Zhang (Migration)

[2021] AATA 1248

Zhang (Migration) [2021] AATA 1248 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hongyun Zhang

CASE NUMBER:  2016075

HOME AFFAIRS REFERENCE(S):          BCC2018/5379424

MEMBER:Kira Raif

DATE:1 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 01 March 2021 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – ground for cancellation – failure to notify change in circumstances – incorrect information in visa application – genuine and continuing relationship – sponsor filed for divorce in the US – timing of the relationship breakdown – consideration of discretion – visa grant based partly on incorrect information – deliberate dishonesty – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 101, 104, 107, 109, 140

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 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted the Spouse visa on 19 March 2018. On 20 July 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (the Notice, NOICC) because the delegate formed the view that the applicant may not have complied with ss. 101 and 104 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 23 October 2020. The applicant seeks review of the delegate’s decision.

3. The Tribunal informed the applicant of the existence of the s. 375A Certificate and provided her with a copy of the document. The applicant made submissions about the validity of the Certificate. The Tribunal has formed the view that the Certificate is valid. The Tribunal has also discussed with the applicant all information which the Tribunal considered may be a reason or part of the reason for affirming the decision under review.

4. The applicant appeared before the Tribunal on 1 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from three of the applicant’s friends. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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.

6. 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? 

7. 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.

8. 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?

9. 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 ss. 101 and 104 of the Act.

10. Information on the Department files (which was the subject of Tribunal’s s. 359A correspondence) indicates that the applicant made the application for a Partner vias on 13 April 2015, sponsored by her then husband Mr Shaun Reid. The applicant indicated in her application that she married the sponsor on 27 February 2015, that the relationship between them was genuine and continuing and that there was a mutual commitment to a shard life as husband and wife to the exclusion of all others. The applicant was granted the Provisional Partner visa in subclass 820 on 10 June 2015.

11. In May 2017 the Department received advice from the sponsor that he was filing for divorce. He advised the Department that the applicant had an extramarital affair in February 2016. In July 2017 Mr Reid informed the Department that the couple had reconciled. In August 2017 the applicant provided a statutory declaration dated 12 August 2017 in which she stated that she and the sponsor were still in a relationship. A similar declaration was provided by the sponsor.

12. The applicant submitted the Partner visa application form in support of the permanent visa application in August 2017. In that form, the applicant stated that she and the sponsor were still in a genuine and continuing relationship and had a mutual commitment to a shared life as husband and wife. The applicant provided a declaration indicating she would inform the Department in writing if she becomes aware of a change in circumstances. The applicant also presented a declaration from Mr Reid, dated 17 August 2017, in which he stated that he and the applicant were still in a relationship. The applicant was granted the permanent visa on 19 March 2018.

13. Information on the Department’s file indicates that the sponsor filed for divorce in the US. A Department officer checked the information the Washington County Court website which refers to Case Number C-63-CV-2017-2437 Reid vs Zhang, a divorce application filed on 12 May 2017. Information indicates the divorce was finalised by 28 August 2017, before the applicant was granted her permanent visa.

14. The primary decision record indicates that the Department received an allegation that the applicant entered an ‘arrangement’ with the sponsor in order to obtain residence for herself and her son and chose not to inform the Department the relationship was no longer ongoing. The allegation indicates that immediately after being granted permanent residence, the applicant moved out of the sponsor’s residence to a flat owned by Stewart. The primary decision record indicates that shortly after being granted permanent residence, the applicant left Australia and upon her return on 14 August 2018 she gave an address at Cardiff NSW on her Incoming Passenger Card (IPC) and declared Stewart as her emergency contact. The address was not the address of the sponsor. It is stated in the primary decision record that before the applicant was granted her visa, the sponsor travelled overseas on three occasions, spending minimal time in Australia with the applicant.

15. In her response to the NOICC the applicant states that she was unaware that the sponsor filed for divorce in the US until she received information from her husband’s divorce lawyer in May 2017. They continued to live as a couple, despite the divorce application, and she had no knowledge there was a change in her relationship. The applicant states that her relationship with the sponsor was never interrupted, so the information she gave was not incorrect. The applicant states that by the time of the decision, she had been subjected to domestic violence and she refers to an incident occurring in May 2017. The applicant denies that there was an arrangement between her and the sponsor to obtain permanent residence.

