Tan (Migration)

[2018] AATA 4087

Tan (Migration) [2018] AATA 4087 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Juan Tan

CASE NUMBER:  1733209

DIBP REFERENCE(S):  BCC2016/2499870

MEMBER:Antoinette Younes

DATE:30 August 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 100 (Spouse) visa.

Statement made on 30 August 2018 at 4:03pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – bogus document – notarial certificate – suspected criminal record – ongoing police investigation – money repaid to former husband’s family – document examinations – decision under review set aside

LEGISLATION

Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014, Schedule 7

Migration Act 1958, ss 97-105, 107-109

Migration Regulations 1994

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.

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 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant has not complied with s 103 of the Act. Section 103 provides that:

   Bogus documents not to be given etc.

   A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

   * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 17 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6. 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

7. 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.

8. 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.

9. 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?

10. 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 103.

11. In the course of the hearing the Tribunal referred to the delegate’s decision record which the applicant had provided in support of the application for review. The Tribunal indicated that:

    (a)  On 29 November 2007, the applicant lodged a combined Partner visa application subclass 309 (Provisional) and subclass 100 visa (Migrant). In support of the application, the applicant provided an official translated document, namely, “Notarial Certificate Without Suffering Criminal Sanction” stating that the applicant had “no record of committing offences against the criminal laws during her residence in China until November 9, 2007”.

    (b)  Having met the relevant visa criteria, including those relating to character, the applicant was granted a subclass 309 on 25 January 2008. She arrived in Australia on 25 March 2008 as the holder of that visa.

    (c)  On 28 September 2010, in assessing the subclass 100 visa, the Department requested a Statutory Declaration from the applicant addressing the issue that she was involved in an “ongoing investigation by the Chinese police on a crime of swindling RMB 400,000 since 13 September 2008”.  On 1 November 2010, the Department requested from the applicant an original police certificate from China.

    (d)  On 22 February 2011, the applicant provided a copy of a penal clearance, issued on 15 February 2011, stating that the applicant had “no record of committing offences against the criminal laws during your residence in China until November 9, 2007”.

    (e)  On 28 May 2013, the Department made a further request for an original Notary Certificate of “No criminal Certificate from China”. On 12 June 2013, the applicant provided a Notarial Certificate (2013X.Y.B.Zi, No.3254) stating “This is to certify that Tan Juan had no criminal record during her period of residence in the People’s Republic of China up to May 31, 2013”.

    (f)    On 17 June 2013 and based on the information provided, including the Notarial Certificate, the applicant was granted the subclass 100 visa.

    (g)  Subsequent to the grant and in May 2015, the Department conducted a further integrity referral check concerning the Notarial Certificate. On 29 May 2015, the Chinese Public Security Bureau (PSB) advised that the Notarial Certificate (2013X.Y.B.Zi, No.3254) provided by the applicant is a bogus document as the applicant is a “recorded fugitive suspect” in China.  

12. Based on the information provided by the Chinese authorities, the delegate concluded that the Notarial Certificate (2013X.Y.B.Zi, No.3254) provided by the applicant in support of the subclass 100 visa application was a bogus document.  The visa was cancelled on that basis.

13. In the course of the hearing, in accordance with s 359AA, the Tribunal advised the applicant that there is in the Departmental file information relating to the investigations undertaken in relation to the Notarial Certificate (2013X.Y.B.Zi, No.3254). The Tribunal indicated that the information is essentially that the issuing authority of the Certificate provided the Certificate on the basis of a “statement of non-criminal record provided” by the PSB who confirmed that although both the “Case Registration Certificate and the Fugitive Registration Information are genuine”, the notarised police certificate for the applicant should not have been issued - the person apparently confirmed that the certificate was issued due to a procedural error as there is a “suspected criminal record” in relation to the applicant.

14. The applicant gave evidence that she had obtained the document lawfully as a “regular person”. She stated that she has never been notified by the Chinese authorities of any allegations and she was shocked and surprised to hear about those matters. She stated that she had later authorised her father and a lawyer in China to look into the matter. She stated that they confirmed with the PSB that she does not have any criminal record.  She stated that the PSB confirmed that the Certificate was a valid document. She stated that her lawyer in China was advised that there had been a mistake and that all documents had been obtained by legal means.

15. The Tribunal asked the applicant to explain the reasons for not responding to the Departmental request of 28 September 2010, to provide a Statutory Declaration addressing the issue that she was involved in an “ongoing investigation by the Chinese police on a crime of swindling RMB 400,000 since 13 September 2008”. The applicant stated that she did provide a Statutory Declaration. The Tribunal subsequently confirmed this; there is a Statutory Declaration in file OSF2007/089089 responding to the Department.

