Shen (Migration)

[2018] AATA 2641

Shen (Migration) [2018] AATA 2641 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Beilin Shen

CASE NUMBER:  1722609

DIBP REFERENCE(S):  BCC2016/1968454

MEMBER:Kira Raif

DATE:4 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 04 July 2018 at 12:06pm

CATCHWORDS

Migration – Cancellation – Partner (Residence)( Class BS) – Subclass 801 (Spouse) – Contrived relationship – Department not notified of change in circumstances – Timing of events in the relationship – First divorce application – Signed blank forms on advise of agent – Opportunity to seek assistance prior to making a declaration – Seeking change of date of separation in the Federal Court – Child of the relationship – No evidence to suggest the Sponsor is the biological father – No details of child’s living arrangements – Sponsor summoned by the Tribunal – Failed to attend the hearing – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 104, 107, 109, 140, 359A

Migration Regulations 1994 (Cth), 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 Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China born in August 1981. She applied for the Partner visa on the basis of her marriage to Mr Zac Zhen Gu in August 2010. The applicant was granted the temporary visa and subsequently the permanent Partner visa in September 2012.

3. In July 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) on the basis that the applicant failed to comply with s.101 of the Act. The NOICC refers to the divorce certificate showing the applicant divorced the sponsoring spouse in May 2013, noting that 12 months separation is required prior to divorce. The applicant provided her response to the NOICC in writing and her visa was cancelled on 14 September 2017. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 6 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent. 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.

   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. 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?

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 and s. 104 of the Act.

10. Information on the Department’s file, which was the subject of the Tribunal’s correspondence to the applicant pursuant to s. 359A of the Act, indicates the following.

    a.The applicant made an application for a Partner visa in August 2010 on the basis of her relationship with Mr Zac Zhen Gu. The applicant provided evidence in support of her application and was granted the temporary Partner visa.

    b.When applying for the Partner visa, the applicant provided Form 47SP in which she stated in response to various questions that her partner was Zac Zhen Gu and that they made the decision to marry in October 2009 and intended to maintain a lasting relationship. The applicant was granted the temporary visa on 30 August 2010.

    c.In July 2012 the applicant provided to the Department, in relation to the permanent visa, evidence of her ongoing relationship with Mr. Gu, including a birth certificate for their child and statutory declarations by the applicant and Mr. Gu. In these declarations the applicant state that she and Mr. Gu love each other and enjoy a happy family life and are deeply attached to each other. The applicant was granted the permanent Partner visa in September 2012.

    d.The Department subsequently received a copy of the applicant’s divorce certificate showing the applicant and Mr Gu divorced in May 2013. A copy of the divorce application, which is also on the Department’s file, shows that the couple separated on 1 March 2011 and had not lived together as husband and wife since that time. The divorce application is signed by both the applicant and Mr Gu before a JP, Ms Amy Lee.

11. In her written response to the NOICC the applicant provided a statutory declaration in which she claims she had fully complied with s. 101 of the Act. She states that she and Mr Gu had been living together without separation until February 2013. The applicant claims that in mid-2010 her parents in law came to Australia to look after her during pregnancy. From October 2010 she started to have arguments with her parents in law about the child and on one occasion, her mother in law hit her. She asked her husband to arrange for his parents to move out and they returned to China in January 2011. Because of financial difficulties, they decided to hire a nanny so that the applicant could return to work and they later sent the child to China to be cared for by the sponsor’s parents. In September 2012 she was granted the Partner visa and she was living with her husband without any arguments. In February 2013 her husband wanted to invite his parents to live with them to which she did not agree and their arguments started again. Around 20 February 2013 her ex-husband moved to his aunt’s home and he later suggested divorce, to which she agreed. He arranged for Ms Lee to do the paperwork. In March 2013 she attended Ms Lee’s office and was told that she had to sign the form. The applicant claims due to her lack of English she could not read the form and did not know its content. After receiving the NOICC she obtained a copy of the divorce application form and was told the separation date was 1 March 2011 which was not correct.

