Sun (Migration)

[2019] AATA 1711

Sun (Migration) [2019] AATA 1711 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lili Sun
Mr Yingshi Tan
Ms Jun Min Tan

CASE NUMBER:  1733087

DIBP REFERENCE(S):  BCC2016/3116816

MEMBER:Bridget Cullen

DATE:29 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 165 (State/Territory Sponsored Investor (Provisional)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 29 May 2019 at 2:45pm

CATCHWORDS
MIGRATION – cancellation – Business Skills (Provisional) (Class UR) visa – Subclass 165 (State/Territory Sponsored Investor (Provisional)) – ground for cancellation – incorrect information in visa application – Form 1139 – Business Skill profile – funds to be used to finance the Designated Investment – statement of the source of funds – funds to be ‘unencumbered’ – sale of property – property not disposed of – borrowed funds to finance the Designated Investment – consideration of discretion – no efforts to rectify situation with a new statement for the source of funds – non-compliance material to the grant of visa – degree of hardship – temporary visa with no expectation of permanent residency – visa would have expired more than a year ago – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 107, 109, 140
Migration Regulations 1994 (Cth), Schedule 2, cl 165.222

CASES
MIAC v Khadgi (2010) 190 FCR 24

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 first named applicant’s Subclass 165 (State/Territory Sponsored Investor (Provisional)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the sale of the property which provided the funds for the applicant to satisfy cl.165.222 of the Regulations was not genuine and it appeared that the money to finance the Designated Investment was borrowed. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicant, Ms Lili Sun, appeared before the Tribunal on 25 March 2019 and 21 May 2019 to give evidence and present arguments. Ms Sun attended the hearing on 21 May 2019, also assisted by a support person. The secondary applicant Mr Yingshi Tan, appeared by telephone to give evidence.  The Tribunal also received oral evidence from Rong Lu, the applicant’s former Migration Agent in China. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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. Extracts of the Act relevant to this case are attached to this decision.

8. 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(b), namely that incorrect answers were given or provided to the Department in the following respects.

10. On 1 February 2011, the Applicant applied for a State/Territory Sponsored Investor (Provisional) (class UR) Subclass 165 visa at the Department’s post at Hong Kong. Along with her application, the Applicant completed a Form 47BT - Application for a Business Skills (Provisional) visa and declared:

    Part N – Signatures (page-24)
    Q79 Declaration
    Warning: Giving false or misleading information is a serious offence.
    This declaration must be signed by the main applicant and each accompanying person over 18.
    • I declare that the information I have supplied in this application is complete, correct and up-to-date in every detail.
    • I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.
    • I have read and understood the information supplied to me in this application.

11. On 24 September 2012, as a part of the application process, the Applicant submitted a Form 1139 – Business Skill profile: Investor and State/Territory Sponsored Investor (Provisional) to the Department and provided the following response/declaration:

    Part E – Designated investment (page-2)

    Q11. Funds to be used to finance this investment
    Attach a statement of the source of funds, providing an historical account of how these assets were accumulated. Funds used to purchase a designated investment in Australia must be accumulated as a result of your, or your and your spouse or de facto partner’s, business or eligible investment activities.

    The statement should include details of major assets purchased or sold leading to the accumulation of these assets including:

    Note: You should not borrow funds to finance this investment.

    Assets other than those listed here may be used to fund the Designated Investment. If you intend to use assets not listed here, a new statement of the source of funds and supporting documentation must be submitted for approval.

    Name of asset(s)                   Current market value/amount (in local currency)

    Real Estate   2,270,000.00

    Business Ownership              6,536,658.00

    Total in local currency           RMB 8,806,658.00

    Total in Australian dollars      AUD 1,316,391.00

    Part J – General Declaration (page-5)

    Q18. I declare that the information I have supplied in this form is complete, correct and up- to-date in every detail.

    I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.

12. On 19 March 2013, the Department received information from the applicant for one of the ways in which they procured funds for the making of the Designated Investment, that being the sale of a property at Unit 102, No. 4, Lane 3369, Caobao Road, Minhang District, Shanghai, China, for the price of RMB 2,500,000 to a Xiaobo Zhou in December 2012. This was supported by an agreement of property sale dated 6 March 2013, a bank deposit slip of the RMB 2,500,000 dated 7 March 2013 and a bank statement confirming receipt of the RMB 2,500,000 into the applicant’s account on the same date.

13. On 30 July 2013, the applicant provided a Form 1031 – Declaration Business Skills visa class – State/Territory Sponsored Investor – Designated Investment, confirming they had made an Investment with the Queensland Treasury Corporation (a Treasury Bond of AUD$750,000.00) with a four year term.

