Zhang (Migration)

[2019] AATA 6430

Zhang (Migration) [2019] AATA 6430 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhonglin Zhang

CASE NUMBER:  1908231

DIBP REFERENCE(S):  BCC2015/816921, BCC2018/1122379

MEMBER:Helena Claringbold

DATE:5 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 05 November 2019 at 11:59am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – did not notify department of change in circumstances – divorced wife – claimed did not inform Department of divorce because relationship did not change – claimed reliant on ex-wife for visa information – poor English – inconsistent information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 104, 107, 109, 359AA
Migration Regulations 1994 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 13 March 2015, Mr Zhonglin Zhang (the applicant) was granted a Subclass (155) (Five Year Resident Return) visa.

2. On 29 March 2019, a delegate of the Minister for Immigration and Home Affairs cancelled the applicant’s visa under s.109(1) of the Migration Act 1958 Act (the Act). The delegate cancelled the visa on the basis that changes in the applicant’s circumstances were not notified to the Department. 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 Ms Lili Yang. 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 his 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 files 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.

   The effect of s.109 of the Act

8. 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.

9. 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.

10. 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?

11. 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.104 of the Act. This provision provides that:

    (1)  If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

12. Section 107A provides that failure to comply with s.104 of the Act in connection with a previous visa application may be grounds for cancellation of a current visa.

    Notice of Intention to Consider Cancellation (NOICC)

13. On 23 January 2019, a NOICC was sent to Mr Zhang.  Information detailed in the NOICC and mirrored in the delegate’s decision record includes the following.

    ‘Section 107A Provides that failure to comply with section 104 of the Act in connection with a previous application may be grounds for cancellation of a current visa.  As such, not notifying of a change in circumstances in relation to your Spouse (Migrant)(subclass 100) visa application lodged on 24 December 2007, may result in the Class BB subclass 155 Resident Return visa granted on 13 March 2015 being liable for cancellation.

    If you did not comply with s.104 – changes in circumstances to be notified, your visa may be cancelled.’

    Particulars of grounds for cancellation

    You were granted a spouse (Provisional)(subclass 309) visa on 12 February 2008 on the basis of a relationship with the sponsor Wenjing Wang.  

    You completed and signed form 47SP – Application for migration to Australia by a partner, on 18 December 2007 and submitted the form in support of your Spouse (Migrant)(subclass100) visa application on the basis of a relationship with the sponsor Wenjing Wang.

    At item 103 of Form 47SP, under the heading ‘Declaration it states, in part, the following:

    I will inform the department if my relationship with my partner breaks down or ends in divorce, separation or death before this application is decided.

    Based on the information you provided and after meeting the other relevant criteria, the spouse (Migrant)(Subclass 100) visa was granted on 27 August 2010.

    Subsequent information received by the Department indicating, that the visa holder failed to declare a change in circumstances prior to the grant of the spouse (Migrant)(Subclass 100) on 27 August 2010.

    On 29 February 2016, a Partner Combined (Subclass 820/801) visa application was lodged with the Department declaring you as the sponsor.

    In support of that application you submitted a Form 40 SP – Sponsorship for a partner to migrate to Australia.

    At Question 27 of the Form 40 SP states:

    Have you been married to a person other than the current visa applicant (including if you are still legally married to that person)? You answered ‘Yes’.

    The form requested details of the previous spouse if applicable.  No further details of your previous spouse were provided.

    Amongst supporting documents provided in the Partner visa application was a Notarial Certificate dated 21 November 2014.  The Notarial Certificate stated, in part, the following:

    This is to certify that Zhang Zhonglin registered divorce with Wang Wenjing at Beijing Chongwen District Civil Affairs Bureau on 29 April 2009.

    According to the above documentation you divorced Wenjing Wang approximately 16 months prior to the grant of the spouse (Migrant)(subclass100) visa.

    Given this information, I consider that you have failed to comply with section 104 of the Act as you failed to notify the Department of a change in circumstances prior to the grant of the Spouse (Migrant)(subclass 100) visa.

