Shang (Migration)

[2018] AATA 5255

Shang (Migration) [2018] AATA 5255 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ting-Yun Shang

CASE NUMBER:  1730640

DIBP REFERENCE(S):  BCC2017/389322

MEMBER:Kira Raif

DATE:12 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 12 December 2018 at 1:27pm

CATCHWORDS
MIGRATION – cancellation – Subclass 820 (Spouse) visa – incorrect information regarding previous Working Holiday visa – applicant’s two different names not declared – deliberately withheld information regarding previous Working Holiday visa under different name – grant of Partner visa not dependent on previous visa – cancellation would cause hardship to applicant and sponsor – decision under review set aside

LEGISLATION

Migration Act 1958, ss 101, 107, 109(1), 140

Migration Regulations 1994, Schedule 2 Public Interest Criterion (PIC) 4020(2A), cl 417.222(b)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 820 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of the People’s Republic of China (PRC) (Taiwan) born in January 1983. She was granted the Class UK Partner visa on 29 February 2016. In October 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act in relation to her previously held Working Holiday visa. The applicant provided her response to the NOICC and her visa was cancelled on 28 November 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 December 2018 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 Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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

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

6. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

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

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

    a.On 27 February 2013 the applicant made an application for the Class TZ Working Holiday visa in Subclass 417 in the name of Ting-Yun Shang. The applicant gave details of her current Taiwanese passport, with the passport number, stating it was issued by the Ministry of Foreign Affairs on 25 February 2013.

    b.On the application form for the Working Holiday visa, the applicant:

    i.stated ‘no’ in response to a question whether she was known by any other name.

    ii.stated ‘yes’ in relation to a declaration that she was applying for the Working Holiday visa for the first time and had not previously entered Australia on a Working Holiday visa.

    iii.stated ‘yes’ in relation to a declaration that all relevant details required  of her in the application were truthfully declared.

    c.The applicant was granted the Working Holiday visa on 11 March 2013. She arrived in Australia on 13 April 2013 as a holder of that visa and departed Australia on 12 April 2014. She subsequently travelled to Australia on a Visitor visa.

    d.On 6 November 2014 the applicant made the application for the Class UK Partner visa in the name of Ting-Yun Shang. She was granted that visa on 29 February 2016.

    e.On 30 January 2017 the Department received information that the applicant was previously known by the name of Shu-Fen Shang (DOB 18 January 1983) and that she changed her name to Ting-Yun Shang. Both identities Shu-Fen Shang and Ting-Yun Shang have the same Taiwan personal identification number but different Taiwanese passport numbers.

    f.The Bureau of Consular Affairs of the Ministry of Foreign Affairs of PRC states that a Taiwanese identity number is issued to Taiwanese nationals of 14 years or older who have household registration in Taiwan. This document is required to obtain a PRC (Taiwan) passport.

    g.Information before the Department indicates that the applicant was granted a Working Holiday visa in the name of Shu-Fen Shang on 24 March 2010. She initially travelled to Australia as a holder of that visa on 22 May 2010. She was granted another Working Holiday visa on 30 December 2011. She departed Australia in the name of Shu-Fen Shang on 5 February 2013.

    h.The applicant was interviewed by an ABF officer upon entry to Australia on 2 February 2017. The applicant provided a declaration in which she stated that she previously changed her name from Shu-Fen Shang to Ting-Yun Shang and that she failed to declare this in her application for the Working Holiday visa lodged on 27 February 2013. The applicant stated that she was unaware she had to provide that information.

11. In her written response to the NOICC the applicant states she is ‘truly sorry’ she did not comply with s.101. The applicant states that when applying for the Working Holiday visa, she followed what others told her and ‘did not look out [for] the question’ which was her mistake. She did not mean to do that.

12. In her written submission to the Tribunal of 2 November 2018 the applicant provided a copy of her household registration transcript, indicating the change of name, stating that all her other documents had recorded the change of name. The applicant stated that because her English was not good, she followed the advice of others when completing the forms and did not pay attention to the questions. The applicant repeated these claims in oral evidence to the Tribunal.

13. The Tribunal finds these explanations unconvincing. As noted above, the questions on the form not only relate to the use of a different name, but also the previous visits to Australia and the use of a different passport. It is difficult to see how the applicant could have missed a series of questions on the application form. In the Tribunal’s view, a more likely explanation is that the applicant deliberately withheld the information concerning her previous travel to Australia, particularly as the grant of earlier Working Holiday visas may have precluded the grant of another one. Even if the applicant did follow advice from others, that does not excuse the non-compliance.

