Xiao (Migration)

[2021] AATA 4455

Xiao (Migration) [2021] AATA 4455 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinming Xiao

CASE NUMBER:  2111684

HOME AFFAIRS REFERENCE(S):          BCC2021/1414933

MEMBER:Kira Raif

DATE:1 November 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 (155) (Five Year Resident Return) visa.

Statement made on 01 November 2021 at 7:09pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – overstaying a previous Student visa – brief periods of unlawful residence – immigration history – genuine mistake – breach had insignificant effect on visa eligibility – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 5(1), 101-105, 107-109, 140, 501
Migration Regulations 1994, r 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 applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in July 1986. He was granted a Business visa in October 2016 and a Resident Return visa (RRV) in May 2021. In July 2021 the applicant was issued with the Notice of Intention to consider Cancellation (NOICC) as the delegate formed the view that he had not complied with s. 101 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. On 1 October 2021  the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 October 2021. On 21 October 2021 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. The Tribunal invited the applicant to provide written submission with respect to discretionary considerations and he has done so on 1 November 2021. This matter has therefore been determined on the evidence available to the Tribunal.

   Relevant law

4. 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.

5. 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.

   Did the notice comply with the requirements in s 107?

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s 107. The Tribunal is satisfied that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The applicant provided to the Tribunal a copy of the primary decision record. it indicates that he made the application for the Resident Return visa (RRV) in April 2021 and gave the following answers in that application:

   -in response to a question whether he had ever overstayed a visa in any country, including Australia, the applicant stated ‘no’,

   -the applicant signed a declaration that he had read and understood the information provided in the application and that he had provided complete and correct information in every detail on the form.

9. The applicant was granted the RRV on 31 May 2021. The primary decision record indicates that the applicant had previously overstayed his Student visa and a Bridging C visa. It is stated that in October 2011 the applicant was granted a Student visa which ceased on 30 September 2012. The applicant did not hold a visa until 2 October 2012 when he was granted a Bridging D visa. It is stated that the applicant was aware of his status as an unlawful non-citizen because he had communicated with the Department.

10. The primary decision record also indicates that in November 2013 the applicant was granted a Bridging C visa in relation to an application for a substantive visa which was subsequently withdrawn. That bridging visa ceased on 31 December 2013 and the applicant remained in Australia as an unlawful non-citizen until 7 January 2014 and the delegate concluded that the applicant had overstayed his Bridging C visa, as well as the Student visa.

11. The delegate found that the applicant provided an incorrect answer when stating that he had not overstayed a visa in any country including Australia. The delegate found that there was non-compliance with s. 101 of the Act.

12. In his responses to the NOICC the applicant submits that the non-compliance was a trivial error resulting from his failure of recollection, rather than an attempt to mislead. The applicant notes that the non-compliance would not have affected the outcome of the application. The applicant notes that there was only one day’s delay before he applied for the Student visa and he could not recall the circumstances which occurred ten years ago. With respect to the Bridging visa, the applicant submits that he did lodge the application before his visa expired, which occurred during the Christmas period. The applicant submits that he was not subject to the character assessment when seeking the RRV and the questions about his overstay were irrelevant to that visa.

13. The Tribunal acknowledges the applicant’s submissions (and has much sympathy for those) but does not accept these. The Tribunal does consider that the legislation is drafted in such a way that any non-compliance, no matter how trivial it may seem, is capable of establishing that a ground for cancelling the visa exists. Relevantly, s. 101 simply states that the applicant must complete the form in a way that no incorrect answers are given or provided. There is no reference in that provision to matters of importance or relevance to the decision to grant or refuse the visa. There is no requirement to assess the significance of the incorrect answer. All of these matters may relevant to the exercise of discretion but not, in the Tribunal’s view, to establishing if the ground for cancellation exists. The applicant appears to concede that in his submission to the Tribunal of 21 October 2021.

14. The Tribunal finds that the applicant had overstayed his visas in Australia on two occasions. The fact that such overstay was for brief periods does not negate the fact that the overstay did occur. The Tribunal therefore finds that the applicant gave an incorrect answer when claiming he had not overstayed in any country including Australia. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided. The Tribunal finds there was non-compliance with s. 101 of the Act.

    Should the visa be cancelled?

15. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, 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).

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

    The correct information

17. The correct information is that the applicant had overstayed his visas in Australia.

    The content of the genuine document (if any)

18. This is not relevant in the present case.

    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

19. The Special Return criteria do not appear to apply in relation to the RRV. However, a period of overstay may have been relevant to the assessment of the applicant’s character, for the purpose of s. 501 of the Act. The full information about the applicant’s previous overstay was not disclosed in the application form. It is not for this Tribunal to determine whether or not the applicant would have been granted the visa if the correct information was known (and the Tribunal acknowledges that the periods of overstay on both occasions were minimal). The Tribunal finds that the decision to grant the visa was based, in part, on incorrect information.

    The circumstances in which the non-compliance occurred

20. The applicant claims that the first overstay, which was only for a very brief period of time, occurred nearly ten years ago and he could not recall that it had occurred. With respect to the second overstay, the applicant states that he did lodge the application for the Bridging visa before his visa expired and there was a delay in processing. As the information about the applicant’s immigration history would have been recorded on the Department’s system and may have been made available to the delegate, there appears to be little purpose in the applicant not disclosing the information. As such, the Tribunal accepts the applicant’s claim that the provision of incorrect answers was due to a genuine mistake or failure of recollection, rather than an intentional desire to mislead.

    The present circumstances of the visa holder

21. The applicant has been living in Australia since 2006, first as a holder of a temporary visa and subsequently permanent visas. His evidence to the Tribunal is that he lives with his wife and two children (born in 2011 and 2015). The applicant presented to the Tribunal the children’s birth certificates and school records and awards.