14. As a result of the above, the applicants were granted the visa on 22 August 2013.

15. Subsequent to the granting of the visa, on 6 September 2016, the Department received information that Xiaobo Zhou, the purchaser of the property, had commenced legal proceedings against Lili Sun and Yingshi Tan in China, to recover RMB 7,000,000 allegedly lent to them by Xiaobo Zhou. During the course of these proceedings, on 20 July 2016, the Putuo District People’s Court of Shanghai issued a seizure order in relation to the property at Unit 102, No.4, Lane 3369, Caobao Road, Minhang District, Shanghai, which continued to be registered to Mr Yingshi Tan.

16. The seizure order was made for a period of three years, pending the settlement of debt owed, in China, by Yingshi Tan to Xiaobo Zhou. 

17. Lili Sun is the Defendant in proceedings commenced in the Supreme Court of Queensland (BS9946 of 2016) by the First Plaintiff, Linktime Technology Co Limited and Second Plaintiff, Audiologic Limited, both companies incorporated in Hong Kong. The Plaintiffs allege that Ms Sun borrowed the total sum of AUD$1,397,879.97 from them, without a written contract, and that the borrowed funds were used to fund Ms Sun’s Australian visa application.

18. Lili Sun is also the Defendant in related proceedings in the Magistrates Court of Queensland (M1259 of 2019), commenced by the same Plaintiffs, seeking to enforce an alleged settlement agreement by Ms Sun of the Supreme Court Proceedings. Ms Sun disputes having entered into a settlement agreement.

19. A significant volume of material has been filed in the Tribunal by the First and Second Plaintiffs, via their legal representative, on 4 April 2019.  On 9 April 2019, the Tribunal provided a full copy of the material filed to the Applicants, with an invitation to comment and make submissions in relation to the documents.

20. The Applicants submit, and the Tribunal agrees, that the proceedings in the Queensland Supreme and Magistrates Courts are not relevant to the application now before this Tribunal.  The Queensland Court proceedings do not relate to the alleged non-compliance by the applicant, which relates to Ms Sun’s declaration that the Caobao Road Property sold to Xiaobo Zhou was one of the ways in which she procured funds for the making of the Designated Investment.  The Department formed the view that, despite Ms Sun having advised on 19 March 2013 that the sale of the Caobao Road Property was one of the ways she had procured funds for the making of the Direct Investment required for the Class UR Subclass 165 State/Territory Sponsored Investor (Provisional) visa, that the Caobao Road Property continued to be encumbered.

21. Ms Sun and Mr Tan both admit that the Caobao Road Property was never actually transferred to Xiaobo Zhou.  Ms Sun and Mr Tan also both admit that they continued to hold the funds paid to them by Xiaobo Zhou.  The information before the Tribunal indicates that:

    ·7 March 2013 - Xiaobo Zhou transfers funds of RMB 2,500,000, evidenced by a bank deposit slip, and a copy of Ms Sun’s Bank of Communications statement, indicating the funds were received by her the same day.

    ·19 March 2013 – Ms Sun advises the Department that one of the ways she acquired the funds to make the Designated Investment was through the sale of the Caobao Road property, for RMB 2,500,000 to Xiaobo Zhou in December of 2012.

    ·30 July 2013 – the Designated Investment is made with the Queensland Treasury Corporation.

    ·22 August 2013 – Applicants granted a Class UR Subclass 165 State/Territory Sponsored Investor (Provisional) visa.

    ·29 April 2015 – Ms Sun and Mr Tan sell the Caobao Road Property to Aidi Chen, Rongbao Li and Qin Li for RMB 2,290,000. This transaction is evidenced by a Shanghai Real Estate Purchase and Sales contract, provided to the Department by the Applicant.

    ·20 July 2016 – the Putuo District People’s Court of Shanghai issues a seizure order in relation to the Caobao Road property. 

22. Ms Sun, in her oral evidence, and in her Statutory Declaration dated 27 February 2019, asserts that following the sale of the Caobao Road Property to Xiaobo Zhou, Ms Zhou changed her mind.  Ms Sun sets out the following information about the Caobao Road Property sale in her Statutory Declaration:

    In order to apply for the 165 visa, my husband and I decided to sell the oldest apartment in our real estate properties, property situated at Room 102, No. 4, Lane 3369, Caobao Road.