12. The Tribunal finds the applicant’s explanations unconvincing.

13. Firstly, the Tribunal does not accept that applicant was entirely unaware of the content of the divorce application form. By March 2013 when she attended Ms Lee’s office, the applicant had been living in Australia for close to ten years – she told the Tribunal that she first arrived in Australia in 2004 on a Business visa. She worked for a company and later on worked in sales. The Tribunal does not accept that after nearly ten years of residence in Australia, the applicant’s English was so poor that she was unable to understand anything on the form. Significantly, the applicant could obtain information about the content of the form from Ms Lee, with whom she had no difficulty communicating. Even if the applicant was incapable of reading the form (evidence the Tribunal does not accept), the applicant had the opportunity, and perhaps an obligation, to ask Ms Lee to read the content of the form to her before signing. The applicant would have appreciated the fact that she was signing a legal document which was to be presented to an Australian government agency. It is not sufficient to state that she knew nothing about the law. It was the applicant’s obligation to check the content of the document and ensure that correct information was being provided. If the applicant’s evidence in response to the NOICC is to be believed, the applicant appears to have been entirely indifferent about her obligations and the duty to provide truthful information. The applicant’s claimed indifference about the possibility that incorrect information was being provided on her behalf suggests that the applicant is not a person of credibility and that she is willing to provide untruthful information, or have such information provided on her behalf.

14. The applicant told the Tribunal in oral evidence that she was asked by the agent to sign the blank form, which she did. The Tribunal finds that evidence problematic. The Tribunal notes that the divorce application contains a lot of personal information which the agent would have no knowledge of, even if the representative helped her with other applications. It makes little sense, in the Tribunal’s view, for the agent to request signatures on the blank form before completing so many personal details on her own and in the absence of the parties. It makes more sense for that personal information to be provided by the parties and for the form to be completed in their presence so that required information can be sought.

15. The applicant also told the Tribunal she was not familiar with the Australian divorce laws and the separation requirement. However, that is not an issue. The applicant was required to provide the date of separation on the divorce application which she did. That factual date has absolutely nothing to do with the applicant’s knowledge of the law.

16. The Tribunal is also mindful that in her declaration in response to the NOICC sworn on 23 August 2017 the applicant makes no mention of signing the blank form. The applicant states that the agent told her she only had to sign the form and ‘leave everything to her’. The applicant states in that declaration that she could not read the form and did not know the content of the form, which would suggest that there was some content on the form when she signed and that contradicts the applicant’s present evidence that she signed a blank form. The applicant concedes that she did not mention that the form was blank in her declaration. The Tribunal has formed the view that it is a recent invention.

17. The Tribunal has formed the view that the applicant continued to provide untruthful evidence to the Tribunal.

18. The applicant provided to the Tribunal a copy of her communication with Ms Lee. The Tribunal notes that Ms Lee denies providing incorrect information in the divorce application. The applicant suggested to the Tribunal that Ms Lee could give oral evidence to the Tribunal but that has not been arranged. The Tribunal is mindful that the applicant provided evidence to the Tribunal of having contacted Ms Lee and seeking information, with no response received and the Tribunal is also mindful that any evidence which the applicant expects Ms Lee to give to the Tribunal may be self-incriminating. Having considered all the circumstances, the Tribunal has decided not to summon Ms Lee to give evidence.

19. Secondly, the Tribunal is concerned about the timing of these events. The applicant claims to have been in a loving and committed relationship with Mr Gu since their marriage in 2010 until February 2013, less than five months after her visa was granted. Despite the various arguments she now describes, the applicant’s evidence is that they were able to maintain a committed relationship. Yet, less than five months after the applicant was granted the permanent visa, that relationship breaks down irretrievably and the couple decide to divorce. The applicant’s evidence in her statutory declaration submitted in response to the NOICC is that she and Mr Gu separated around 20 February, they signed the divorce application on 6 March and it was filed on 7 March 2013. That is, after three years of a loving and committed marriage and claiming to have a child from that relationship, the couple arranged the entire divorce in less than two weeks. The Tribunal considers the timing suggested by the applicant to be neither realistic nor plausible. In the Tribunal’s view, a much more likely explanation is that this relationship was never genuine, or was no longer a committed one by the time the applicant was granted the permanent visa, and the couple simply waited for a period of time after the grant of the visa to officiate the divorce.

