Yu (Migration)

[2020] AATA 4610

Yu (Migration) [2020] AATA 4610 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lijuan Yu

CASE NUMBER:  1821112

DIBP REFERENCE(S):  BCC2017/4069015 CLF2014/52836 CLF2014/56547 CLF2016/27246

MEMBER:Adrienne Millbank

DATE:21 August 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa holder’s Subclass 801 (Spouse) visa.

Statement made on 21 August 2020 at 3:02pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – incorrect information in visa application – relationship status with sponsor – prior marriage to another person – marriage with sponsor declared null and void – additional evidence and information before the Tribunal – annulment of marriage overturned by Family Court – sponsor’s motives for discrediting the applicant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 101, 107, 109, 363

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 Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa holder is a 46-year-old national of China, who first arrived in Australia on 18 November 2013 on a Subclass 300 (Prospective Marriage) visa. She married her sponsor on 14 February 2014 and was granted a Subclass 820 (Partner Provisional) visa on 16 May 2014 . She was granted the Subclass 801 (Spouse) visa under family violence provisions, on 16 May 2016.

3. The delegate cancelled the visa on the basis that the visa holder provided incorrect information in her application form, and therefore failed to comply with s.101(b) of the Act. Section 101 requires a non-citizen to fill in 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.

4. The delegate’s decision records that on page 14 of the application form, in response to the question ‘What is your current relationship status with your sponsor?’, the visa holder stated ‘Married’, with the date of marriage listed as 14 February 2014. On page 14 of the visa application form, the visa holder answered ‘No’ to the question ‘Have you been married to a person other than your current sponsor (including if you are still legally married to that person)?’ At the time of the decision the delegate had information before it that the applicant had married another person prior to her marriage with the sponsor, and that the Family Court, on 13 December 2016, had declared the visa applicant’s marriage to the sponsor null and void. On the basis of this information, the delegate found that the information the visa holder provided on her application form was incorrect, and the visa holder was not the spouse of the sponsor as defined in s.5F of the Act. The delegate found that had the correct information been provided, the visa holder would not have been granted a Subclass 801 (Permanent Partner) visa.

5. The decision record sets out the delegate’s consideration of the visa holder’s denial, in a statutory declaration received by the Department on 4 July 2016, that she had ever been married to anyone other than the sponsor. It sets out also the delegate’s consideration of the visa holder’s response to the Department’s Notice of Intention to Consider Cancellation issued on 10 April 2018, where the visa holder claimed that:

   ·she learned only on 14 December 2016, when she was lodging an application for divorce, that her marriage to the sponsor had been annulled on 13 December 2016;

   ·the sponsor provided false documents and fraudulent claims to the Family Court;

   ·the sponsor purposely provided to the Family Court an incorrect address for her and forged her signature to prevent her from receiving the initiating application for a marriage annulment, and from attending the court hearing; and

   ·the Family Court had reopened the matter following the visa holder’s filing of an application for a declaration of the validity of her marriage to the sponsor. 

6. The delegate acknowledged the visa holder’s claims, and accepted that there were ‘various inconsistencies’ in the purported marriage certificate of the visa holder’s marriage to a person named Ang Sheng Hock, in Malaysia, in 1999. The delegate acknowledged also that at the time of making the decision, legal proceedings were ongoing in the Family Court.

7. The delegate made the decision on the information before it, which was: that the visa holder’s marriage to the sponsor had been annulled by the Family Court on the basis that it was satisfied she was already married at the time of her marriage to the sponsor; and that the visa holder’s marriage to the sponsor had been declared null and void by Births Deaths and Marriages.

8. This case was constituted within the Tribunal on 30 August 2018. The Tribunal delayed the scheduling of a hearing pending the outcome of the visa holder’s appeal to the Family Court against the original decision, which failed, and the outcome of the visa holder’s application in the Family Court to overturn the annulment of the applicant’s marriage to the sponsor, which succeeded. That application was finalised on 10 October 2019, with an ‘Order By Consent’ issued by the Family Court, that the declaration that the marriage between the sponsor and the visa holder was void be set aside, and that the decree of nullity of the marriage be set aside.

9. The Tribunal scheduled a hearing for 12 December 2019. This hearing was cancelled by the Tribunal and the scheduling of a hearing was further delayed, for the reason that the Tribunal requested the Department, on 9 December 2019, pursuant to s.363(1)(d) of the Act, to verify the authenticity of a Malaysian marriage certificate, provided to the Department by the sponsor, which certified that the visa holder married a Mr Ang Sheng Hok at the Berjaya Waterfront Hotel in Johor Bahru on 16 September 1999. The Tribunal requested the authenticity check as a matter of urgency, however the process was slowed by the coronavirus shutdown in Malaysia.  

10. The visa holder appeared before the Tribunal in person on 7 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11. The visa holder was represented in relation to the review by her registered migration agent, who attended the hearing.

12. During the hearing the Tribunal gave the visa holder copies of four s.376 certificates. The Tribunal advised the visa holder that it had determined the certificates to be valid because they protected the identity of people who had provided information in confidence to the Department and the Tribunal. The Tribunal invited comment as to the certificates’ validity, and advised the visa holder that she could seek an adjournment. The Tribunal advised the visa holder that the information covered by the certificates was irrelevant to the issue before it at the time of its decision, and would not lead or contribute to the delegate’s decision being affirmed. The Tribunal advised the visa holder that it would nevertheless ask her some general questions arising from the gist of the information covered by the certificates, to assist its understanding of her story. The visa holder’s representative accepted the validity of the certificates, and the visa holder did not seek an adjournment during the hearing.

13. For the following reasons, the Tribunal has concluded that the decision to cancel the visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. 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.

