Xu (Migration)

[2022] AATA 5141

Xu (Migration) [2022] AATA 5141 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chang Xu

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  2118845

HOME AFFAIRS REFERENCE(S):          BCC2021/1812294

MEMBER:Andrew McLean Williams

DATE:15 November 2022

PLACE OF DECISION:  Brisbane

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 15 November 2022 at 7:27pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – ground for cancellation – incorrect information in previous visa application – fraudulent employment sponsorship arrangement – information provided by primary applicant – deemed provision – consideration of discretion – visa grant based on incorrect information – present circumstances of the visa holder – time elapsed – best interest of the child – social and educational upheaval – degree of hardship – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 98, 100, 101, 107, 107A, 109
Migration Regulations 1994 (Cth), 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 (Cth) (‘the Act’).

2. The Applicant is a 17 year old female citizen of China, who has now lived in Australia continuously, since 2015.

3. The Delegate cancelled the visa on the basis that the Applicant had been included in an application for an ENS (Subclass 186) visa, as a dependent child on her father’s visa application, in circumstances in which information had been provided that purported that the applicant’s father would be employed full-time for at least two years by a nominated employer. After the visa had been granted, new information came to the notice of the Department that revealed that the offer of employment to the Applicant’s father was a sham arrangement, and there was, in fact, no genuine offer of employment. On that basis the Delegate determined that the Applicant’s visa application contained incorrect information, contrary to the requirements of s.101(b) of the Act (‘ground for cancellation’).

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 27 October 2022.  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 Mr Christopher Livingstone, Solicitor, of Christopher Livingstone and Associates.

5.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should now be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

6.Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these provisions require that non-citizens provide correct information in their visa applications and on their in-bound passenger cards; not to provide ‘bogus documents’ and to notify the Department of any incorrect information of which they become aware; and to notify the Department of any relevant changes to their circumstances.

7.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.

8.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 on 8 November 2021 in the form of a Notice of Intention to Consider Cancellation (‘NOICC’) complied with the statutory requirements.

Was there non-compliance as described in the NOICC?

9.The issue before the Tribunal is whether there was non-compliance of the type described in the NOICC, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the NOICC was non-compliance with s.101(b) of the Act, arising in the following circumstances:

• Section 101(b) provides that a non-citizen must fill out or complete his or her application form in such a way that no incorrect answers are given or provided;

• Section 98 provides that a non-citizen who does not fill out their own visa application or in-bound passenger card is still taken to have done so, if it is filled out by another person, on their behalf;

• Section 100 of the Act provides that information is incorrect even if at the time of giving it the person did not know the information to be incorrect;

• Section 107A provides that incorrect information provided in relation to a prior visa may also afford grounds for cancellation of a person’s current visa, under s.101(b);

•     On 21 October 2014, the Applicant’s father Mr Siqin Xu had caused to be filled out a visa application for an ENS (Subclass 186) visa, and specified that he had been nominated for at least 2 years full-time employment by Miller & James (Real Estate) Pty Ltd.  Subsequently, during an ICAC hearing in New South Wales on 24 September 2020 the managing director of Miller & James (Real Estate) Pty Ltd admitted that the employment sponsorship arrangement for Mr Siqin Xu was a fraudulent arrangement, and there was never a genuine offer of full-time employment for a minimum period of two years.

10.On the basis of the foregoing, the Tribunal is satisfied that the answer given by Siqin Xu as the primary visa applicant - to the effect that he had a full-time offer of employment for a minimum period of two years with Miller & James (Real Estate) Pty Ltd - was ‘incorrect information’; and that because of the operation of ss.98 and 100 of the Act the present applicant is also deemed to have provided incorrect information, contrary to the requirements of s.101(b) of the Act. The Tribunal further notes that no objection has been raised by the Applicant with the validity of the NOICC, or in relation to the accuracy of the particulars of non-compliance specified thereunder.

11.For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the Applicant arising in the manner described in the NOICC.

Should the visa be cancelled?

12.As the Tribunal has decided that there was non-compliance in the manner 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).

13.In exercising this power, the Tribunal must consider the Applicant’s response (if any) to the s.107 notice, 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.

14.While these factors must be considered, they do not represent an exhaustive statement of all 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 as 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 any other relevant matters.

The correct information/whether the visa was granted wholly or partly on the basis of the incorrect information.

