Wang (Migration)

[2021] AATA 47

Wang (Migration) [2021] AATA 47 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Dandan Wang

CASE NUMBER:  2012163

HOME AFFAIRS REFERENCE(S):          BCC2019/4248385

MEMBER:Kira Raif

DATE:11 January 2021

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 11 January 2021 at 10:21am

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – application for or grant of visa in contravention of Act or another law – holder of contributory parent visa limited to applying for certain visa classes – discretion to cancel visa – advised by department that she could apply for partner visa – visa granted in error – substantial delay in issuing notice of intention to consider cancellation – immediate family, permanent resident husband and citizen child in Australia – potential hardship to applicant and husband and best interests of child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(f)
Migration Regulations 1994 (Cth), r 2.07AI

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 21 July 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in December 1990. She was granted the Partner Class UK visa on 19 May 2016. On 28 May 2020 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC, the Notice) because the delegate formed the view that there were grounds for cancelling the visa under s. 116(1)(f) of the Act. The applicant provided her response to the Notice and her visa was cancelled on 21 July 2020. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Mr Yan. 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 set aside.

   Relevant law

4. 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)(f).

5. A visa may be cancelled under s.116(1)(f) if the Minister is satisfied that the visa should not have been granted because the application for it, or its grant, was in contravention of the Act or of another law of the Commonwealth.

6. 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. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Contributory Parent (Temporary) Subclass 173 visa on 25 July 2013 and she entered Australia holding that visa on 6 September 2013. In August 2015 the applicant made the application in Australia for a Partner visa and the Class UK Partner (Temporary) visa, which was granted in May 2016.

8. In oral evidence to the Tribunal the applicant confirmed that she entered Australia in 2013 holding a Contributory Parent visa. After she married, she contacted Immigration Department and was advised she could apply for a Partner visa, which she did. In 2015 the Department accepted her Partner visa application as valid. In 2016 she was granted the Partner visa while her parents were granted the permanent Contributory Parent visas.

9. The Tribunal finds that the applicant was a holder of a Contributory Parent Subclass 173 visa and that she made an application for a Class UK Partner visa in Australia. Regulation 2.07AI prescribes the types of visas that a holder of a subclass 173 visa can apply for. These are limited to a Contributory Parent visa, a Medical Treatment visa or a Protection visa. A Partner visa is not a visa prescribed by r. 2.07AI.

10. The Tribunal finds that the applicant could not have made a valid application for a Partner visa in Australia. The Tribunal finds that the application and the grant of the Partner visa was in contravention of the Act.

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

    Consideration of discretion

12. 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

13. The applicant travelled to Australia holding a Contributory Parent visa as a member of the family unit of her parents. The applicant told the Tribunal that her parents and sister live in Australia. She has since been granted a Partner visa on the basis of her relationship with an Australian partner. The applicant has a child from that relationship, who is an Australian citizen. The Tribunal is satisfied that the applicant is fulfilling the purpose of her travel and stay in Australia as she maintains a close relationship with her family in this country. The Tribunal is also of the view that the presence of an Australian citizen child in this country and the applicant’s responsibilities for the daily care of the minor child constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

14. Nothing adverse is known about the applicant’s compliance with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

15. As noted above, the applicant’s partner and child are residing in Australia and are Australian permanent residents or citizens. The applicant’s parents and sister are also Australian permanent residents. The applicant states that her son has never lived away from her. The Tribunal accepts that the applicant’s separation from her minor child would result in significant hardship to the applicant and her family.

16. The applicant also states that if she is to leave Australia, her husband would have to look after their child and this may affect his ability to work. The applicant states that she runs a food business which may have to close if she was to leave Australia. The applicant states that she does not want to separate from her son, who needs her support and guidance at this age. The Tribunal accepts that evidence.

17. The applicant’s partner, Mr Yan told the Tribunal that the applicant came to Australia straight after completing university in China so she has no experience of the society in China and the applicant has been living in Australia for over seven years. Mr Yan referred to the emotional support he and the applicant provide to each other. The applicant also referred to the risk of Covid-19 if she was required to travel.

18. The Tribunal accepts that significant hardship would be caused to the applicant and her family if the applicant is separated from other family members in Australia.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

19. In her submission to the delegate and the Tribunal the applicant states that she made the application for the Partner visa relying on advice of a migration agent and an officer of the Immigration Department and she genuinely believed she could make a valid application in Australia. The applicant states that she acted in good faith and if her application was invalid, she should have been informed of that at the time of lodgement and if that was done, she could have made the application for the subclass 143 visa with her parents. The applicant states that it is unfair for her to be punished for an administrative error made by the Department in granting her the visa.