22. The applicant states that he and his partner operate a business and evidence of the business operations has been submitted to the Tribunal. The Tribunal accepts that evidence.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

23. Nothing adverse is known about the applicant’s behaviour under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

24. There are no other known instances of non-compliance.

    The time that has elapsed since the non-compliance

25. The application for the RRV was made in April 2021 and only a short time passed since the non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

26. There are no known breaches of the law.

    Any contribution made by the holder to the community.

27. The applicant refers to the contribution he has made through employment, as well as his support for his family. The Tribunal accepts that evidence.

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

    Whether there would be consequential cancellations under s.140.

29. There are no persons whose visas would be subject to consequential cancellation.

    if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

30. The applicant has two minor children whose visas have also been cancelled. In his submission to the Tribunal of 1 November 2021 the applicant refers to the children’s settlement in Australia. The applicant states that the cancellation of the visa would have ‘the inevitable effect” and a “significant and adverse impact upon two minor children” who are engaged with the wider community and are settled in Australia. The applicant refers to the hardship and disruption upon the children, if they are required to leave Australia. The Tribunal has found these submissions to be extremely vague and containing little more than generalised statements without sufficient detail. The applicant presented very limited evidence concerning his children’s circumstances (other than the fact that  they attend school) and their settlement in Australia. The Tribunal acknowledges school reports and awards and accepts that the children attend school and are progressing well academically. However, there is very little evidence before the Tribunal about other aspects of the children’s lives, including any links they have in Australia and overseas, any friendships they may have formed, interactions with extended family, their cultural practices, language skills, etc. There is no evidence of the children’s involvement in any activities or participation in any groups. The Tribunal does not consider that settlement in Australia can be established by school attendance alone. All of this information would have assisted the Tribunal in determining what the best interests of the children are.

31. The primary decision record indicates that the children are nationals of China and there is no evidence before the Tribunal that they are Australian citizens. As such, they would be able to retain (or obtain) a hukou, should they be required to return to China. The applicant confirmed in his written evidence to the Tribunal that his partner’s visa has also been cancelled. As such, it seems possible that the children may be able to travel to China with both of their parents, if the visas remain cancelled. That is, the cancellation of the applicant’s visa need not result in the family being separated. It appears that the children will continue to be cared for by both parents, irrespective of their country of residence. As nationals of China, the children will have access to all the services that the Chinese national children have.

32. The applicant refers to the disruption and a significantly adverse impact that the cancellation of the visa would have. But in the Tribunal’s view, these are nothing but broad statements that have not been particularised by the applicant in any way and the Tribunal is not prepared to accept such broad claims without any specific information, nor supporting evidence, being offered.

33. It appears that whether the children reside in Australia or in China, they would have the support of both parents. In the Tribunal’s view, the best interests of the children require the presence of both parents, but it is not necessary for the children to reside in any particular country to receive the parental support. In this case, the visas held by both parents had been cancelled, so that the family may travel as a family unit.

34. The Tribunal does not accept on the very limited evidence before it that the children will experience adverse effects or hardship if the applicant’s visa is cancelled. On the limited evidence before it, the Tribunal has formed the view that the best interests of the children would not be adversely affected by the cancellation of the applicant’s visa. 

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

35. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. The Tribunal does not consider that they do. The applicant’s partner and children reside in Australia but have had their visas cancelled. The entire family may choose to return to China or may seek other visas in Australia. The Tribunal does not consider that the family unity obligations would be breached in this case by the cancellation of the visa. The Tribunal finds that  Australia’s international obligations would not be breached as a result of the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

36. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to some visa applications made offshore. The cancellation of a permanent visa would result in the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia. If the applicant does not hold a permanent visa, he cannot sponsor others for the Australian visas.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

37. The applicant has not raised other matters before the Tribunal and, as noted above, provided extremely limited evidence to the Tribunal concerning his present circumstances.

38. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant completed the application form in a way that incorrect answers were given or provided and therefore that he has not complied with s. 101 of the Act, giving rise to a ground for cancelling his visa under s. 109 of the Act. However, in the particular circumstances of this case, the Tribunal has decided that the breach was insignificant because it is unlikely to have affected the applicant’s eligibility for the visa.

39. The Tribunal acknowledges that the applicant has been living in Australia for approximately 15 years and is settled in this country. He lives with his partner and children and although the Tribunal has formed the view, on the very limited evidence before it, that the best interests of the children would not be adversely affected by the cancellation of the applicant’s visa, the Tribunal accepts the applicant’s evidence that the children are attending school and there may be some disruption to their lives if the family was required to return to China. The Tribunal acknowledges that the family prefers to remain in Australia. While the decision in the present case will not affect the outcome of review in relation to the visas held by the applicant’s spouse and children, the Tribunal is mindful that the applicant will be able to sponsor his partner and children for other visas if he retains his RRV and that opportunity will be lost if the visa remains cancelled.

1. The Tribunal is not satisfied on the limited evidence before it that hardship would be caused to the applicant or his family by the cancellation of the visa and has formed the view that Australia’s international obligations would not be breached by the cancellation.

2. Overall, the Tribunal has determined that the nature of the breach (which appears to have been insignificant) and the fact that it had little or no bearing on the decision to cancel the visa outweigh other considerations. That is, the Tribunal considers it important that the visa is likely to have been granted if the correct information was known. Given the length of the applicant’s stay in Australia and the extent of his settlement, the Tribunal determines that the visa should not be cancelled. 

   Conclusion

3. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

   Kira Raif
   Senior Member