicant states that her eldest child has asthma and her younger child has serious health issues and both children need her care. The applicant states that if they stay together in Australia, they would be able to care for the children. She states that her partner will not be able to care for the children on his own and earn a living at the same time and if she leaves her children, they will grow up disadvantaged and it would be emotionally impossible for her to fathom that possibility.

34. In her submission to the Tribunal the applicant notes that if her visa is cancelled, she would have to leave Australia to make the application for the Subclass 309 visa from Cambodia and she may have to take her child or children with her. She claims this situation would raise compelling and compassionate circumstances. The Tribunal is mindful, however, that the applicant is eligible to make an application for the Partner visa.

35. In her submission to the Tribunal of 30 March 2023 the applicant submits that she cannot make a valid application for a Partner visa onshore because her RRV was granted on the basis of her previously holding a Partner visa, because the breach relates to the Partner visa and the RRV was cancelled under s 109 of the Act. The Tribunal does not accept that submission and is of the view that s 48 does not preclude the applicant from making another valid Partner visa application either onshore or offshore. Following the hearing the applicant informed the Tribunal that she has made a valid application for the Partner visa onshore.

36. The applicant also submits that if she is to apply for another Partner visa, she would be subject to the exclusion period in PIC 4013. The Tribunal is mindful that the exclusion period does not apply in relation to Partner visas.

37. The applicant provided in her response to the NOICC a declaration from Mr Srun Taing who claims that because of his behaviour, the applicant became pregnant with his child while she was married to another person. He states that they were having a relationship when their second child was conceived in late 2020 and started living together as a couple from April 2021. Their second child was born in August 2021. Mr Taing states that he works hard to support the children and is happy to have the applicant as his partner. Mr Taing refers to his children’s poor health and states that he would not be able to take care of the children without his wife and earn enough to support the family. Mr Taing refers to the intention to marry the applicant in late 2022.

38. The applicant provided to the Tribunal a number of family and personal photographs, as well as photographs of her community activities. The applicant also provided evidence regarding her son’s academic progress. The Tribunal accepts that evidence.  

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

39. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations under the Act.

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

40. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

41. The child was born in October 2013 and at that time the applicant’s circumstances changed, giving rise to her obligation to inform the Minister of the change. Around nine-and-a-half years have passed since the non-compliance. The Tribunal acknowledges it is a significant period of time.

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

42. There are no known breaches of the law.

    Any contribution made by the holder to the community

43. The applicant refers to running her farming business (and the family’s intention to expand the business and employ more staff) and states that she contributes to the Australian economy. She pays taxes and wants to continue.

44. The applicant also refers to her responsibility for raising the children, stating that she contributes to the community by presenting a well behaved child.

45. She provided to the Tribunal a letter from the Khmer Community which refers to the family’s contribution to the community and commitment to their children. She also provided evidence of having made a donation to the Cambodian Children’s Fund. The applicant provided to the Tribunal a number of photographs which depict, she claims, her contribution to the Khmer community. The Tribunal accepts that the applicant has contributed to the community.

46. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140

1. There are no persons whose visa would be subject to consequential cancellation.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

2. The applicant states in her response to the NOICC that her eldest child is an Australian citizen and attends Year 3 at the local public school. The applicant states that her son has positive assessments of his attributes and was given a number of certificates. (The applicant provided copies of her son’s schooling records.) The applicant states that her son is doing well but suffers from asthma and needs constant monitoring. She provided to the Tribunal additional evidence relating to her child, including medical records.

3. The applicant states that her second child is also an Australian citizen. He underwent hernia repair surgery in October 2021 and needs constant care. The applicant states that the children need constant care from their mother and her partner would not be able to care for the children and look after the business if she is to leave Australia. The applicant submits that both are Australian citizens and are entitled to grow up in Australia with proper medical facilities, noting the lack of basic medical facilities in Cambodia.

4. In her submission to the delegate the applicant provided a number of medical reports relating to her children. The Tribunal accepts the evidence in these reports. Importantly, the Tribunal acknowledges the statement from Dr Ly, dated 7 June 2022, who has expressed the view that the applicant’s relationship with her partner is genuine and supportive, and also states that the second child is ‘a sickly child with regular clinic presentations’ and that he requires extra medical care from his mother as his father is working to support the family.

   
   

   Dr Ly has expressed the view that the child will continue to require physical and emotional  support from his mother for this important period in his life.

5. The applicant states that if her visa is cancelled and if she has to leave Australia, she would be separated from her partner who is an Australian citizen and her children and may have to decide whether to be separated from one or both of her children, in breach of the family unity principles. The applicant states that if her children are to accompany her, they would be deprived of the ‘undoubted benefits’ of growing up in Australia under the protection of their father or to be removed from a sibling.  