14. In oral evidence, the applicant told the Tribunal that she followed other people when completing the form. However, the applicant was required to provide her own personal information whether or not she followed the advice of others. The applicant also said that her English was not very good at the time but the Tribunal is of the view that the relevant questions were quite simple, such as whether the applicant was known by another name and whether she previously applied for the visa and the Tribunal does not accept that the applicant misunderstood the questions. The applicant also said she did not read the questions carefully. If that is the case, it is difficult to see how she planned to ensure that no incorrect answers were given if she did not read the questions carefully.

15. The Tribunal finds that the applicant had been known by another name during her first visit to Australia between March 2010 and February 2013. The Tribunal finds that by stating ‘no’ in response to a question of whether she had been known by another name, the applicant filled in or completed an application form in a way that an incorrect answer was given. The Tribunal further finds that by stating that the application for the Working Holiday visa made in February 2013 was her first application, the applicant also filled in the form in a way that an incorrect answer was given.

16. The Tribunal finds that the applicant filled in her application form for the Working Holiday visa in February 2013 in a way that incorrect answers had been given. The Tribunal finds that the applicant did not comply with s.101(b) of the Act. For these reasons, 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?

17. 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).

18. 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 r.2.41 of the Regulations. Briefly, they are as follows.

    The correct information

19. The correct information is that the applicant has previously travelled to Australia and had previously applied for, and had been granted, another Working Holiday visa. The correct information is that the applicant has used a different name to travel to Australia.

    The content of the genuine document (if any)

20. This is not relevant in this 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

21. A decision to grant the Partner visa is not dependent on the applicant’s previous travel to Australia and her holding a Working Holiday visa. The use of a different identity may be relevant to Public Interest Criterion (PIC) 4020(2A) and the provision of incorrect answers in relation to the Partner visa application or the Working Holiday visa which the applicant held in the 12 months before making the Partner visa application would have also been relevant to the assessment of PIC 4020(1).

22. The Tribunal is mindful that if the applicant previously held two Working Holidays visas, she may not have been entitled to be granted one in February 2013. Unless the applicant was granted another visa, she could not have entered Australia holding the Working Holiday visa and would not have had the opportunity to make the Partner visa application onshore.

23. The Tribunal finds that the decision to grant the Working Holiday visa was based, partly, on incorrect information. The decision to grant the Partner visa does not appear to rely on incorrect information. 

    The circumstances in which the non-compliance occurred

24. The applicant claims in her response to the NOICC that she followed advice of others and ‘did not look out’ for the questions. In oral evidence, the applicant told the Tribunal that her English was not good and she followed the advice of others.

25. As noted above, the Tribunal does not consider this plausible, given that there were multiple questions relating to the applicant’s identity and the previous visas. It is difficult to see how all of these questions could have been overlooked by the applicant.

26. The Tribunal notes that very little time had passed since the applicant left Australia on 5 February 2013 holding the previous Working Holiday visa in a different name and her application for the last Working Holiday visa made on 27 February 2013. As this was her third application for the Working Holiday visa, the applicant was not entitled to it (cl.417.222(b)). The timing of her applications and the fact that the applicant was not entitled to that visa, suggests that the applicant’s change of name and the withholding of that information was deliberate to ensure that she could obtain the visa and return to Australia as quickly as possible. The Tribunal does not accept that the applicant simply failed to appreciate the questions or had misunderstood what was asked of her.

27. The applicant told the Tribunal that she was not aware that she could not apply for the third Working Holiday visa and she changed her name because her old name did not sound good. The Tribunal does not accept that explanation. In particular, the Tribunal does not accept that the applicant was unaware that she could not apply for the third Working Holiday visa. The applicant must have known enough about the visas to be successful in obtaining two Working Holiday visas previously. The Tribunal does not accept the applicant’s submission that she decided to change her name at precisely the time when she left Australia after holding two Working Holiday visas, wishing to return to Australia on another one. She did not change her name previously, nor since. The only time she decided to change her name was when she was seeking to re-enter Australia without delay. Having changed her name and having obtained the new passport, the applicant then made the application for the third Working Holiday visa in which she failed to mention the previous visit. In the Tribunal’s view, the applicant had deliberately withheld information about her previous visit and had breached s.101 of the Act in relation to the last Working Holiday visa application in order to be able to re-enter Australia without delay. The Tribunal has formed the view that the breach was deliberate.

    The present circumstances of the visa holder

28. In her written response to the NOICC the applicant refers to her long term relationship with her partner. She states that the relationship has existed for about four and a half years, they love each other and plan to travel. They plan to do IVF and have children and they look after two dogs. The applicant’s partner also provided a declaration stating that the applicant did not break any laws and is a good person and he hoped she could stay in Australia.

