Wong (Migration)

[2023] AATA 3132

Wong (Migration) [2023] AATA 3132 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Veness Wong
Mr Yuga Yoo Kai Wong

REPRESENTATIVE:  Ms Cecilia Sien Lai Yek

CASE NUMBER:  2214533

HOME AFFAIRS REFERENCE(S):          BCC2020/2417629

MEMBER:Andrew McLean Williams

DATE:14 September 2023

PLACE OF DECISION:  Brisbane

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

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

Statement made on 14 September 2023 at 2:00pm

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – incorrect information in the visa application – identity details – period of unlawful residence – domestic violence – subsequent cancellation – impact upon the family business – best interests of the children – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

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 Home Affairs to cancel the first-named Applicant’s Subclass 100 (Spouse) visa under s.109(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The Delegate cancelled the visa on the basis that the Applicant had not provided complete information in support of her visa application. 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 visa was automatically cancelled, as a consequence of that cancellation, not by a ‘decision’ but instead 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 now has no jurisdiction with respect to the other Applicant.

4. The Applicants appeared before the Tribunal on 14 September 2023. The Tribunal also received oral evidence from the Applicant’s Australian husband, Mr Anthony James McKewin. 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 this review by Ms Cecilia Sien Lai Yek of Oakfair Lawyers, Box Hill, Victoria.

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. In the present case the Applicant was issued with a section 107 notice in the form of a Notice of intention to consider cancellation under section 109 (‘NOICC’), by the Department on 29 August 2022. Where a notice is issued that does not comply with the requirements in s.107, then 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 NOICC issued under s.107 did comply 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 NOICC, and if so, whether the visa should now be cancelled.

11. The non-compliance identified and particularised in the NOICC was non-compliance with s.101, arising as follows:

    ·Section 101 provides that visa applications are to be correct, and that a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are provided;

    ·On 5 October 2015 the Applicant lodged an application for a Combined Partner (subclass 309/subclass 100) Visa (by means of utilising form 47SP). On page 2 of the form 47SP, and in response to the question as to whether the Applicant is currently or had ever been known by any other names, the Applicant answered ‘yes’, and indicated that she was also known by the family name McKewin, by reason of her marriage.

    ·On Page 34 of the form 47SP, the Applicant answered ‘no’ to the question whether she had ever been removed, deported, or excluded from any country including Australia.

    ·Also on page 34 of the form 47SP, the Applicant answered ‘yes’ to the question whether she had ever overstayed a visa in any country including Australia, advising that she had overstayed a visitor visa ‘in 2009’.

    ·Identical answers to those given above were later provided by the Applicant on 8 October 2017, this time when the Applicant submitted a Partner Visa application – information for permanent stage processing on-line, providing further information for the assessment of her second-stage Partner (Permanent) (subclass 100) visa application.

    ·Subsequently, the Department received information that the Applicant had been previously known by the name Lee Lee Wong, and had applied for a change of name through the National Registration Department in Malaysia to change that name to her current name, Vaness Wong. The former name Lee Lee Wong had not been advised to the Department on either 5 October 2015, or 8 October 2017 as part of either of the aforementioned visa applications.

    ·The Applicant had also previously entered Australia on an Electronic Travel Authority (‘ETA’) (subclass 976) Visitor visa, on 12 October 2006, yet had subsequently overstayed that visa, and had thus become unlawful in Australia, not eventually departing until 19 May 2008, only after a Bridging Visa E (subclass 050) had been issued on 14 May 2008, on specific ‘departure’ grounds. The fact of that unlawful overstay in Australia in 2006 – 2008 was also a matter that was not disclosed by the Applicant during either of the aforementioned visa applications.

12. The Tribunal is satisfied that there has been non-compliance with the requirements of s.101 in the manner now described in the NOICC dated 29 August 2022. The Applicant should have advised of her former name, but did not do that, and should have advised that she had previously overstayed her tourist visa issued in her former name during 2006 – 2008, but did not advise of that, either. For these reasons, the Tribunal finds that there was an instance of non-compliance with s.101 by the Applicant in the manner now described in the s.107 notice.