15.The correct information is that the Applicant’s father did not have a genuine offer of full-time employment for at least two years.  The Applicant’s visa was granted substantially because she was a child accompanying her parents to Australia and her father, as the primary visa applicant, had been granted his visa because of that incorrect information.

The present circumstances of the visa holder

16.The Applicant who is now in her final year of high school and currently undertaking her HSC remains in Australia with her brother aged 6, and her mother, who has separated from the Applicant’s father, Mr Siqin Xu, in 2020.  Mr Siqin Xu returned to China in 2018.  When before the Tribunal, the Applicant indicates that she was a child aged only about ten or eleven when her father made arrangements to come to Australia and she had no idea that he was party to any kind of visa fraud activity.  All of the Applicant’s high school education has occurred in Australia, and the Applicant is now thoroughly enmeshed in the Australian educational system and culturally associates more with Australian society than with her native China.  The Applicant has little realistic prospect of successfully returning to a tertiary education in China, and it seems probable that the opportunity for a tertiary education would be denied to the Applicant in the event that she was now required to return to China.  In addition, over the past two years the Applicant has experienced ongoing mental health issues in consequence of anxiety symptoms requiring treatment, including some periods as an in-patient in a psychiatric ward.  The Applicant is extremely worried and anxious about the fact that her further education prospects may be in jeopardy, in the event that she is now required to return to China, given that all of her high school education has been undertaken in Australia and the Applicant has no familiarity with - or exposure to - the educational curriculum for tertiary entrance in China.

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

17.No behaviour by the Applicant that is not in conformity with obligations arising under Subdivision C of Division 3 of Part 2 of the Act has been drawn to the Tribunal’s notice by the Department. The Applicant’s provision of incorrect information is a deemed provision, rather than one that arises in consequence of a deliberate step taken by her. Some weight against visa cancellation arises because of these circumstances.

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

18.No other instances of non-compliance by the Applicant as may be known to the Minister have been drawn to the attention of the Tribunal.  The Tribunal therefore proceeds on the premise that there have been no other instances of non-compliance, and some weight against visa cancellation arises because of that.

The time that has elapsed since the non-compliance.

19.The provision of incorrect information in breach of s.101(b) of the Act occurred on 21 October 2014, more than eight years ago now and the Applicant had no participative role in the provision of incorrect information, given that she was still only a young girl at the time. Some weight against visa cancellation must attach to the effluxion of time.

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

20.No information has been drawn to the Tribunal’s notice suggesting that the Applicant is in breach of any other Australian laws.  Some weight against visa cancellation arises because of that.

Any contribution made by the holder to the community

21.The Applicant is busy at school studying for her HSC.  There is evidence before the Tribunal indicating that the Applicant has a part time job and is active socially and engaged in music and other school activities.  Some further weight now attaches to this consideration against visa cancellation.

Whether there would be consequential cancellations under s 140.

22.The cancellation of the Applicant’s visa will not result in any consequential cancellations under s.140 of the Act. This consideration therefore attracts only neutral weight.

The best interests of any children impacted by the prospect of a visa cancellation

23.The Applicant is still a child, and faces the prospect of significant social and educational upheaval in the event that her visa were to be cancelled.  In the Tribunal’s assessment, Chang’s best interests now attract significant weight against cancellation of her visa.

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

24.This consideration does not appear to be applicable and thus attracts only neutral weight.

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.

25.If the visa were to be cancelled the Applicant would become an unlawful non-citizen and may be liable to detention under s.189 and deportation under s.198, and would become subject to the visa application bar under s.48.  These considerations do now attract further weight against visa cancellation.

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

26.No specific evidence of the extent of any financial hardship that may be caused to the Applicant or other family members in the event of a forced return to China. Nevertheless, there is evidence that the Applicant would be caused considerable social upheaval and educational disruption and the Tribunal takes the view that these are each matters that now sound in hardship.  Given the period of time that the Applicant has now spent in Australia it may also be inferred that some financial hardship may arise in the event that she were now to be required to return to China. Some further weight against visa cancellation arises because of this consideration.

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

DECISION

28.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.

Andrew McLean Williams
Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (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.

2. Interpretation

   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).

3. Completion 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.

4. Information 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.

5. Incorrect 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.

6. Visa 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.

7. Notice 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.

1. Decision 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.

2. Cancellation 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.