20. Thirdly, the Department and the Tribunal received allegations that the applicant is involved in visa fraud by arranging partner visas for others and charging substantial fees for such services. The allegations suggest that the applicant finds Australian partners for those wishing to obtain Australian permanent residence and arranges various documents in support of Partner visa applications. The allegations are quite detailed and contain the applicant’s personal information including her full name, date of birth and residential addresses, passport number and mobile phone number, suggesting the writer knows the applicant well. There are also a number of receipts, which appear to have been issued by the applicant for visa related services. This information was put to the applicant pursuant to s. 359A of the Act. This information lends significant weight to the allegations. The applicant denied having any knowledge of these documents in evidence to the Tribunal. In her written statement to the Tribunal the applicant claims that her personal information was available to her former migration agent Ms Lee and the applicant suggests Ms Lee may have fraudulently made arrangements but the Tribunal finds that suggestion far-fetched, given the fact that the information not only contains the applicant’s extensive personal details but also a number of receipts which are apparently issued by the applicant. The applicant denied in her evidence to the Tribunal that the signature on the receipts was hers and at the applicant’s request, the Tribunal sought to make arrangements with the Department’s Document Examination Unit for the signature verification. However, the applicant failed to provide the required number of documents with her Chinese signature to enable such verification to be made and the Department was unable to proceed with the request. It appears that the applicant has been less than cooperative in that process.

21. In the Tribunal’s view, the signatures on the contracts match the signatures on the application form and the divorce application which the applicant submitted to the Tribunal. The Tribunal does not accept the applicant’s explanation that her former migration agent used her identity to sign these contracts. In the Tribunal’s view, it is much more likely and plausible that these affairs were arranged by the applicant, as the documentary evidence suggests, and not by her migration agent. The Tribunal has formed the view that the applicant had been engaged in extensive visa fraud. This information supports the Tribunal’s view that the applicant was not in a genuine relationship with Mr Gu but “arranged” that relationship, and the supporting documents, to enable her to be granted the permanent visa.

22. In her statement to the Tribunal dated 5 February 2018 the applicant claims she made contact with her previous representative, Ms Lee and filed an application in the Federal Circuit Court asking for a Declaration that her separation with Mr Gu occurred in February 2013. The applicant presented a number of documents relating to the divorce application and her dealings with Ms Lee. The Tribunal accepts that the applicant had taken steps to change the divorce papers and the claimed date of separation. However, the Tribunal finds such actions unconvincing as evidence of the date of separation. Firstly, the applicant is taking steps to change the date of the separation only in response to the cancellation of her Partner visa when the date of the separation plays a very significant role in the delegate’s decision that a breach had occurred. The applicant has a strong self-interest in pursuing this change and her decision to do so may be explained by her desire to maintain the visa, rather than her identification of the incorrect information. Secondly, for the reasons stated above, the Tribunal does not accept that the applicant was entirely unfamiliar with the content of her divorce application which she now claims contained incorrect information. The applicant appears to have been willing to provide false information in support of the divorce application, or at the very least she was recklessly indifferent about the provision of such information on her behalf by Ms Lee and failed to take adequate steps to check the correctness of the information, and that implies the applicant’s willingness to be untruthful with the Court. In such circumstances, the Tribunal does not consider the applicant’s present evidence about the different separation date to be any more probative than the information she gave, or caused to be given, in the initial divorce application.

23. Similarly, the applicant told the Tribunal that she plans to sue her previous agent and she asked the Tribunal to postpone making the decision to await the outcome of that case. The Tribunal decided not to do so because the Tribunal does not consider the outcome of the applicant’s conflict with Ms Lee would be helpful in determining the date of separation and the nature of the applicant’s relationship with the sponsor. The applicant has strong interest in changing the separation date in order to preserve her visa. The Tribunal has formed the view that the applicant is not a person of credibility and that she is willing to provide untruthful information when it suits her needs, including to the court. She now claims she has done that in her divorce papers. The applicant is seeking a court declaration that the divorce occurred earlier but the court has no means of verifying that information. The court would rely on the applicant’s evidence which is self-serving. The Tribunal does not consider that to be helpful.