    Should the visa be cancelled?

13. As the Tribunal has decided that there was non-compliance as described in the notice given to the Applicant under s.107, 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).

14. In exercising this power, the Tribunal must consider the Applicant’s response (if any) to the s.107 notice about the non-compliance, and must have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, these 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.

15. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered as 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 (the PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations, and other relevant matters.

16. In her response to the NOICC, the Applicant explained that whilst previously living in Malaysia she was in a domestically violent relationship, and that she had changed her name to her current name of Vaness Wong as part of her effort to escape from her former partner who is also the biological father of her eldest son Yuga, now nearly 15 years of age, who is a secondary visa applicant. The Applicant says that when she came to Australia she was afraid to disclose her former name of Lee Lee Wong, because the Malaysian community in Australia is very small, and she feared that her ex-partner might be able to find her if she disclosed her former name.  On 30 November 2014 the Applicant married her husband Mr Anthony James McEwin who is also the Applicant’s sponsor for her partner visa application. Now, the Applicant uses her married name of McKewin in Australia and is known by that name for all official purposes.

(a)     The correct information

1. The correct information is that the Applicant was previously known by the name Lee Lee Wong, which remained her name from birth until 1 December 2008 when it was officially changed to Vaness Wong. Also, it is correct that the Applicant had previously overstayed a travel visa in Australia issued in her former name Lee Lee Wong, and had not advised the fact of her name change in her more recent partner visa applications.

2. There has been a breach of section 101, such that the Tribunal now gives this consideration a reasonable measure of weight in favour of cancelling the visa.

(b)     The content of the genuine document (if any)

1. This consideration is not applicable, such that the Tribunal attaches no weight either in favour of cancelling the visa, or against cancelling the visa.

(c)     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

1. The granting of the Applicant’s Partner (Provisional) (subclass 309) visa, as well as the decision to grant the Applicant her Partner (Permanent) (subclass 100) visa was, at least in some part, based on the Applicant having provided incorrect answers in her dealings with the Department. 

2. Had the Department been properly alerted to the fact that the Applicant had previously out-stayed a prior visa in Australia then there was at least a chance that the assessing Delegate would have determined that the Applicant did not satisfy the requirements of Public Interest Criteria (‘PIC’) 4001. In that event the visa outcome may have been different.  The Tribunal therefore gives this consideration a reasonable measure of weight in favour of cancelling the Visa.

(d)     The circumstances in which the non-compliance occurred

1. The non-compliance with section 101 arose in the circumstances as described by the Applicant. When she was before the Tribunal giving her evidence the Applicant was tearful and clearly still remains adversely impacted by the trauma of the domestic violence of her prior relationship.

2. The Tribunal can readily understand why a person traumatised by domestic violence may have been so fearful as to not provide details of her former name, because of an abiding fear of her being traced, by her former partner. Although such a fear may not be objectively rational, fear of this kind is nonetheless readily comprehended as one aspect of the ‘trauma sequelae’ of domestic violence. The Tribunal accepts the explanation given by the Applicant and gives it a strong measure of weight in favour of not cancelling the visa.

(e)     The present circumstances of the Visa holder.

1. The Applicant is married to an Australian citizen since November 2014.  The Applicant has an infant child Lucas, born in 2021 who is an Australian citizen in circumstances wherein Lucas is still of a tender age where he is predominantly dependent on the nurturing of his mother, the Applicant. In addition the Applicant has another son Yuga now aged nearly 15 from her prior relationship. Yugu has lived continuously in Australia since his first arrival as an infant, and has spent the vast majority of his formative years - and has had all of his education - in this country. In the event that the applicant’s visa is cancelled then Yuga would also be required return to Malaysia, and this would be significantly disruptive to his education and future opportunities in life.