29. The applicant refers to her employment at McDonald’s. She provided to the Tribunal evidence of her employment and participation in various activities. The applicant told the Tribunal that she now works as a housekeeper in a hotel.

30. The applicant states that she loves Australia and wants to stay with her partner and their dogs and does not want to be separated from them.

31. The applicant provided to the Tribunal additional documents, including evidence of a boat and car purchase, evidence showing that the applicant’s partner has sponsored his brother for a Student visa, evidence of the couple’s travel and joint financial arrangements and of their living arrangements. The applicant states that she has been in a relationship with her partner for about five and a half years and she described the various aspects of the relationship. For the purpose of this application, the Tribunal accepts that the applicant is in a genuine and long standing relationship with her partner.

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

32. 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

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

    The time that has elapsed since the non-compliance

34. The application for the last Working Holiday visa was made in February 2013. More than five years passed since the non-compliance.

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

35. There are no other known breaches of the law.

    Any contribution made by the holder to the community

36. The applicant refers to making donations to an animal shelter and also blood donations. The applicant states that she does her best at work so that her supervisor is happy with her. The Tribunal is prepared to accept that the applicant has made a contribution to the community.

37. 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 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

38. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. The Tribunal accepts that in relation to some visa categories, the applicant may be subject to an exclusion period in PIC 4013 or Special Return Criterion (SRC) 5002.

39. The applicant told the Tribunal that even though she may be able to make another visa application, they do not have money to do that.

    Whether there would be consequential cancellations under s.140

40. There are no persons affected by the consequential cancellations.

    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

1. There is no evidence, and the applicant does not claim, that she would be persecuted or harmed upon return to her home country. The Tribunal does not consider that Australia’s protection obligations would be breached as a result of the cancellation.

2. There are no children who would be affected by the cancellation.

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

3. The applicant states that if her visa is cancelled and if she has to leave the country, her husband wants to come with her but it would be difficult for him to live in Taiwan. He cannot speak Mandarin and would be unable to find a job in Taiwan. They also have two dogs. The Tribunal accepts that hardship may be caused by the cancellation if that would lead to the applicant’s separation from her partner.

4. The applicant states that her husband is not in good health and has not been able to work. He received a work injury to his foot and also has migraines and they had to see specialists a few times. Because he cannot work, she works to support the family financially. Her husband also supports his grandparents overseas and his income is not sufficient without her support. She cooks special meals for his diet. The Tribunal accepts that the applicant supports her husband and that such support may be withdrawn if the applicant has to leave Australia.

5. The applicant states that she has been out of her home country for many years and it would be difficult for her to get a job. The applicant has not presented any evidence of having applied for jobs and of having been denied jobs in Taiwan. The Tribunal is also mindful that the applicant has never held a permanent Australian visa and, as such, she can have no expectation of staying in Australia permanently.

6. The applicant said that they are trying to have a child and started an IVF process. She does not want to be separated from her spouse at that time. The Tribunal accepts that the cancellation of the visa would cause a degree of hardship to the applicant and her partner.

7. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.101 of the Act and that there are grounds for cancelling the visa.

8. The Tribunal has formed the view that the breach was deliberate and that the applicant had intentionally failed to provide information about her previous identity and previous visit in order to be able to return to Australia without delay. The Tribunal considers this to be significant because it was central to the applicant’s eligibility to re-enter Australia on the Working Holiday visa. The Tribunal has formed the view that the decision to grant the applicant the Working Holiday visa was based on the incorrect information and it is significant that she would not have been entitled to that visa if the correct information was known. There are strong reasons why the visa should be cancelled.

9. However, the Tribunal is mindful that the decision to grant the Partner visa is not dependent on the visa the applicant previously held. That is, the incorrect information the applicant provided in her Working Holiday visa had no bearing on the decision to grant the applicant the Partner visa. There is no suggestion that the relationship is not genuine. The Tribunal places significant weight on this consideration.

10. There are no other instances of non-compliance and no other breaches of the law and close to six years have passed since the non-compliance. The Tribunal has formed the view that the cancellation would cause a considerable degree of hardship to the applicant and her partner because it may cause the couple to separate, given the couple’s present circumstances.

11. Overall, while the Tribunal acknowledges that there are reasons why the visa should be cancelled, the Tribunal places greater weight on the fact that the correct information would have no bearing on the applicant’s eligibility for the Partner visa and also on the fact that in the particular circumstances of this case, considerable hardship may be caused to the applicant and sponsor as a result of the cancellation.

12. 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 not be cancelled.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member