    When Ms Xiaobo Zhou learned that we want to sell the property for migration purpose, she told us that she wants to buy this property. Consequently, on 11 December 2012, we signed an Intention to Purchase Agreement at the real estate transaction centre. On 6 March 2013, we further signed a formal contract at the real estate transaction centre, and Ms Zhou paid a deposit of RMB 100,000. On 7 March 2013, Ms Zhou further paid partial purchase price of RMB 2.5 million yuan. We received a total of RMB 2.6 million yuan in total. The contract was provided to the Department previously.

    We then waited for Ms Zhou to effect the transfer at the real estate transaction centre. On or about 3 September 2013, due to the national purchase restriction policy, Ms Zhou was unable to dispose of the property under her name to complete this transfer. Ms Zhou expressed to us that she wanted to terminate the contract however did not want to lose her payment. We did not agree.

    Having considered that we have been good friends and business partners for over ten years, after negotiations, Ms Zhou decided not to terminate the contract but allow us to hold the property on her behalf and sell it, with all selling proceeds from the sale including profit belonging to her.

    On 26 April 2015, we finally sold the property. I was in Australia then and have authorised my father to sign the contract on my behalf. In accordance with the contract, the buyers paid RMB 300,000 yuan to me when signing the contract, and RMB 600,000 yuan to Yingshi Tan on 25 July 2015. I further received RMB 1.9 million yuan from the buyers on 22 September 2015, and after the transfer, I received the remaining RMB 100,000 yuan in cash. We received a total amount of RMB 2.9 million yuan.

    As my Ukey to unlock my bank account was faulty, and I was in Australia on bridging visa could not physically go to the branch asking for a replacement Ukey, my husband was unable to transfer money from my account. He transferred money from his company’s account to Ms Zhou and her husband Gang Xi’s accounts in accordance with Ms Zhou’s direction. The entire sale proceeds have been paid to Ms Zhou in full.

23. The Tribunal considers that it does not need to make a finding in relation to the explanation provided by the Applicants in relation to the sale of the Caobao Road Property. Regardless of any agreement to sell made by the Applicants with Xiaobo Zhou, the property continued to be registered to Mr Tan. No consideration passed from Ms Sun to Ms Zhou following the agreement to sell the Caobao Road Property. Ms Sun had the benefit of the funds paid by Ms Zhou from 7 March 2013 (before the visa was granted) until the property was actually sold on 29 April 2015. 

24. While Ms Sun asserts that she did not borrow money from Ms Zhou, there was no sale of the Caobao Road Property to Ms Zhou. The Caobao Road Property could not be considered unencumbered – either (1) Ms Zhou had an equitable interest in it following payment of the purchase price to Ms Sun; or (2) there was no genuine intention on the part of Ms Zhou to ever purchase the property, and she provided the funds to Ms Sun until the property could be sold to another buyer. In either case, the resulting impact is that Ms Sun has received funds from Ms Zhou which were not unencumbered. 

25. The Tribunal finds that the Caobao Road Property was not unencumbered at the time that Ms Sun listed it on Form 1139 (Part E – Q11) as funds that were not borrowed and were to be used towards financing the Designated Investment. As a consequence, the Designated Investment is not unencumbered for the purposes of r.165.222(2)(b).

26. Ms Sun asserts that she, and her family, are very wealthy and therefore would not have needed to borrow funds for the purpose of migration.  The evidence of Ms Rong Lu, the Applicant’s former migration agent, supports Ms Sun’s claims. Ms Ru, in a Statutory Declaration dated 27 February 2019 says:

    At the time of submitting Ms. Sun’s subclass 165 application, Ms. Sun has a total of five Shanghai real estate properties and stock assets in Shanghai.

    During the application process, our company asked Ms. Sun to provide evidence of having assets of A.1.125 million, Ms. Sun has provided the corresponding asset information as required.

    According to the asset requirements by the Immigration Department, Ms. Sun provided one real estate property (Room 102, No.4, Lane 3369, Caobao Road, Minhang District, Shanghai) and net asset under the company to satisfy the asset requirements of A$1.125 million. The apartment disclosed at the time was not occupied and was intended to be sold. Since $1.125 million asset requirement has been met, we did not require Ms. Sun to provide further information on other assets.

27. The Tribunal explained to Ms Sun and her representative during the hearing that the Tribunal did not consider Ms Sun’s overall wealth to be a relevant factor.  The issue before the Tribunal is whether the information that Ms Sun included with her visa was correct.  In other words, the information that is relevant is the information actually given by Ms Sun to the Department about the source of the funds for the Designated Investment, not whether Ms Sun had other assets that could have been utilised.