    The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this notice and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.’

    Response to the NOICC

14. On 6 February 2019, Mr Zhang’s migration agent responded to the NOICC and provided a statutory declaration signed by Mr Zhang dated 6 February 2019.  Mr Zhang provided information about his relationship with Ms Wang including the following: he did not retain a lawyer for the visa application sponsored by Ms Wang. He relied on Ms Wang who was familiar with and confident about the Australian legal system. He had limited English and limited knowledge about the Australian legal system. He completed the visa application forms under Ms Wang’s guidance. After submitting the visa application and attending an interview the visa was granted. He settled in Australia and Ms Wang cared for the household. In 2009 during Chinese New Year, Ms Wang wanted to apply for divorce. He was shocked as he believed that they were happy and disagreed with the divorce.  He was concerned that a divorce would contradict his visa application. However, Ms Wang advised him that:

    ‘In Australia there are many types of relationship which amount to be the spouse.  It can be marriage or de facto relationship. If we are still in a de facto relationship (after divorce), then it won’t contradict with your visa condition. You go back to China with me now and we apply for divorce, we are still together as de facto relationship.  In this way I can still sponsor you. In Australian legal system, the de facto relationship is the same as marriage. I can still sponsor you after a divorce.’ 

15. Mr Zhang stated that he trusted Ms Wang and believed that a de facto relationship to be the same as a married relationship. He didn’t have good English and didn’t seek legal advice and didn’t have friends who could assist him. Ms Wang kept her promise of fulfilling her obligation after marriage. They remained intimate and lived in their matrimonial home even though the divorce had been granted. Their life did not significantly change. During this time Ms Wang mentioned to him that she might not be able to stay every night as she needed to look after her daughter’s baby. On returning home one day he saw that their home was for sale. He felt cheated and let down by Ms Wang whom he trusted. He did not inform the Department about the divorce because their relationship did not change much.  He now understands that he should have sought assistance from the Australian Government and should (have) reported his change in circumstances. Mr Zhang said that if the Department believe that non-compliance exists, he sincerely apologises and regrets his lack of knowledge.

16. The Tribunal considered the information relating to the NOICC and the visa holder’s response to the NOICC.  It is apparent that Mr Zhang clearly understood the reasons for the cancellation of the visa.  Mr Zhang told the Tribunal that he didn’t understand the status of his relationship with Ms Wang in Australia.  He said he relied on her when she told him that their relationship, after their divorce, would be considered a partner relationship and he accepted her advice. He confirmed that he and Ms Wang became divorced on 29 April 2009 and lived together for ‘a few months’ after their divorce.

17. As declared in the NOICC Mr Zhang completed and signed the form 47SP – application for migration by a partner on 18 December 2007. He submitted that form in support of his Spouse (Migrant)(Subclass 100) visa application based on his spousal relationship with Ms Wang, his sponsor. The Tribunal finds that, Mr Zhang declared that ‘I will inform the Department if my relationship with my partner breaks down or ends in divorce, separation or death before this application is decided’ and that information is taken to be an answer to a question in the application form.  The Tribunal is guided in this finding by s.99 of the Act, which broadens the scope of what constitutes an answer to a question in a visa application form for the purposes of s.100, s101(b), s.102(b), s.104 and s.105. Section 99 of the Act determines that:

    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.

18. The Tribunal finds that Mr Zhang in providing an answer that, he would inform the Department if his relationship with Ms Wang ‘breaks down or ends in divorce or separation or death before the application is decided’, is incorrect in the new circumstances, because he and Ms Wang divorced in April 2009 and he did not inform the Department of his change in circumstances. As a result, the answers he provided in the visa application form were incorrect in the new circumstances and he did not inform an officer in writing of the new circumstances and of the correct answers in them.

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

    Should the visa be cancelled?

20. 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).

21. 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 Migration Regulations 1994 and are discussed below.