16. 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 complied with the statutory requirements.

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

17. 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 notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following respects: a non-citizen must fill in or complete his or her application form in such a way that no incorrect answers are given or provided.

18. At the hearing, the Tribunal raised with the visa holder the gist of the information covered by the certificates, which was that the visa holder, her ‘real’ husband who lived in Singapore, Mr Ang Sheng Hok and their criminal associates, had harassed and threatened the sponsor and his family and that the sponsor had reported incidents to the police. The Tribunal put to the visa holder that the sponsor appeared, if her claims were correct, to have gone to extraordinary lengths to discredit her and to nullify their marriage, including forging signatures, fabricating an elaborate story and evidence that she was married and had falsely presented herself to him as single, providing incorrect information and bogus documents to the Department, and perjuring himself before the Family Court. The Tribunal asked the visa holder why the sponsor would have gone to such lengths.

19. The visa holder denied that she or her ‘associates’ had ever threatened or harassed the sponsor and his family. The visa holder stated that she, rather, was the recipient of threats and harassment from the sponsor. She pointed out that she was granted a visa on family violence grounds. She stated that she didn’t know anyone by the name of Ang Sheng Hok, and that the person in photographs provided to the Department by the sponsor was an old friend of hers, in Singapore. The representative referred the Tribunal to an affidavit provided to the Department by this friend, in which he declared he is not named Ang Sheng Hok, is a happily married, family man, and was not and never has been married to the visa holder.

20. The visa holder stated that she had never, and never would, provide false information to the Department. She stated that while she had been in relationships with other people before she met the sponsor, she had never been married before she married the sponsor.

21. Regarding the sponsor’s motives for his extraordinary measures, the visa holder stated that in her view the sponsor suffered from mental health issues. She stated that she encouraged the sponsor, during their marriage, to seek psychiatric help. She stated that she met the sponsor online; that she spoke little English at the time; and that the sponsor had sponsored his first wife from the Philippines. She posited that the sponsor would find it difficult, because of his mental health issues, to establish a relationship with a person who spoke fluent English. She stated that if the sponsor’s marriage to her was nullified, he would be able to sponsor another partner from a non-English speaking country. She stated that during the breakdown of her marriage to the sponsor, she observed him conversing online with a person who could have been a potential replacement partner.

22. Regarding the correctness or incorrectness of the information that the visa holder provided in her application form, that she was married to the sponsor at the time of application, and that she had not married another person before she married the sponsor, the following evidence was before the Tribunal:

    ·Documents provided by the visa holder to the Department demonstrating that she had no prior marriage, including a search for marriage records which showed no prior marriage was recorded under her name and passport number, and that the visa holder attempted but was unable to obtain a statement of verification of her marital status from Malaysia because she was not a citizen of that country;

    ·A copy of the Order by Consent issued by the Family Court in Brisbane on 10 October 2019 setting aside the declaration that the sponsor’s marriage to the visa holder was void, and setting aside the decree of nullity of the marriage. Included in the Order is a notation that it was accepted by the parties that the order made on 13 December 2016 to nullify the marriage was made in the absence of the applicant (the visa holder), and in circumstances where the applicant (the visa holder) disputed being served with the Initiating Application – Nullity;

    ·A copy of the visa holder’s divorce order issued by the Federal Circuit Court on 5 February 2020, finding the marriage between her and the sponsor was proved, and that it had broken down irretrievably.

    ·A handwriting analysis report dated 12 July 2018 from an agency named ‘Documents in Dispute’, based in Beverly Hills NSW, which supports the visa holder’s claims that her signature was forged to prevent her from receiving court documents and therefore contesting the application to nullify her marriage to the sponsor. The agency examined signatures purportedly of the visa holder on a ‘Marriage Register Extract’ and on an ‘Australian Post Registered Post Delivery Confirmation receipt’. It found, based on a central premise of signature examination that one person cannot sign their name in the exact same way twice, that one or both of the signatures were ‘not natural’. It concluded the most likely explanation was that one of the signatures was a copy and paste of the other;

    ·Advice provided to the Tribunal by the Department on 2 July 2020 that the National Registration Department – Marriage and Divorce Division of Malaysia had confirmed that the 1999 marriage certificate and accompanying statement of marital status were counterfeit, and that there was no record of a marriage between the visa holder and a Mr Ang Sheng Hok in their system;

    ·Advice from the visa holder’s representative that the matter before the Family Court had settled before a trial, and that the terms included that the sponsor withdrew his objection to the application to set aside the marriage annulment; and

    ·The visa holder’s Departmental ICSE records showing that an ‘integrity check’ has been carried out and completed, and that the Malaysian marriage certificate has been confirmed as ‘Non-Genuine’.

23. Evidence and information was before the Tribunal, at the time of decision, that was not available to the delegate. At the conclusion of the hearing, the representative and the visa holder thanked the Tribunal for allowing the time for the Family Court proceedings to be finalised, and for instigating the authenticity check of the bogus marriage certificate. 

24. Comprehensive and detailed written submissions, by the visa holder and her representative, detailing the history of the case, were provided to the Tribunal, and the visa holder was an articulate and open witness at hearing. The evidence at the time of decision supports, and the Tribunal accepts, that the visa holder was not married before she married the sponsor, that she was married to the sponsor at the time of application, and that the information she provided in her application form is correct. Therefore, the visa holder did not provide incorrect information in her application form and in her statutory declaration signed on 4 July 2016.  

25. In these circumstances, the Tribunal finds that there was no non-compliance by the visa holder in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

26. As the Tribunal is not satisfied that there was non-compliance by the visa holder in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa holder’s Subclass 801 (Spouse) visa.

    Adrienne Millbank
    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.