20. In oral evidence to the Tribunal the applicant states that she entered Australia holding a Contributory Parent visa and after marrying her husband, she approached the Immigration Department. An officer of the Department told her that she could make the application for a Partner visa and she also obtained advice from a migration agent who told her she could make the application. She made the application in reliance on such advice. The applicant also told the Tribunal that when she made the application for the Partner visa, she provided information about the visa she was holding on the application form. The Tribunal accepts the applicant’s evidence. In particular, the Tribunal accepts that the applicant sought advice from the Immigration Department and was informed that she could make the application for the Partner visa.

    Past and present behaviour of the visa holder towards the department

21. Nothing adverse is known about the applicant’s conduct.

    Whether there would be consequential cancellations under s.140

22. There are no persons who would be affected by consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

23. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant may become an unlawful non-citizen and liable to detention and removal from Australia. The applicant may be subject to an exclusion period if she were to make another visa application offshore and while she is able to make an application for a visa onshore, there are limited visas that she is able to apply for. The applicant would also lose any entitlements she had acquired as a permanent resident of Australia.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

24. The applicant has a minor child, born in May 2015, who is an Australian citizen. The Tribunal accepts the applicant’s evidence that the child has not resided outside of Australia. The Tribunal also accepts that the applicant provides daily care to the child. The Tribunal is of the view that it is in the best interest of the child to remain with his parents. The Tribunal acknowledges that if the visa is cancelled, it may lead to the separation of the child from one of his parents and that would be detrimental to the child in circumstances where the child has been under daily care and control of both parents. The Tribunal finds that the cancellation of the visa would be against the best interests of the child.

25. The applicant does not claim she would be subjected to any harm or persecution upon return to China. Mr Yan told the Tribunal that the applicant has no experience in China as she travelled to Australia straight after completing university and she would be alone in China. The Tribunal does not consider these circumstances would give rise to Australia’s protection obligations. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

    Any other relevant matters

26. The applicant refers to the length of time she has spent in Australia and the fact that her entire family are in Australia. She states that she has never been separated from her child, particularly at the time when he is about to enter school. The applicant suggested that her husband may not be able to cope with looking after the child. The applicant refers to the running of the business which requires her presence in Australia and lack of any support in China. The applicant refers to close emotional and financial links to Australia while Mr Yan refers to the financial and emotional ties the applicant has with Australia. The Tribunal accepts the applicant’s evidence.

27. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that there are grounds for cancelling the visa and the Tribunal places significant weight on the fact that the applicant was not entitled to make a valid application for the Partner visa. It may be said that she should not have the benefit of having made that application in Australia.

28. However, the Tribunal is mindful that in obtaining the Partner visa, the applicant had not in any way misled the Department and had not failed to disclose any information that led to the grant of the visa. There is no suggestion that the applicant had done anything to circumvent the Australian laws to obtain the visa. The fact that the applicant was a holder of a Contributory Parent visa at the time she made the application for the Partner visa was well known at the time that application was made. Indeed, the applicant’s evidence is that she sought advice from the Department after marrying her husband and was told she could apply for a Partner visa and she relied on that advice. She also told the Tribunal that she disclosed information about the Contributory Parent visa in her Partner visa application forms and there is nothing to contradict that evidence. It appears the visa was granted due to an administrative oversight to which the applicant had not contributed in any way. In the Tribunal’s view, the circumstances in which the ground for cancellation arose weigh very heavily against the cancellation.

29. The Tribunal accepts that significant hardship would be caused to the applicant and her family if the visa is cancelled, particularly because the applicant’s spouse and a five year old Australian citizen child reside in Australia and the child is in the applicant’s daily care. The Tribunal also accepts that financial hardship may be caused to the family by the cancellation because the applicant’s Australian business may be affected if she was required to leave Australia.

30. The Tribunal acknowledges the need to be able to correct any mistakes in visa grant, such as what has occurred here. However, that  power would have been more appropriately exercised if the mistake was ‘corrected’ (by cancelling the visa to which the applicant was not entitled) at the time of its grant or shortly thereafter. Here it took four years for the NOICC to be issued. In the Tribunal’s view, the substantial delay in issuing the NOICC and the cancellation of the visa in circumstances where all relevant information was before the Department at the time of visa grant with no misleading conduct on the part of the applicant, would cause undue hardship to the applicant and the family. The Tribunal has also formed the view that the best interests of the child would not be met by the cancellation of the visa.

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

    DECISION

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

    Kira Raif
    Senior Member