24. The applicant claims to have a child with the sponsor and that would, generally, be strong evidence of a genuine relationship. However, in this case there is little evidence that Mr Gu is the father of the child. The Tribunal acknowledges that the child’s birth certificate identifies Mr Gu as the father but the Tribunal is mindful that no checking or verification of stated paternity is done when a birth certificate is issued. The applicant claims the child lives with his father but the applicant presented no evidence concerning these arrangements. The Tribunal also acknowledges also the applicant’s evidence provided with her submission of 20 March 2018 concerning the relationship between Mr Gu and the child. The Tribunal accepts there were some interactions between the two, as evidenced by the photographs. However, such interactions do not establish the child’s paternity.The Tribunal invited the applicant to provide DNA evidence confirming her child’s paternity. The applicant claims that her former spouse Mr Gu refused to cooperate. The Tribunal issued summons for Mr Gu to attend the hearing but he failed to do so, stating he was fearful. On the evidence before it, the Tribunal is not satisfied that Mr Gu is the biological father of the child and the Tribunal does not accept that the child signifies a genuine and committed relationship between the applicant and Mr Gu before its breakdown.

1. The applicant’s oral evidence to the Tribunal is that her parents in law visited in 2012 and by that time she and Mr Gu were still together. The Tribunal does not consider the presence of the parents in law to be indicative of the existence of a genuine relationship and the Tribunal has formed the view that the applicant has not been truthful in her evidence. The applicant also repeatedly told the Tribunal they separated in January 2013. However in her declaration sworn on 23 August 2017 the applicant states that it happened in late February 2013 when the husband moved out after they had an argument about his parents. The applicant explained to the Tribunal that it did not occur overnight and there was ongoing conflict which started well before February, which also contradicts her evidence in the declaration where she expressly claims it was not until February 2013 that her husband discussed the issue of the parents. When asked to explain that discrepancy, the applicant said that she used to have a good relationship with the husband and was depressed once they separated. That hardly explains her present evidence to the Tribunal and the discrepancy between her present evidence and her previous evidence and there is no suggestion that the applicant presently suffers from depression or any other condition which would affect her recall. The Tribunal has formed the view that the applicant has been entirely untruthful in her evidence to the delegate and Tribunal. The Tribunal finds that she is not a person of credibility.

2. The applicant told the Tribunal that she has evidence of ongoing relationship with Mr Gu, including joint bank account and parents’ visits, etc dating after September 2012. It is problematic, in the Tribunal’s view, that the applicant has not presented any evidence of the relationship to the Tribunal prior to the hearing, despite being represented throughout the review and it was only at the request of the Tribunal that such evidence was presented subsequently. The Tribunal acknowledges that such evidence has now been presented but is of the view that it is not difficult to maintain documentary evidence when seeking to establish a particular set of circumstances for the benefit of a Partner visa application and such evidence does not necessarily represent the nature of the relationship. For example, the fact that the applicant and Mr Gu declared their common address to various agencies does not establish their cohabitation or joint household because no verification of the living arrangements would have been carried out by these agencies. The Tribunal also acknowledges the statements from friends and work colleagues concerning the applicant’s and Mr Gu’s social interactions and the Tribunal is prepared to accept that they believed the relationship to be a genuine one, although the Tribunal notes that such statements are fairly brief and the Tribunal has not had the opportunity to question the witnesses.

3. The applicant repeatedly told the Tribunal that she planned to make a new application to the Court to redress the mistake of her separation date. The applicant provided to the Tribunal evidence that the Federal Magistrates Court has dismissed her application and her representative confirmed that a new application to the Family Court has not been made yet because it would have implications on the validity of her and Mr Gu’s subsequent marriages. As noted elsewhere, the Tribunal does not consider this helpful because any court finding would be based on the applicant’s evidence and the Tribunal considers it self-serving. The Tribunal acknowledges the applicant’s suggestion that any new application would involve the evidence of Mr Gu and possibly Ms Lee but ultimately, any court finding would be based on the evidence of interested parties. The applicant claims that the court is fair and would make the right finding but she does not appear to have the same view about her divorce order which has the date of separation which does not suit her needs. The applicant appears to be very selective as to what court documents she is willing to accept as probative.

4. The applicant repeatedly told the Tribunal that the first application was made without her knowledge. That is clearly not the case because the applicant signed the divorce application and was aware of its existence and of the court proceedings. She had every opportunity to check the document before signing. In her submission of 20 March 2018 the applicant states that her evidence should be preferred over that of Ms Lee. The Tribunal has formed the view, for the reasons stated elsewhere, that the applicant is not a person of credibility and the Tribunal does not consider the applicant’s evidence to be truthful or probative.

