Yang (Migration)

[2019] AATA 4940

Yang (Migration) [2019] AATA 4940 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lili Yang

CASE NUMBER:  1908232

DIBP REFERENCE(S):  BCC2016/955993 BCC2019/1279456

MEMBER:Helena Claringbold

DATE:5 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Partner (Provisional) (Class UF) visa.

Statement made on 05 November 2019 at 12:10pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – ground for cancellation – consequential cancellation – sponsor’s visa cancelled – consideration of discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 March 2019, a delegate of the Minister for Immigration and Home Affairs cancelled Ms Lili Yang, the applicant’s, Subclass 309 Partner (Provisional) (Class UF) visa under s.140(2) of the Migration Act 1958 (the Act).

2. On 12 August 2019, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 14 October 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zhang. The hearing was conducted as a combined hearing with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case files and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Cancellation Power

8. Section 140(2) of the Migration Act 1958 (the Act) allows the Minister to cancel a visa, if that person holds a visa, only because another person holds a visa and that visa has been cancelled.

9. Examples of persons whose visas may be cancelled under s.140(2) include visa holders who were sponsored by a person whose visa is cancelled (for example, Prospective Marriage, Partner and other family visa holders) and visa holders who satisfy a criterion that involves another visa holder.

   Is there a ground for cancellation?

10. Ms Yang is a national of China. On 16 September 2016, Ms Yang was granted a Partner (Provisional) (Class UF) visa. The application for the visa was sponsored by Mr Zhonglin Zhang, the applicant’s spouse. On 29 March 2019, Mr Zhonglin Zhang’s visa was cancelled. The Tribunal is satisfied that there is a ground for cancellation under s.140(2) of the Act.

    What is the purpose of the visa holder’s travel to and stay in Australia?

11. On 29 February 2016, Ms Yang lodged a Combined Partner (Subclass 309/100) visa application, sponsored by Mr Zhonglin Zhang, the primary visa holder. On 16 September 2016, Ms Yang was granted the Subclass 309 visa.  She subsequently entered Australia to live with Mr Zhang in Australia.  

    What is the degree of hardship that may be caused to the visa holder and any family members?

12. Ms Yang has lived in Australia for approximately three years. As a consequence she may have established ties with the Australian community. Should her visa be cancelled she would no longer have permission to live or work in Australia and may experience emotional distress and anxiety. She told the Tribunal that she may find it difficult to find employment in China.

    What were the circumstances in which the ground for visa cancellation occurred?

13. The grounds for cancellation arose because Mr Zhang, the sponsor’s visa was cancelled under s.109 of the Act. As Mr Zhang’s visa has been cancelled, he no longer holds the visa that permitted the grant of Ms Yang’s partner visa.

    What is/was the visa holder’s past and present behaviour towards the department (for example, whether she has been truthful in statements or applications made to the department or has previously complied with visa conditions).

14. There is no information to suggest that Ms Yang has presented in an unfavorable manner.

    Legal consequences of a decision to cancel the visa

15. A cancellation of the visa holder’s visa may see the visa holder become an unlawful non-citizen.  She could be detained and removed from Australia. These consequences are a result of the Mr Zhang’s visa being cancelled. The Tribunal is of the view that the Ms Yang can avoid many of these difficulties by departing Australia on a voluntary basis.

    Does Australia have obligations under relevant international agreements that would be breached as a result of the visa cancellation?

16. There is no information that the circumstances in this matter would enliven or breach Australia’s international obligations.

17. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal has decided that there are grounds for the cancellation.  Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa holder’s visa should be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Partner (Provisional) (Class UF) visa.

    Helena Claringbold
    Member