28. Following the hearing, on 23 May 2019, the Applicant’s representative wrote to the Tribunal and asked that the Tribunal provide an opportunity to make post-hearing submissions for the following reasons:

    Firstly, from contractual point of view, the purchase of the property was unconditional thus not subject to any issues that the purchaser may have. Ms Sun and her husband have fulfilled their part of obligations under the contract and there has also been substantial specific performance from the purchaser. The contract has to settle or the purchaser would suffer loss of her entire payment for failing to settle. Ms Sun had indefeasible title to the selling proceeds and was entitled to use these proceeds for whatever purpose she may have, including for investment purpose under her subclass 165 visa.

    Secondly, at all material time, Ms Sun has capacity to fund her investment by way of disposal of any properties she was holding in her asset pool. We note the Member acknowledged this fact and it is not disputed. The hurdles occurred in disposal of Ms’ Sun’s Caobao property was unfortunately a circumstance beyond her control. Ignoring these facts and simply arguing part of the money amongst Ms Sun’s entire investment funds be encumbered for these particular facts would be unreasonable and unjust.

29. The Tribunal did not, as the Applicant asserts, “acknowledge” that Ms Sun had a significant asset pool.  The Tribunal does not consider the overall size of the Applicant’s asset pool to be a relevant issue in these proceedings, Regardless, the Tribunal provided the Applicant’s representative with the opportunity to provide submissions following the hearing, and the Tribunal has considered those submissions, which were filed in the Tribunal on 28 May 2019.

30. The Applicant’s representative raises the Applicant’s lack of intention to withhold or provide incorrect information to the Department.  The Tribunal does not consider the Applicant’s intention relevant – it is the Applicant’s obligation to ensure that the information provided is correct.

1. The Applicant’s representative refers to the definition of “Unencumbered Property” provided by the Property Council of Australia, and the Cambridge Dictionary definition of “Loan”.  Neither definition is instructive.  If the circumstances surrounding the sale of the Caobao Road Property were truly beyond the Applicant’s control, as she asserts, the Tribunal notes that she took no steps to notify the Department that the source of the funds for the Designated Investment had changed, in that the property could not be considered to be disposed of until the title was transferred to the purchasers in 29 April 2015, some 18-months after the visa was granted.

2. The Tribunal notes that despite the purported difficulties the Applicant had with the sale to Ms Zhou, the Applicant took no steps to communicate with the Department that there were complications in relation to one of the sources of funds for the Designated Investment, nor did she provide the Department with a new statement for the source of funds, if other assets were available to her.  The Tribunal points out that the Applicant acknowledged that a new statement for the source of funds would be required when she signed the Form 1139 – Business Skill profile: Investor and State/Territory Sponsored Investor (Provisional) on 24 September 2012.

3. The Tribunal finds that the Caobao Road Property remained titled to Yingshi Tan until at least 29 April 2015, and on this basis, was not disposed of as declared by the Applicant, and was not unencumbered for the purposes of r.165.222(2)(b).  The Tribunal finds that the Applicant borrowed funds from Ms Zhou to finance the Designated Investment, whilst declaring on her application that she did not borrow funds for this purpose.  The Tribunal finds that the Applicant provided incorrect information to the Department in her answers to Question 11 Funds to be used to finance this investment, on Form 1139, on 24 September 2012.

4. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

5. 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).

6. 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

   ·     the content of the genuine document (if any)

   ·     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

   ·     the circumstances in which the non-compliance occurred

   ·     the present circumstances of the visa holder

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

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

   ·     the time that has elapsed since the non-compliance

   ·     any breaches of the law since the non-compliance and the seriousness of those breaches

   ·     any contribution made by the holder to the community.

7. 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.

8. The correct information is that the Applicant borrowed funds to procure the Designated Investment, and the sale of the property to Ms Zhou was not complete as declared by her in the application. In doing so, the Applicant provided incorrect information for the purposes of achieving residence in Australia in relation to her Subclass 165 visa application. The Tribunal places little weight on the assertions made by the Applicant that she had significant other assets that could have been utilised by her, as there were no efforts by the applicant to provide the Department with a new statement for the source of the funds, despite the Applicant having signed Form 1139, acknowledging this requirement. The circumstances in which the non-compliance occurred were in relation to the visa application process, and material to the grant of the visa. The Tribunal places significant weight on this as a factor supporting cancellation of the visa.

9. There is no information before the Tribunal suggesting that there have been any non-genuine or bogus documents, and therefore the Tribunal has not placed any weight on this as a factor for, or against, cancellation.