5. The applicant’s representative concedes that the applicant did not check the documents before submitting the application for divorce but claims that the issue is not whether incorrect information was provided but whether there was an ongoing relationship with the sponsor at the time of visa grant. The applicant’s evidence is that she had a prior relationship with Ms Lee and trusted her. The applicant’s evidence is that she signed the blank form and it may be Ms Lee’s common practice.  As to the inconsistency with the separation date between January and February the representative notes that the period is short and a number of years have passed, so that discrepancy should not be given much weight. However, the Tribunal notes that the applicant identified a very specific date of separation in her declaration signed six months earlier, so the applicant seems to have been well aware of the date at the time the form was signed fairly recently. With respect to the failure to mention the blank form on the declaration, the representative notes that the declaration is very brief. The representative notes that Ms Lee is not a legal practitioner and is not permitted to lodge applications for divorce. Ms Lee also denied having acted for the applicant, which is not true, and that proves her as a person of no credibility. The Tribunal cannot determine the veracity of Ms Lee’s actions but the Tribunal is mindful that even if it established that Ms Lee’s conduct was not trustworthy (and the Tribunal makes no finding on the issue), this does not establish that the separation date was incorrectly recorded or not recorded on the basis of the applicant’s instructions to Ms Lee. With respect to the applicant’s engagement with visa fraud, the applicant denied her involvement but in any case, the applicant’s relationship with Mr Gu should be considered on its own merits. The representative also notes that the applicant and Mr Gu had known each other since 2005 and that would indicate their relationship was genuine. The Tribunal is not convinced that the duration of the couple knowing each other is necessarily proof of a genuine spousal relationship and, more importantly, its duration.

6. The Tribunal has considered the applicant’s evidence. The Tribunal finds the applicant’s explanation concerning the circumstances of signing the divorce application to be unconvincing. For the reasons stated above, the Tribunal does not accept that the applicant signed the blank form and the Tribunal does not accept that she was not involved in providing information to Ms Lee when completing the form. The Tribunal has formed the view that Ms Lee obtained the personal information on the form from the applicant and that she acted on the applicant’s instructions when completing and submitting the divorce application form. The Tribunal has formed the view that the applicant was well aware of the information supplied in that form.

7. The Tribunal does not accept the applicant’s evidence that the information in the divorce application is wrong and her present evidence concerning the relationship breakdown is correct. There is no obvious basis why the information in the divorce application should be disregarded or given less weight than the applicant’s subsequent evidence, which is given to support her claim that her visa should not be cancelled. The Tribunal has formed the view that the applicant is not a person of credibility and that she has not been truthful in her evidence to the delegate and the Tribunal.

8. For all these reasons, the Tribunal has formed the view that the applicant was not in a genuine spousal relationship with Mr Gu at least by the time she was granted the permanent visa. The Tribunal finds that the answers the applicant gave in support of her permanent visa application, when she claimed to have been in a committed relationship with Mr Gu, were incorrect. The Tribunal finds that the applicant did not comply with s. 101 of the Act.

9. The Tribunal further finds that the applicant’s circumstances changed once she had separated from Mr Gu so that an answer on her application form became incorrect. The applicant did not inform the Department in writing about the changes in her circumstances. The Tribunal finds that the applicant did not comply with s. 104 of the Act.

10. The Tribunal finds that there was non-compliance with s. 101 and s. 104 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

11. 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).

12. 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:

    The correct information

13. The Tribunal has formed the view that the applicant separated from her husband and the relationship ended before the applicant was granted the partner visa.

    The content of the genuine document (if any)

14. 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

15. It is central to the grant of the Partner visa that the applicant and the sponsor are in a genuine and a mutually committed relationship. The Tribunal has formed the view that the relationship ended before the applicant was granted the permanent visa. If that information was known to the decision-maker, the applicant would not have been granted the visa. The Tribunal acknowledges that the applicant claims to have a child with the sponsor but the paternity of that child has not been established. The Tribunal asked the applicant to arrange the paternity test but the applicant claims Mr Gu refused. However, even if there is a child from the relationship, there is nothing to suggest that the applicant claimed that the relationship ended and that she relied on the existence of that child when seeking the visa. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on incorrect information.