16. The applicant provided written submissions to the Tribunal on 27 January and 22 February 2021, essentially repeating the claims she made in response to the NOICC. The applicant states that she met the sponsor in 2013 and always had a genuine relationship. The applicant explains the circumstances of the divorce and quotes from her communication with the sponsor. She states that she never had the extramarital affair as the sponsor claimed. The applicant states that they travelled together and paid bills jointly and communicated and shared life as husband and wife. The applicant states she did not know at first about the divorce as they had never separated and even after the Protection From Abuse (PFA) Order, they kept in touch and the sponsor moved back earlier. The applicant refers to Mr Reid’s statement of 19 July 2017 in which he refers to reconciliation and states that despite the formal divorce and the difficulties in their relationship, including domestic violence, they continued to live in a genuine and continuing de facto relationship and the sponsor wanted to divorce in order to ‘restart everything’. (The Tribunal is mindful that Mr Reid’s statement is dated before the formal divorce was finalised.)

17. The applicant states that she met Stewart in 2017 and they were friends. The applicant states that when she left the sponsor, she was worried that he might hurt her and Stewart offered for her to rent his granny flat. As she did not know anyone, she used Stewart as an emergency contact on her IPC. After she told him she had a boyfriend, he tried to hurt her and there were instances of sexual assault. The applicant provided to the Tribunal in her submission of 22 February 2021 a police report relating to the assault.

18. The applicant states that despite the PFA, she loved the sponsor and asked him to come back and there is evidence of their relationship. The applicant states that the sponsor’s travel for work was beyond her control. The applicant refers to evidence of her relationship with the sponsor, including joint payment of bills and cohabitation even when the PFA was in place. The applicant states that she considers their relationship ended in May 2018 and that it continued after the formal divorce which was granted in August 2017 in the US. The applicant denies the allegation that her relationship with the sponsor was arranged for the purpose of the visa.

19. The applicant repeated these claims in her evidence to the Tribunal. In oral evidence the applicant told the Tribunal that even though her then husband applied for divorce, she did not know about it until receiving information from the Immigration Department in May 2017. They had never separated and treated each other as husband and wife. She did not know the relationship had changed and it was always genuine. The applicant states that after the divorce was filed and while they were waiting for the divorce, the sponsor suggested they should renew the relationship and re-marry after a year. The applicant said that she thought the sponsor wanted to control her with the visa as he filed the divorce application right before she was due for the visa, and also to arrange a prenuptial agreement before the second marriage. The applicant states that she found out about the divorce when she received communication from the Immigration Department. The Tribunal notes that according to the information on Divorce Process in Washington State | Washington Divorce Online, before a divorce can be granted, the spouse of the plaintiff must be notified of the filing of the divorce application. In her response to the NOICC the applicant provided a copy of the consent orders filed in Court in June 2017, suggesting she was involved in the divorce proceedings. The applicant then agreed that she knew about the divorce when she received papers from the sponsor’s lawyer and not from Immigration and she states that the Department wrote to her before the final divorce.

20. The applicant states that she did not inform Immigration about the divorce because nothing changed in their relationship and they continued to live as husband and wife. They still referred to each other as husband and wife and she did not think anything changed in her relationship. The Tribunal notes, however, that the issue here is not about the applicant’s perception of the relationship but the change in the formal recognition of the relationship as husband and wife, which was the basis of her Partner visa application.

21. With respect to the PFA Order, the applicant states that she was in an abusive relationship and she described the incident when she called the police. The applicant states that that  the sponsor stayed with a friend for less than a week and she then asked him to return home because she missed him. The applicant agrees that this was contrary to the PFA. The applicant states that it shows their relationship was in fact genuine but she did not vary the PFA because she felt safer with the Order in place.

22. With respect to travel, the applicant explains that the sponsor’s travel to the US was due to his work commitments and beyond her control. The applicant states that she ended the relationship in May 2018 and travelled to the US for three months. The Tribunal acknowledges that the sponsor’s travel may have been dictated by work commitments. However, the Tribunal places some weight on the fact that the sponsor made the trips without the applicant and had spent minimal time with the applicant after returning to Australia from the US.