16. The Tribunal asked the applicant about the allegations relating to the swindling of the RMB 400,000. The applicant repeatedly responded that she had never received any notifications from the Chinese authorities about those allegations. She stated that she only knew when she was notified by the Department.

17. The Tribunal asked the applicant what she knew about those allegations. She gave evidence that she met her former husband who sponsored her in 2005 and they communicated for about six months. She stated that on 7 August 2008, he went to China.  They met her and he proposed. She stated that he wanted to buy property in China and as she had no income, he suggested a joint purchase. On 21 March 2008, he found two units and he paid a deposit of RMB 130,000 for each.

18. The applicant stated that the couple married in China and the former husband returned to Australia but he authorised her to deal with the purchase of the two units. She stated that around 21 or 22 June 2008, she met with the agent handling the sale of the two units and he told her that it was impossible for her husband to obtain a loan in China because he was not working there. The agent advised her that she could sign the contracts in her name. She stated that she consulted her husband who was concerned about losing his deposits and he told her to handle all in her name. She stated that as she was not earning any money, she could not get a loan to finance the purchases so her husband decided that they finalise the purchase for one of the units only and use the deposit that had been paid for the other towards the purchase of that unit. She stated that her husband at all times knew what was going on and he consented.

19. The applicant gave evidence that their marriage broke down around mid-June 2008 and they were divorced in March 2012. The Tribunal asked the applicant if the Department was aware that they had divorced and she stated that the Department [knew]. The Tribunal indicated that it would obtain further information to confirm the applicant’s version. The Tribunal notes that information in file number OSF2007/089089 supports the applicant’s version of events. 

20. The applicant gave evidence that subsequent to the breakdown of the marriage, there was a dispute between the couple about money and the husband made serious allegations about her swindling money from him. She stated that she contacted him and told him that she could return the deposit but he did not take her phone calls. She stated that she has continued to pay the mortgage and reiterated that she has never received any documents from the Chinese authorities in relation to those allegations. She stated that her father has advised her that the money has been repaid to her former husband’s relatives in China.

21. At the hearing, the applicant provided the following documents:

    ·Notarial Certificate dated 16 July 2018 - (2018) X. Y. B. Zi, N0. 5654 and its translation certifying that the applicant has no criminal record in China during her residence up until 31 May 2013. 

    ·Notarial Certificate dated 16 July 2018 - (2018) X. Y. B. Zi, N0. 5589 and its translation certifying that the applicant has no criminal record in China during her residence up until 13 July 2018.

    ·Certificate dated 16 July 2018 from Yueyang Command, PSB and its translation referring to the applicant’s identification card [number] and indicating that the applicant “has never been any police record of “fugitive suspects”, no record of police investigation (Li An) no record of criminal conviction.”.  The certificate referred to the Notarial Certificate serial number 2013 X. Y. B. Zi No. 3254 and that it was “issued correctly and validly in accordance with the relevant law of the People’s Republic of China”.

    ·Certificate dated 16 July 2018 from Yueyang Command, PSB and its translation referring to the applicant’s identification card [number] stating that the applicant has no criminal record and that an incorrect certificate was issued in 2015 but had now been withdrawn.

22. The Tribunal advised the applicant that given that the central issue in the matter relates to the provision of a bogus document, the Tribunal is of the view that it is reasonable to have the documents examined. The applicant continued to reiterate that the documents are genuine.

23. Subsequent to the hearing, the applicant provided further documents including Notarial Certificates numbers 5654, 5589, 5700, and 5704. The Tribunal sent those certificates to document examination and on 27 August 2018, the Tribunal received advice that all the documents are genuine. The advice received by the Tribunal also indicated, and consistent with the applicant’s evidence, that the applicant had a dispute but this was a civil matter.

24. There is information before the Tribunal that although the PSB had issued the Notarial Certificate (2013X.Y.B.Zi, No.3254), the Certificate should not have been issued due to claims of “suspected criminal record” in relation to the applicant. This is contrary to subsequent investigations and document examinations which have confirmed that the applicant does not have criminal records in China.  The Tribunal gives significant weight to the results of the recent document examinations.  Consequently, the Tribunal is not satisfied on the evidence that the Notarial Certificate (2013X.Y.B.Zi, No.3254) is a bogus document as defined.  The Certificate was lawfully issued by the PSB and the information in the document is correct as confirmed by genuine Notarial Certificates 5654, 5589, 5700, and 5704.

25. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.  As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, the Tribunal concludes that the decision under review should be set aside.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

    Antoinette Younes

    
    Senior 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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.