    The circumstances in which the non-compliance occurred

16. The applicant denies that she failed to comply with the Migration Act. She claims her relationship with the sponsor continued to exist until after she was granted the permanent visa.

    The present circumstances of the visa holder

17. The applicant told the Tribunal she has been in Australia for ten years and is used to life in Australia and had a child here. The applicant said it would cause her hardship if her visa is cancelled. The Tribunal accepts that evidence.

18. The applicant’s child lives in Australia. The applicant’s evidence to the Tribunal is that she visits the child sometimes.

19. The applicant told the Tribunal that she used to work irregularly and on a part-time basis but she does not work at present. She last worked around May or June 2017. She is supported by her present husband

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

20. Nothing adverse is known about the applicant’s subsequent behaviour concerning her obligations.

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

21. The Tribunal is not aware of any other instances of non-compliance

    The time that has elapsed since the non-compliance

22. The applicant made the application in August 2010 and was granted the temporary visa in August 2010 and the permanent visa in September 2012. More than five years passed since the non-compliance.

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

23. The Tribunal is not aware of any other breaches of the law since the non-compliance.

    Any contribution made by the holder to the community.

24. The applicant told the Tribunal she is sponsoring a child overseas. The Tribunal is prepared to accept that evidence. The applicant said that when she used to work, she used to pay taxes and has never relied on Centrelink. The Tribunal accepts that is the case.

25. 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 are mandatory legal consequences

26. 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 and she may be subject to an exclusion period. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

27. The Tribunal acknowledges that if the applicant does not have a permanent visa, she will be unable to sponsor her current partner.

    Whether there would be consequential cancellations under s.140

28. There are no persons in Australia whose visas may be cancelled under s. 140 of the Act.

    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.   

29. The applicant does not claim, and there is nothing to suggest, that Australia’s protection obligations arise in relation to the applicant. The Tribunal finds that Australia’s protection obligations would not be breached as a result of the cancellation.

30. The applicant’s evidence to the Tribunal is that her chid lives with his father and paternal grandparents. The applicant told the Tribunal that she visits the child at least twice a week and if her visa is cancelled, she would be unable to see the child as frequently. The applicant said that she is presently located near the child and can visit him as often as she likes. If she has to leave Australia, it would not be the same to have electronic contact and she does not believe if she leaves Australia, her ex-husband or his parents would bring him to China to see him. The Tribunal is mindful that there is very little evidence before Tribunal concerning the applicant’s relationship with her child or the nature of that relationship and, as noted above, there is no evidence regarding the child’s living arrangements and who the child may be living with. There is little evidence that the applicant has any contact with the child. There is no evidence of any parental bond between the applicant and the child. There is no evidence of any relevant court orders or other parental responsibilities towards the child. The Tribunal is not satisfied on the evidence before it there is a meaningful relationship between the applicant and the child.

31. The applicant also told the Tribunal that she has a step-child from a present relationship that she takes care of. Again, there is no documentary evidence of that relationship and very little evidence, other than the applicant’s own assertion, about any relationship or parental responsibilities between the applicant and the step-child. On the limited evidence before it, the Tribunal is not satisfied that such a relationship exists. The Tribunal does not consider that the best interests of the two children require the applicant’s presence in Australia or that such interests would be adversely affected as a result of the applicant’s visa being cancelled.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s. 101 and 104 of the Act and that there are grounds for cancelling her visa.

33. The Tribunal accepts that the applicant has been living in Australia for many years and is settled in Australia, she had been employed and appears to have formed social and economic ties. The Tribunal accepts that many years have passed since the non-compliance. The Tribunal accepts the applicant’s evidence that she contributes to the community and sponsors a child overseas. The Tribunal accepts there are matters which suggest that the visa should not be cancelled.

34. Against these considerations, the Tribunal has formed the view that the applicant has been untruthful in her dealings with the Department and her explanations to the Tribunal. The Tribunal found that Australia’s international obligations would not be breached as a result of the cancellation. Tribunal places significant weight on the fact that the applicant’s relationship with Mr Gu was central to her eligibility to be granted the Partner visa and as there is no suggestion that the applicant relied on the child exception in seeking that visa, the decision to grant the visa was based on the applicant’s relationship with Mr Gu which, in the Tribunal’s view, ended before the visa was granted. In the Tribunal’s view, that outweighs other considerations.

35. 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

36. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member