Wang (Migration)

[2022] AATA 3465

Wang (Migration) [2022] AATA 3465 (9 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xinai Wang

REPRESENTATIVE:  Ms Ping Wang (MARN: 0963955)

CASE NUMBER:  2202988

HOME AFFAIRS REFERENCE:               BCC2022815992

MEMBER:L. Symons

DATE:9 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

Statement made on 09 September 2022 at 3:17pm

CATCHWORDS

MIGRATION – cancellation – Visitor (Class FA) visa – Subclass 600 (Visitor) – risk to the health, safety or good order of the Australia community – applicant declared full vaccination with an Australian approved vaccine – vaccine not recognised or approved by the Therapeutic Goods Administration in Australia – applicant subsequently received two doses of an approved vaccine in Australia – assistance with family childcare – previous compliant visits – decision under review set aside      

LEGISLATION

Migration Act 1958, ss 48, 98, 116, 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 3 March 2022 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 600 (Visitor) visa under s.116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) of the Act on the basis that the presence of the applicant in Australia is or may be, or would be or might be, a risk to the health, safety or good order of the Australia community, or a segment of the Australian community. 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, via video, on 8 September 2022 to give evidence and present arguments. The hearing was held as a joint hearing with the application of her husband, Mr Xinmin GUO, with the consent of both applicants. The Tribunal received oral evidence from Mr Xinmin GUO. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her migration agent, Ms Ping Wang, who did not attend the hearing.

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 and findings

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(i) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(e)(i) of the Act if the Minister or the Tribunal is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community is made out.

8. The applicant has filed with the Tribunal a copy of the Decision Record dated 3 March 2022 from the Department of Immigration (the Department). It indicates that the applicant stated in her Digital Passenger Declaration that she was fully vaccinated with an Australian approved vaccine. She attached her Travel/Health Certificate issued by the Peoples Republic of China to her Digital Passenger Declaration. It indicates that she had three doses of a Covid-19 vaccine, CHOCELL, in 2021. This vaccine is not recognised or approved by the Therapeutic Goods Administration in Australia.

9. The Department’s Decision Record indicates that in response to a Notice of Intention to Consider Cancellation of her Visitor visa, the applicant stated that she had the wrong vaccine, was in good health, she wanted to get the correct vaccine in Australia, she had come to Australia to help her child take care of his three children and her daughter-in-law would have to give up work to look after her three children. Having considered her response and the other evidence before him, the delegate was satisfied that grounds for cancellation under s.116(1)(e)(i) existed and cancelled her visa.

10. During the hearing, the applicant gave evidence that her migration agent acted on her behalf to seek an exemption to travel to Australia and prepared the Passenger Declaration on her behalf. She provided her migration agent with evidence of her vaccination status. She was not aware that the three doses of the vaccine she received in China were not approved in Australia and only found out about this after she arrived in Australia and was in quarantine. She subsequently had two doses of the Pfizer vaccine after she arrived in Australia. When the Tribunal explained to her that she was responsible for information provided to the Department by her migration agent who was acting on her instructions, she agreed. 

11. Having considered all the evidence, the Tribunal is satisfied that the applicant had not been fully vaccinated with an Australian approved Covid-19 vaccine when she arrived in Australia on 2 March 2022 and that her Digital Passenger Declaration was incorrect. The Tribunal is also satisfied that her presence in Australia was or may have been, or would have or might have been, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

13. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

14. With respect to those matters set out in PAM3, the Tribunal makes the following findings and observations.

    The purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling reason to travel to or remain in Australia?

15. The applicant gave evidence to the Department that she had come to Australia to help her child take care of his three children and her daughter-in-law would have to give up work to look after her three children.

16. The applicant gave evidence to the Tribunal that her son works hard. She came to Australia to help him by looking after his three children. She drops them off at school and picks them up after school. Their parents are their main carers but she looks after them during the day.

17. The applicant’s husband gave evidence that he has three granddaughters in Australia who are aged 8 years, 3 years and 11 months. His daughter-in-law was suffering from depression and her health was not good. She was unable to look after the three children. He and his wife came to Australia to visit their grandchildren. 

18. Having considered the evidence, the Tribunal accepts that the applicant and her husband travelled to Australia for the purpose of spending time with their family and assisting their son and daughter-in-law to care for their three children.  

19. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s Visitor visa.

    Extent of compliance with visa conditions

20. The records of the Department indicate that the applicant travelled to Australia as the holder of a Visitor visa on six occasions prior to her last arrival on 2 March 2022. There is no evidence before the Tribunal to indicate that she did not comply with the conditions of these visas.

21. During the hearing, the applicant gave evidence that she has never worked in Australia nor has she undertaken any studies or training in Australia. She has always “complied completely” with her visa conditions.

22. Having considered the evidence, the Tribunal accepts that the applicant has complied with the conditions of the visas granted to her.   

23. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s Visitor visa.