23. The applicant refers to the supporting documents she provided with the application, which shows that she had a genuine relationship with the sponsor. When the Tribunal pointed out that such documents may be available whether or not the applicant was in a genuine relationship, the applicant states that she is of good character and she would never ask friends and members of the community to make up information for her. The applicant refers to her employment and other engagements and states that she had a good life in the US and a good job in China and there was no need for her to migrate to Australia. The applicant states that she had already agreed to return to China following the divorce and bought a ticket and there was no need for her to travel to Australia or get the visa and she would not have done that for the sake of the visa as it is not in her character. The applicant states that she tried for half a year after being granted the visa to contact the sponsor and maintain the relationship and she sent many emails to the sponsor and if she only had the relationship for the visa, there was no need for her to do that.

24. The Tribunal has considered the applicant’s evidence but finds her explanations unpersuasive. The Tribunal does not accept there was no change in the applicant’s relationship with the sponsor, given that the sponsor had filed for divorce and the applicant’s evidence is that she became aware of it by May 2017. The Tribunal does not consider it plausible that there would be a formal application for divorce, yet no change in the couple’s relationship and living arrangements. It is nonsensical, in the Tribunal’s view, that the application for divorce would be made if there was no intention to make any changes to the relationship and if the couple maintained a genuine and committed relationship as the applicant now suggests. The applicant explains to the Tribunal that the sponsor used the divorce shortly before the permanent visa grant as a means of controlling her and to arrange a prenuptial agreement but as the applicant does not suggest the sponsor had ever intended to withdraw the sponsorship and she claims there was a genuine and mutually committed relationship until after the visa grant, it is unclear to the Tribunal how the divorce could be used as a means to control her. It was not used by the sponsor to withdraw the sponsorship (while he did inform the Department of the relationship breakdown, that was quickly withdrawn). The Tribunal is also mindful that the applicant claims the sponsor wanted to ‘start afresh’ and remarry after a year but this had never happened. Thus, the Tribunal does not accept that the sponsor initiated and finalised the divorce as a means of controlling the applicant or arranging a prenuptial agreement. 

25. The Tribunal also notes the applicant’s evidence that she made arrangements to return to China after the divorce and had already purchased the ticket. In the Tribunal’s view, that  contradicts the applicant’s evidence that there was no change in her relationship with the sponsor after the divorce and that they continued to live in the same relationship and treat each other as spouses.

26. The Tribunal considers it significant that the applicant claimed in her written evidence to the Tribunal that she ended the relationship in May 2018. This was merely two months after she was granted the permanent visa. In oral evidence, the applicant told the Tribunal that she never believed the relationship broke down and she still wanted to work it out and they were still good to each other and she was still messaging the sponsor for about six months after being granted the visa. The applicant claims that she tried hard to keep the relationship until September and kept sending messages to the sponsor. That means the relationship was ongoing. The applicant states that she still loved him and she did not think it was over. She would not have maintained contact if the relationship was only for the visa. The applicant claims the relationship ended around September 2018.

27. The Tribunal does not accept the applicant’s evidence. Firstly, the fact that the applicant sent some emails or other communication to the sponsor does not evidence the existence of a relationship and the applicant’s evidence is that the sponsor did not respond to her messages. The Tribunal does not consider that a relationship can be defined by the applicant writing messages to the sponsor. There is no evidence that by that time (after May 2018) she and the sponsor maintained a joint household or shared their finances or socialised together or represented themselves to others as being in a relationship. Thus, the fact that the applicant continued to send communication to the sponsor after May 2018, which remained unanswered, does not support the claim that there continued to be a relationship between them.

28. Secondly, in her submission to the Tribunal of 27 January 2021 and her statement of the same date the applicant states that she believed the relationship ended on 13 May 2018 and not in September 2018 as she now claims. The applicant told the Tribunal that she was upset at the sponsor at the time and left for the US and she made a mistake in her written statement. The Tribunal does not accept that explanation. The date when the relationship ended is central to the decision to cancel her visa and the applicant had provided a lengthy and detailed response to the NOICC to explain her situation. She must have given considerable thought to the timing of the relationship and in such circumstances, the Tribunal does not accept that the applicant ‘made a mistake’ when referring to the relationship breakdown in May 2018 in her written statement to the Tribunal if she believes the relationship ended in September 2018.