2. The Applicant and her husband operate a commercial market garden and the Applicant is primarily in control of that, as her husband goes to work each day in another family (pump and irrigation) business. The Applicant is both a Director and Secretary of the trust company that conducts that farming operation. In the event that the Applicant were to be required to return to Malaysia, then the market garden operation would have to close, and the Applicant’s husband would have to follow her back to Malaysia, and the related family pump and irrigation business - which has up to 9 employees -  would need to close as well. On arrival in Malaysia both the Applicant and her husband would then need to find employment and accommodation for themselves and their two sons, and there would be significant disruption and upheaval and economic hardship visited upon the family. The close and regular relationship between the two boys and their paternal grandparents would also be disrupted by reason that both boys would need to move to Malaysia with their parents. In consideration of all these things the Tribunal now attaches a very significant measure of weight in favour of not cancelling the Applicant’s visa.

(f)     Subsequent behaviour of the Visa holder concerning their obligations under the act

1. There is no evidence before the Tribunal of the Applicant being non-compliant with any other obligations arising under the Act.

(g)     Any other instances known to the delegate of non-compliance by the Visa holder

1. There is no evidence before the Tribunal of any other non-compliance by the Applicant.

(h)     The time that has elapsed since the non-compliance

1. The original breach arose 2015, in the circumstances now described. That is now eight years ago now. The Tribunal attaches further weight in favour of not cancelling the visa to this consideration.

1. Any breaches of the law since the non-compliance in the seriousness of those breaches

1. There is no evidence before the Tribunal of any other breaches of Australian law by the Applicant.

(j)     Any contribution made by the Applicant to the community.

1. The Applicant is a wife, mother, homemaker, farmer, and daughter-in-law.

2. All of those things are an important contribution to the fabric of the Applicant’s local community in Australia. There is evidence before the Tribunal that the Applicant is well-liked, and that she is well-regarded in her local community. The Applicant regularly donates excess produce from her farm to local charities.

3. The Tribunal now attaches a very strong measure of weight to each of these considerations as being further matters weighing against cancellation of the visa.

(k)     Whether there are other persons in Australia whose visas would, or may, be cancelled consequentially

1. In the event that the Applicant’s visa were to be cancelled, then the visa of her eldest son Yuga would also necessarily be cancelled, yet in circumstances in which Yuga is a child, who has done nothing wrong. The Tribunal now attaches further weight against visa cancellation to this consideration.

(l)     Australia has obligations under relevant international agreements that would or may be breached as a result of the Visa cancellation

1. The Tribunal must of necessity also consider Australia’s international obligations under international law which includes Australia’s obligations under the International Convention on the Rights of the Child. In the Tribunal’s assessment, cancellation of the visa will detrimentally impact on two children, one of whom is an Australian citizen and the other of whom has been a long-term resident of this country. The Tribunal now attaches a very strong measure of weight to this consideration in favour of not cancelling the Applicant’s visa.

(m)    There are mandatory legal consequences to a cancellation decision.

1. In the event that the Applicant’s visa is cancelled, the Applicant may be liable for detention under section 189, and also forcible removal from Australia under section 198.  Furthermore, the Applicant would become subject to the section 48 ‘bar’ - meaning that the Applicant would then have limited options to re-apply for other visas to Australia.   Public Interest Criteria PIC4013 will also become operable, meaning that the Applicant will also have difficulties obtaining even a further temporary visa for short-term visits to this country.  In all the circumstances, none of those consequences are even remotely desirable.  The Tribunal now attaches a strong measure of weight against cancelling the visa to this further consideration.

(n)     Any other relevant matters

1. There are no other matters before the Tribunal to consider.

2. The Tribunal has decided that there was non-compliance by the Applicant in the manner described in the notice given under s.107 of the Act, however when having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first-named Applicant’s Subclass 100 (Spouse) visa.

4. For reasons already elaborated, the Tribunal has no jurisdiction with respect to the other Applicant.

   Andrew McLean Williams
   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.

   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.

   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.