    Degree of hardship which may be cause to the applicant, her family members and others if her visa is cancelled

24. The applicant gave evidence to the Department that if her visa is cancelled her daughter-in-law would not be able to undertake paid work and would have to stay at home to look after her three children.

25. The applicant gave evidence to the Tribunal that if her visa is cancelled her grandchildren will have no one to look after them when their parents are working. She and her husband help their son and daughter-in-law by taking their children to and from school. She also does the laundry, cooking and household chores so that her son and daughter-in-law can work “properly” and make a contribution to the country.

26. The applicant’s husband gave evidence that his grandchildren are still very young and they cannot leave them. His daughter-in-law’s health is not good and his son is busy working.

27. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s Visitor visa.

    Circumstances in which the ground for cancellation arose

28. The circumstances in which the ground for cancellation arose are that the applicant arrived in Australia on 2 March 2022 without being fully vaccinated with an Australian approved Covid-19 vaccine despite stating in her Digital Passenger Declaration that she was fully vaccinated with an Australian approved vaccine. As a result, her presence in Australia was or may have been, or would have or might have been, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

29. The applicant gave evidence to the Tribunal that she had received three doses of a Covid-19 vaccine in 2021 that was approved in China. She provided evidence of this to her migration agent. She instructed her migration agent to obtain a travel exemption on her behalf so she could travel to Australia. Her migration agent lodged the Digital Passenger Declaration on her behalf.

30. Section 98 of the Act provides that a non-citizen who does not fill in his or her application form or passenger form 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. The fact that the applicant’s migration agent filled out her application for a travel exemption and her Digital Passenger Declaration does not negate the applicant’s responsibility to ensure that her Digital Passenger Declaration was filled in correctly.

31. The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s Visitor visa.

    Past and present behaviour of the applicant towards the Department

32. The Department’s Decision Record dated 3 March 2022 indicates that the applicant was compliant in her dealings with the Department.

33. The applicant gave evidence to the Tribunal that when she and her husband came to Australia on 2 March 2022, they had a travel exemption and evidence of being vaccinated in China. They had no idea that they were not compliant with Australian requirements. She found this out when they were taken to a hotel where they had to quarantine for a week. When she found out that they had taken a Covid-19 vaccine that was not approved in Australia, they agreed to have a Covid-19 vaccine that was approved in Australia. They had the first dose of the Pfizer vaccine on 7 March 2022.

34. The applicant stated that, after she and her husband were discharged from hotel quarantine, they self-isolated in a granny flat on their son’s property until 31 March 2022 when they received the second dose of the Pfizer vaccine.

35. Having considered the evidence, the Tribunal accepts that the applicant’s behaviour towards the Department has been co-operative and that she took steps to ensure that she was compliant with Australia’s Covid-19 vaccine requirements.

36. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s Visitor visa.

    Are there any consequential cancellations under s.140 of the Act?

37. There is no evidence before the Tribunal to indicate that there will be consequential cancellations under s.140 of the Act if the applicant’s Visitor visa is cancelled.

    Consequences of a decision to cancel the visa

38. If the applicant’s Visitor visa is cancelled, she will be subject to s.48 of the Act which means that she will have limited options when applying for further visas whilst in Australia and Public Interest Criterion 4013 which may prevent her from being granted particular temporary visas for a period of 3 years from the date of cancellation.

39. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of legislation and consequent cancellation of a visa.

40. The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s Visitor visa.

    International obligations

41. The Tribunal has considered whether Australia’s international obligations would be breached if the applicant’s Visitor visa is cancelled. The applicant gave evidence that there is no reason why she cannot return to China. There is no evidence before the Tribunal to indicate that Australia’s international obligations, including non-refoulement obligations, would be breached if her visa is cancelled. 

42. The Tribunal has considered the best interests of the applicant’s three grandchildren and what impact it would have on their best interests if her Visitor visa is cancelled. She gave evidence to the Tribunal that if her visa is cancelled there will be no one to take care of her three grandchildren when their parents are working. She and her husband help their son and daughter-in-law by taking their children to and from school. She also does the laundry, cooking and household chores so that her son and daughter-in-law can work. She gave evidence to the Department that her daughter-in-law would have to give up her job to care for her three children. Her husband gave evidence that he has a good relationship with his three grandchildren.

43. The Tribunal notes that the applicant and her husband are not permanent residents of Australia and therefore do not have visas that enable them to live in Australia permanently to care for their grandchildren or provide domestic assistance to their son and daughter-in-law. The applicant’s son and daughter-in-law would have to change their work arrangements or make alternate arrangements for childcare when the applicant and her husband are not in Australia to assist them with childcare.

44. However, the Tribunal considers that it would be in the best interests of the applicant’s grandchildren to be cared for by their grandparents, in the absence of their parents, rather than being cared for by strangers.

45. The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s Visitor visa.

    Any other relevant matters

46. The Tribunal is not aware of any other relevant matters that would impact on its decision.

47. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    decision

48. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

    L. Symons
    Member