29. The Tribunal has formed the view that the applicant has not been truthful when claiming the relationship ended in September 2018.

30. The applicant states that even if the relationship ended in May 2018, this happened after she was granted the visa. The Tribunal finds that evidence problematic. Thus, the applicant claims that despite the formal divorce, she and the sponsor maintained a genuine and committed de facto relationship. She claims that despite the family violence incident in 2017 (as evidence of which the applicant submitted a Protection from Abuse order)  she and the sponsor maintained a genuine and committed de facto relationship. That relationship existed, the applicant claims, despite the parties spending most of their time in different countries. Yet within two months of being granted the permanent visa, the applicant claims the relationship was over. The claimed timing of that break-down so soon after the visa grant supports the Tribunal’s view that in fact the relationship ended much earlier and following the visa grant, the applicant saw no further need to be with the sponsor or claim there was a relationship between them.

1. The Tribunal also placed weight on the allegation that the relationship was arranged to enable the applicant and her child to obtain Australian residence. The applicant denies that allegation however in this case, the Tribunal has decided to give it some weight. This is because the person making the allegation appears to have some knowledge about the applicant’s and sponsor’s circumstances. Thus, the person has indicated that the applicant moved out of the family home soon after the grant of the visa and that she lived in a place owned by Stewart, which is consistent with the information the applicant gave on her IPC and the applicant confirms that information. This indicates that the writer of the allegation has some familiarity with the applicant’s circumstances and while the allegation on its own would be of very limited probative value, when considered with all other circumstances outlined above, the Tribunal has formed the view that it should be given some weight.

2. The primary decision record refers to the PFA dated 23 May 2017 which was granted to the applicant by Court of Common Pleas in Washington County. It states that the sponsor was evicted and excluded from the marital residence where the applicant continued to reside and he was prohibited from having any contact with the applicant. The Court issued a Consent Order dated 6 June 2017 in which the applicant and sponsor agreed to have no contact with the exception of texting and email and the applicant consented to vacate the marital residence by 30 June 2017. There is no evidence of the Order being amended or withdrawn and the couple proceeded to divorce in August 2017. This arrangement is contrary to the applicant’s evidence that she and the sponsor continued to reside in a genuine marital  (or de facto) relationship with no changes to their interactions. The applicant’s evidence to the Tribunal is that they lived apart for less than a week and she asked the sponsor to return home but did not vary the Order. In the Tribunal’s view, that evidence contradicts the applicant’s claim that despite the formal divorce, there was no change in her relationship with Mr Reid, that they still considered each other as spouses and that she was unaware of any changes in her circumstances.

3. The applicant also points out that she had provided a number of documents with her Partner application, including statements from third parties, attesting to the genuine nature of the relationship and if it was not genuine, it would imply that the evidence was not genuine and those who provided statements were not truthful. The applicant presented a number of documents evidencing various aspects of the relationship in response to the NOICC and there are a number of additional statements before this Tribunal. The Tribunal acknowledges that the application was accompanied by evidence of the relationship and there is presently more evidence before the Tribunal. However, the Tribunal is of the view that it is possible to obtain such evidence whether or not a genuine relationship exists. For example, the applicant and the sponsor may have leased a property in joint names but there is no checking done by the lessors about the living arrangements. The parties may have opened a joint bank account and both used the account but it is not possible to determine whether the funds were genuinely shared. The parties may have given their joint address to various organisations, to pay amenity bills etc but no checking is done by any such organisations to ensure the parties do in fact live together or, if they do, what is the nature of the household. The applicant had included statements from third parties. It is possible that they provided such statements without the true belief that there was a genuine married or de facto relationship between the applicant and the sponsor and simply as a favour to the applicant. It is also possible that they did believe the relationship to be genuine and that the applicant and the sponsor represented themselves to others as being in a relationship. It is not known whether those who presented statements were fully cognisant of the applicant’s circumstances, for example, whether she informed them about the formal divorce and whether that would have altered their opinion. The Tribunal does not consider it to be sufficient to establish the existence of a genuine relationship by reference to third party statements. Conversely, the existence of such statements in circumstances where the relationship had ended would not persuade the Tribunal that a genuine relationship continued to exist.