6. The applicant submits that if she is to leave Australia as a result of her visa being cancelled, this would impact her younger child as he would not be able to access adequate healthcare in Cambodia. She states that his would impact on her business and her partner would lose his business network. The applicant submits that her elder child would find it difficult to fit in with the society and will have language problems and his education would suffer in Cambodia. She states that if she is to leave her children in Australia, her partner could not manage to earn a living and care for the two children.

7. In oral evidence the applicant also spoke about her responsibilities in raising her children, her care responsibilities and the hardship that would be caused if she is to leave Australia.

8. The Tribunal acknowledges that there could be significant hardship if the applicant is to leave Australia, and if she or her partner are separated from the children. The Tribunal considered the evidence presented by the applicant, including medical evidence, and accepts that it is in the best interests of the children to remain in the care of both parents. The Tribunal accepts that it is in their best interests if the applicant remains in Australia. However, as noted above, the Tribunal is mindful that the applicant has made a valid application for a Partner visa onshore and has been granted a Bridging visa in association with that application, enabling her to remain in Australia. The Tribunal acknowledges that there is no certainty that this visa will be granted, and there may be certain hardships associated with that process, such as the cost, uncertainty and delay, but the Tribunal considers it significant that there is a real possibility that she would be able to remain in, or in the future return to, Australia. That is, the cancellation of the visa will not lead to the separation of the applicant, her partner and the children, at least in the immediate future.

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

9. The applicant told the Tribunal that she has nowhere to stay in Cambodia. The Tribunal does not consider this gives rise to Australia’s protection obligations. The Tribunal finds that the cancellation of the visa would not lead to the removal of the applicant in breach of Australia’s non-refoulement obligation.

10. As for the principle of family unity, the applicant’s partner and children are Australian citizens. The cancellation of the visa would not necessarily prevent the applicant from maintaining these relationships as the applicant has the option of seeking other Australian visas.

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

11. If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion she would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas she could validly apply for due to the operation of s 48. The applicant may be subject to an exclusion period if she was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements she had acquired as a permanent resident of Australia.

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

12. The Tribunal accepts that significant hardship would be caused to the applicant and her family if the visa is cancelled and if the applicant is to leave Australia as a result. Most importantly, this could lead to the separation of the applicant and her children, or to the separation of the children from their father. If the children are to travel overseas, it would affect their schooling and lives in Australia. The applicant’s departure from Australia could affect the family business. The applicant also states that she has nowhere to live in Cambodia and no support. Given the length of her stay in Australia, the Tribunal is prepared to accept that evidence and, generally, accepts that if the applicant was to depart Australia as a result of her visa being cancelled, this may cause significant hardship to her and her family.

13. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s 104 of the Act and that there are grounds for cancelling her visa.

14. The Tribunal considers that there are strong reasons why the visa should not be cancelled. Most significantly, the Tribunal considers it is in the best interests of her two children to remain in the care of both parents and for the applicant to remain in Australia. This is a primary consideration. The Tribunal also places significant weight on the hardship that would be caused to the applicant and her family members by the cancellation of the visa (if it is to result in the applicant having to leave Australia) given the applicant’s responsibilities for the care and support of her children and her involvement in the business.

15. The Tribunal places some weight on the fact that the cancellation of the visa need not lead to the applicant’s departure from Australia as the applicant’s evidence is that she has made an application for a visa onshore and has been granted a Bridging visa. It is relevant, in the Tribunal’s view, that the cancellation of the visa would not (at least at present) result in the applicant’s departure from Australia and separation from her family.

16. The Tribunal accepts that the applicant contributes to the community. This also weighs against the cancellation.

17. However, in the circumstances of this case, the Tribunal has decided to place greater weight on other factors, most notably, the circumstances in which the non-compliance occurred.  The Tribunal has formed the view that the applicant had deliberately failed to inform the Department about the birth of the child and she withheld that information from the previous Tribunal so as not to jeopardise her permanent residence. The Tribunal found that the breach was intentional and deliberate. This weighs heavily in favour of the cancellation.

18. The Tribunal also places weight on the fact that the decision to grant the applicant the Partner visa was based, in part, on incorrect information, as the delegate had no knowledge of the child’s birth. The existence of a child with a person other than the sponsor was highly relevant to the assessment of whether the applicant was the spouse of the sponsor and to the decision to grant her the visa. This also weighs in favour of the cancellation.

19. Having considered all the circumstances of this case, the Tribunal decided to give the greatest weight to the factors that weigh in favour of the cancellation.

20. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member