10. The Tribunal acknowledges that cancellation of the visa would cause personal distress to the Applicant, her husband, and their daughter. The Applicant’s husband, Mr Yingshi Tan, was granted a secondary Subclass 165 visa, but departed Australia on 8 October 2014, and has remained outside of Australia since this time.

11. The Applicant’s daughter, Ms Jun Min Tan, continues to reside in Australia with the Applicant. She is now 21-years of age and studying a Bachelor of Physiotherapy (Honours) at the University of Queensland. As an adult, Ms Jun Min Tan may be able to obtain a student visa to continue studying in her own right. There is no information before the Tribunal suggesting that Ms Jun Min Tan has in any way been involved in provision of the incorrect information to the Department. 

12. The Tribunal accepts that, since arrival in Australia, the Applicant and Ms Jun Min Tan have sought to make Australia their home, and to assimilate. The Tribunal acknowledges that the Applicant and Ms Jun Min Tan, who attended an exclusive Catholic girls’ school, have Australian friends. The Tribunal accepts that the Applicant has made efforts to learn English and to develop real estate skills. The Tribunal places some weight on the distress occasioned to the Applicant, and to Mr Yingshi Tan, and Ms Jun Min Tan as a result of the consequential cancellations of their visas, as factors that weigh in favour of not cancelling the visa.

13. There is no information before the Tribunal indicating that the Applicant, her husband, or daughter, have made any notable contributions to the Australian community since their arrival. The Tribunal accepts that, as members of the community since 2013, the Applicant and her daughter would have made contributions to their friendship circles and school communities. The Tribunal also notes that the Applicant has been a blood donor while in Australia. The Tribunal does not consider these contributions to be notable, but rather, are indicative of the Applicant and her family making efforts to integrate into the Australian community. The Tribunal places some weight on these ordinary contributions as a factor that weighs in favour of not cancelling the visa.

14. The Tribunal acknowledges that the Applicant, and her husband, own several properties in Australia. The Applicant says that they have gradually transferred assets to Australia as they regard Australia as their home. While this Tribunal is unable to resolve the merits of the litigation before the Magistrates and Supreme Courts, the Tribunal notes that it is alleged that the Applicant’s Australian assets have been acquired through funds loaned to them, and removed from China strategically. The Tribunal accepts that having to sell the Australian assets to depart would create administrative inconvenience, and possibly financial loss to the Applicants. The Tribunal places some weight on this as a factor in favour of not cancelling the visa.

15. The Tribunal considers that these factors must be viewed alongside the fact that Applicant’s visa would have, but for cancellation and the length of time it has taken to hear this matter, expired on 10 January 2018. The Tribunal acknowledges that cancellation will have an impact on the application for a State/Territory Sponsored Investor class DF Subclass 893 Permanent visa, made by the Applicant, with Yingshi Tan and Jun Min Tan listed as dependant applicants, on 31 August 2017. This application remains under consideration by the Department.  The Tribunal considers that there was no entitlement to permanent residency by the Applicants, and that they have taken the risk of relocating their assets to a jurisdiction where they had no expectation of permanent residency. That the visa, which did not entitle the Applicants to permanent residency, would already have expired, now more than a year ago, is a factor that the Tribunal gives some weight in favour of cancellation.

16. The information before the Tribunal acknowledges that the Applicant has co-operated with the Department and provided a response to the Notice. There is no information before the Tribunal suggesting that there has been any other visa non-compliance by the Applicant.  Further, there is no information before the Tribunal that is adverse in relation to the Applicant’s compliance with the law generally. The Tribunal places some weight on these considerations in favour of not cancelling the visa. 

17. There is no evidence before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. As citizens of China, the Applicant, her husband, and daughter are entitled to reside in their home country.  The Tribunal notes that Ms Jun Min Tan is now an adult, and has travelled to China on a number of occasions since her arrival in Australian. Further, Mr Yingshi Tan has resided in China since departing Australia on 8 October 2014. 

18. The Tribunal considers that residence in Australia on a temporary visa such as the Subclass 165 (State/Territory Sponsored Investor (Provisional)) visa is by its nature temporary and will ultimately come to an end resulting in the visa holder's departure from Australia.

19. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the Applicant, her husband, and daughter may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal considers that the non-compliance by the Applicant was material to the grant of the visa, and that the provision by her of incorrect information to the Department is a factor that, when combined with the fact that the visa would have expired more than a year ago but for the cancellation, are factors that outweigh those considerations in the Applicants’ favour.

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 first named applicant’s Subclass 165 (State/Territory Sponsored Investor (Provisional)) visa.

22. The Tribunal has no jurisdiction with respect to the other applicants.

    Bridget Cullen
    Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.