4. Significantly, the Tribunal’s concern here is with the timing of the relationship breakdown rather that  with the relationship itself. It is possible that the applicant and the sponsor did have a genuine relationship before its breakdown. However, the breach as set out in the NOICC, relates to the relationship breakdown prior to the grant of the permanent visa.

5. The Tribunal has also considered the oral evidence of third parties, given at hearing. They refer to a genuine relationship but were unfamiliar with the circumstances of its breakdown, with two of the three witnesses suggesting the relationship ended in 2019 (well after the applicant claims it had ended). The Tribunal considers that evidence unhelpful in establishing when the applicant’s relationship with the sponsor ended.

6. The Tribunal accepts the applicant’s suggestion that the divorce does not preclude the existence of a genuine de facto relationship. However, in this case the issue of the relationship arises not because the applicant’s relationship with the sponsor was a de facto one. The concerns about the relationship arise because the couple did marry and then the sponsor took steps to arrange a formal divorce, to which the applicant appears to have agreed. The Tribunal does not consider that an arrangement to formally end a registered marriage by filing an application for divorce is entirely meaningless, as the applicant appears to suggest. The Tribunal does not accept the applicant’s evidence that following the divorce, her relationship with the sponsor remained unchanged and she was unaware of any changes in her circumstances. The applicant’s own evidence is that she was upset by the divorce and made arrangements to return to China. There was a family protection order in place, the couple lived separately for less than a week and on the applicant’s evidence, the relationship broke very soon after the applicant was granted the permanent visa. The combination of these factors suggests to the Tribunal that the applicant and the sponsor did not maintain a genuine and mutually committed relationship after the formal divorce in 2017.

7. The applicant claims that she had been subjected to family violence and would have met the requirements for the grant of the visa. However, the applicant did not claim to have been subjected to family violence when seeking the visa. There is no suggestion that she relied on that provision or that she presented the statutory evidence of family violence in her visa application. That claim was never made and never assessed. It is not helpful, in the Tribunal’s view, to state that she could have relied on the family violence exception. She had not and she had not been found to have met the statutory definition of family violence.

8. The Tribunal also acknowledges that the applicant provided in response to the NOICC a statement from Mr Reid who attends to the existence of a genuine relationship. It appears that there were issues in the relationship (with the allegations of extra-marital affairs), the sponsor filed for divorce, then the couple reconciled and then the divorce went through, there were claims of family violence, a formal protection order and the arrangements made for the applicant to return to China. Contrary to the applicant’s evidence that the sponsor intended to remarry after a year, that had never happened and nothing appears to have prevented the remarriage if the sponsor genuinely intended for it to take place.

9. The applicant claims that her relationship with the sponsor was unaffected by the formal divorce. For the reasons stated above, the Tribunal does not accept that evidence. The Tribunal finds that the application was made on the basis of the applicant being in a married relationship with the sponsor. The applicant provided with her application a marriage certificate showing a valid marriage between her and the sponsor and gave details of the marriage in the application form. The applicant’s evidence is that she and the sponsor had formally divorced by consent in June 2017.

10. While the applicant claims she could have been granted the visa on de facto grounds, it is clear that the application was made on marital grounds and not de facto grounds (which encompass different statutory requirements). In the Tribunal’s view, the mere fact that  the couple had divorced, even if they did maintain a genuine de facto relationship after divorce (a claim the Tribunal does not accept) would indicate that there was a change in the applicant’s circumstances so that an answer on the application form became incorrect. The applicant did not inform the Department about the changes in her circumstances. The Tribunal finds that the applicant did not comply with s. 104 of the Act.

11. For these reasons, the Tribunal finds that there was non-compliance with s. 104 by the applicant in the way described in the s.107 notice.

