SUN (Migration)

[2017] AATA 973

SUN (Migration) [2017] AATA 973 (14 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuqing SUN

CASE NUMBER:  1620203

DIBP REFERENCE(S):  BCC2015/1818501 BCC2016/3904213

MEMBER:Rieteke Chenoweth

DATE:14 June 2017

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 14 June 2017 at 11:58am

CATCHWORDS

Migration – Cancellation – Spouse visa – Subclass 820 – Bogus document/incorrect information – Condition precedent to the grant of visa – Applicant’s visa cancelled subsequent to mother-in-law’s visa cancellation – Applicant sponsored by mother-in-law’s son on spouse visa – No criterion for spouse visa requiring mother-in-law to hold a visa

LEGISLATION

Migration Act 1958, ss 101(a)(b), 107, 109(1), 140(2)

CASES

ARA v MIBP [2016] FCCA  2154

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 delegate cancelled the visa on the basis that the delegate considered that the applicant held a visa only because her mother-in-law, Ms Liyuan Zhang whose visa was cancelled held a visa. 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. The applicant appeared before the Tribunal on 26 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Liyuan Zhang, the mother-in-law of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The matter was heard together with the application by Ms Liyuan Zhang concerning the cancellation of her visa.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. Ms Liyuan Zhang, the mother-in-law of the applicant submitted an application for a combined class UK/BS subclass 820/801 Partner visa with the Department. On this application and a number of associated forms Ms Liyuan Zhang either failed to answer questions or provided incorrect answers to questions. Accordingly, the delegate considered there had been non-compliance with s.101(a) and (b) of the Act.

10. In her evidence to the Department and at the hearing before the Tribunal Ms Liyuan Zhang agreed that there had been non-compliance. At the hearing Ms Liyuan Zhang submitted that although there had been non-compliance with s.101 (a) and (b) of the Act the visa should not be cancelled.

11. Ms Yiqing Sun is the spouse of Mr Jianxiang Chao, who is the son of Ms Liyuan Zhang and who was granted  the 820/801 visa on the basis of his being a  member of the family unit of Ms Liyuan Zhang. Mr Jianxiang Chao subsequently sponsored his wife on a prospective marriage visa and the couple were married in 2013.

12. The issue before the Tribunal is whether Ms Yiqing Sun’s visa should be cancelled under s. 140(2) of the Act on the basis that she held a visa only because her mother-in-law, Ms Liyuan Zhang whose visa was cancelled held a visa.

13. Section 140 (2) provides the delegate may cancel, without notice, visa that is held by another person only because of the visa held by the first person.

14. In ARA v MIBP [2016] FCCA  2154, the Court said:

    The word only does not mean solely in s. 140(2) but rather, means that the fact of another person holding a visa was a condition precedent to the grant of the visa. It may not be the only condition for the visa granted but it is the material condition for the purposes of this subsection. Subsection 140(2) is designed to ensure a liability for cancellation arises materially with the applicant’s visa is held because of the connection with another person whose visa has now been cancelled.

15. On this reasoning, Ms Liyuan Zhang’s visa was not a condition precedent to the grant of the applicants matter. It was a factual circumstance that, as it turned out, enabled Ms Liyuan Zhang’s son to sponsor the applicant, but there was no criterion for the spouse visa requiring Ms Liyuan Zhang to hold a visa.

16. In any case, the decision to cancel Ms Liyuan Zhang’s visa has been set aside and on this basis it follows that even if s.140(2) did allow cancellation of the applicant’s visa as a result of the cancellation of Ms Liyuan Zhang’s visa cancellation, that ground for cancellation does not apply.

    DECISION

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

    Rieteke Chenoweth
    Member

    
    

    ATTACHMENT – Relevant Extracts from the Migration Act 1958:

    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.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    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.