12. The Tribunal has also formed the view, for the reasons stated above, that the applicant’s relationship with the sponsor ended following the formal divorce. That is, the applicant was no longer in a spousal relationship with the sponsor before she was granted the permanent visa. The Tribunal rejects the applicant’s evidence that there was no change in their relationship following the divorce and that they continued to live together as spouses, or de facto partners. The Tribunal does not accept that  the divorce was a meaningless process and a means to control her. The Tribunal does not accept that the sponsor intended to re-marry after a year. The Tribunal has formed the view that the divorce evidenced the sponsor’s or the parties’ intention to end their relationship and the applicant formally proclaimed the end of the relationship upon being granted the permanent visa. The Tribunal has formed the view that by the time the applicant provided statements and other evidence in support of her permanent visa application, she was no longer in a genuine spousal relationship with the sponsor. The Tribunal finds that the applicant completed her application form in a way that incorrect answers were given.

13. The Tribunal finds there was non-compliance with s. 101 in the way described in the s. 107 notice.

    Should the visa be cancelled?

14. 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).

15. 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. Briefly, they are:

    The correct information

16. The correct information is that the applicant’s circumstances had changed before she was granted the permanent visa and she was no longer in a married relationship with the sponsor. The Tribunal has also formed the view that applicant’s circumstances had changed following the formal divorce so that she was no longer in a marital relationship with the sponsor.

    The content of the genuine document (if any)

17. 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

18. The applicant suggests that a visa can be granted on de facto grounds and there is no requirement for a married relationship to exist. The Tribunal acknowledges that this is so but the Tribunal notes that applicant sought the visa on the basis of being in a married relationship with the sponsor and not on the basis of a de facto relationship. The requirements for the grant of the visa on the basis of a de facto relationship are different and the applicant would have been required to meet the additional criteria relevant to de facto grounds. The applicant was not assessed against the de facto criteria.

19. Similarly, the applicant suggests that she had suffered family violence and would have met that exception. However, there is nothing to suggest that  the applicant sought the visa on the basis of the family violence exception and she did not present the prescribed evidence of family violence. That claim was not assessed. The applicant sought the visa on the basis of her married relationship with the sponsor and that was the basis on which her application was assessed and the visa granted.

20. The Tribunal has formed the view that the relationship and the formal marriage ceased to exist before the applicant was granted the permanent visa. That information was not before the decision-maker. 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

21. The applicant denies that there was non-compliance but the Tribunal has formed the view that the applicant’s relationship with the sponsor ended at the time the couple obtained formal divorce. In that case, the applicant’s and the sponsor’s subsequent representation of their relationship as genuine, ongoing and committed had been deliberately dishonest to enable the applicant to obtain the permanent visa.

22. The applicant told the Tribunal that she had an agent representing her in the visa application and relied a lot on the sponsor and she did not know she had to inform of any changes in her circumstances. The applicant claims that their circumstances had not changed, and their relationship continued in the same way as before. The Tribunal does not accept that evidence because the applicant and the sponsor had divorced and the application was made on the basis of being in a marital relationship and not the de facto relationship. The applicant would have signed a signed a declaration on the application form 47SP which required her to inform of changes in her circumstances and it was not up to the applicant to determine which change in her circumstances was relevant and which was not. The Tribunal does not accept that the applicant did not appreciate the significance of a formal divorce for a Partner visa application as the nature of her relationship with the sponsor was central to that application. The Tribunal does not accept that  the applicant was unaware of the obligation to inform of the changes in her circumstances.

23. Neither does the Tribunal accept that the applicant misunderstood the term ‘circumstances’ and relied on the sponsor to complete the forms. The applicant’s evidence is that she works as an interpreter in Australia and she is very proficient in English, as she demonstrated throughout the hearing, and the Tribunal has formed the view that the applicant would have had the capacity to understand the instructions on the form even if she was assisted in the visa process by a migration agent and her then husband.

24. The Tribunal does not accept that the applicant failed to understand the significance of the divorce. The Tribunal is concerned that the applicant had deliberately withheld the information about the divorce from Immigration so as not to jeopardise her visa application.

    The present circumstances of the visa holder

25. The applicant refers to her employment as an interpreter and states that the cancellation of the visa would lead to loss of employment and financial hardship. She applicant states that she is a secretary of an Australian – Chinese Friendship organisation and she helps several Australian companies to export products. The Tribunal accepts that if the visa remains cancelled, the applicant may be unable to maintain her employment in Australia and that would be financially detrimental to the applicant, although the applicant has not satisfied the Tribunal that this would cause financial hardship to her as there is little evidence about her financial circumstances.

26. The applicant refers to her son’s residence and study in Australia and states that her son is used to the Australian culture and way of life. The applicant told the Tribunal that she has been living in Australia for a number of years and has formed friendship and her career and life are in Australia. She gave up her job and everything in the US before travelling to Australia and she cannot return to the US. The Tribunal accepts that the applicant has formed ties to Australia and that there may be hardship caused to the applicant and her family if the visa is cancelled.

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

27. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

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

    The time that has elapsed since the non-compliance

29. The applicant was granted the permanent visa in March 2018. Obligation to inform under s. 104 continues until the visa grant. Three years have passed since that non-compliance. The Tribunal does not consider this to be a significant period of time.

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

30. There are no other known breaches of the law.

    Any contribution made by the holder to the community.

31. The applicant claims that she has contributed to the community through her employment as an interpreter in the health industry, particularly during the pandemic. The applicant states that she helps companies with import / export processes, increasing sales and she pays taxes through her employment. The applicant also referred to her role as a secretary of the Australia – China society. The applicant states she is a good person and always helps people. The Tribunal accepts that the applicant has made a contribution to the community.

32. 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.

33. The applicant’s son was granted the Partner visa as a member of the family unit and his visa would be subject to cancellation under s. 140. The applicant told the Tribunal that her son has studied in Australia for six years and his culture is Australian and he finds it difficult to live in China. The Tribunal does not accept that the son’s culture has become more Australian than Chinese, where he had spent the majority of his life and has been living since January 2020. While the Tribunal accepts that the applicant’s son may have formed some friendships in Australia, the Tribunal is not satisfied on the limited evidence before it that hardship would be caused to the applicant’s son if the visa is cancelled.

    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.

1. The applicant’s son is over the age of 18 and is no longer considered to be a child. The applicant told the Tribunal there are no other children affected by the cancellation.

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

2. The applicant does not claim, and there is no evidence before the Tribunal, that the applicant would be subjected to any form of harm or persecution upon return to China and the Tribunal does not consider that Australia’s non-refoulement obligations arise in this case. The applicant’s son, parents and sibling reside in China and the family unity 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.

3. If the applicant’s visa is cancelled, unless she is granted other visas, the applicant would be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, she may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although there will be limited opportunities for her to do so in Australia as a result of the cancellation. The applicant may be subject to an exclusion period in relation to future visa applications. The applicant may also lose some entitlements she may have acquired as an Australian permanent resident.

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

4. The applicant’s evidence about the hardship that may be caused by the cancellation is addressed above. The applicant claims she is a good person and should not be punished.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s.  101 of the Act because her relationship ended upon divorce and before the permanent visa was granted, rendering her answers in support of the permanent visa application incorrect. The Tribunal also finds that the applicant did not comply with s. 104 because her circumstances changed following the formal divorce and the applicant failed to inform the Department about the changes in the circumstances. There is a ground for cancelling the visa on that basis alone.

6. The Tribunal acknowledges that the applicant may experience some hardship as a result of the cancellation because she has been living in Australia for a number of years, has engaged in employment and community activities and has contributed to the community through such activities and the payment of taxes. The Tribunal also accepts that the applicant’s son has studied in Australia and may prefer to live in Australia and that his visa would be cancelled under s. 140.

7. However, the Tribunal places greater weight on the fact that the decision to grant the visa was based on incorrect information. Information about the applicant’s relationship with the sponsor was central to the decision to grant her the visa and while the applicant claims she could have been granted the visa on de facto grounds or on the basis of family violence, she had not made such claims and was not assessed against these criteria. The Tribunal has rejected the applicant’s evidence that her relationship with the sponsor was no different after the divorce. The Tribunal is of the view that the applicant was aware that the divorce may affect her eligibility for the visa and that is the reason she failed to inform the Department of the divorce so as not to jeopardise her visa application. That is, the breach was intentional. In the Tribunal’s view, these circumstances offer a strong reason why the visa should be cancelled.

8. The Tribunal has found that the cancellation would not be in breach of Australia’s obligations and would not affect the interests of any children.

9. 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. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.

    Kira Raif
    Senior Member