    The correct information

22. Ms Wang sponsored Mr Zhang for a permanent partner visa.  The visa was granted on 27 August 2010. However Mr Zhang and Ms Wang became divorced on 29 April 2009.  Therefore at the time the permanent partner visa was granted Mr Zhang and Ms Wang had been divorced for approximately 16 months. Mr Zhang failed to inform the Department about his change in circumstances. The Tribunal does not accept Mr Zhang’s explanation of his reliance on Ms Wang or his English language capability as reasons for not informing the Department about his change in circumstances. 

    The content of a genuine document 

23. This factor is not applicable.

    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

24. Mr Zhang was granted a permanent partner visa based on his spousal relationship with Ms Wang, who sponsored him for the visa. Mr Zhang failed to inform the Department that his circumstances had changed and that he and Ms Zhang divorced approximately 16 months before he was granted the permanent partner visa. Mr Zhang told the Tribunal that he and Ms Wang continued to live together for a few months after the divorce. Mr Zhang’s migration agent argues that Mr Zhang and Ms Wang were in a genuine relationship and the Department was satisfied of their relationship and granted the visa.  He provided the Tribunal with copies of individual statutory declarations signed by Ms Wang and Mr Zhang on 16 November 2009. The declarations stated the following that they their relationship began in 2005 and they have lived together for four years, that they jointly own real estate or other assets and have joint financial liabilities and joint responsibility for the care and support of children and that they undertake joint social activities and represent themselves to other people as being married.  They crossed out ‘in a de-facto relationship’ and referred to attached papers. The Tribunal is of the view that the permanent partner visa was granted to Mr Zhang wholly or partly on incorrect information. Mr Zhang’s migration agent argued that Ms Wang and Mr Zhang continued to live in a de facto relationship after their divorce and would have satisfied the criteria for the grant of the visa. However, Mr Zhang told the Tribunal that he and Ms Wang lived together for a couple of months after their divorce in April 2009 and the visa was granted on 27 August 2010. The Tribunal considers that, had Mr Zhang informed the Department about his divorce from Ms Zhang, it is likely the permanent partner visa would have been refused. 

    The circumstances in which the non-compliance occurred

25. On 24 December 2007, Mr Zhang applied for combined Partner subclass 309/100 visas. The application was based on his spousal relationship with Ms Wenjing Wang, his sponsor. On 12 February 2008, he was granted a Subclass 309 partner visa and subsequently, on 27 August 2010, he was granted a Subclass 100 partner visa. Mr Zhang subsequently applied for permanent residency in Australia and he was granted a Subclass 155 five year resident return visa on 13 March 2015.

26. On 29 February 2016, Mrs Lili Yang, Mr Zhang’s current spouse, lodged combined Partner Subclass 820/201 visa applications with the Department.  Mr Zhang was declared as the sponsor for the applications. In support of the partner visa applications, Ms Yang provided the Department with a Notarial Certificate dated 21 November 2014.  This recorded that Mr Zhang and Ms Wenjing Wang registered their divorce on 29 April 2009.  Mr Zhang failed to inform the Department of his divorce from Ms Wang and of his change in circumstances.  As a result approximately 16 months after he divorced Ms Wang he was granted the Subclass 100 partner visa.

27. Mr Zhang provided a statutory declaration dated 6 February 2019 in his response to the NOICC, where he stated the following: when he arrived in Australia he was very happy to be able to live with Ms Wang. Ms Wang found him a job and he was soon able to share living expenses. Ms Wang took care of the living expenses and he took care of the cleaning. When they were free they drove to different places for holidays and life was as usual and nothing had changed. Ms Wang was familiar with the Australian legal system. He relied on and was guided by Ms Wang and he completed the visa application forms with her help. He had limited English and didn’t seek legal advice. In 2009 during the Chinese New Year Ms Wang wanted to apply for divorce in China and he was shocked. Ms Wang told him that even though they would be divorced, as they continued to be in a de facto relationship, she could continue to sponsor him for the visa. After their divorce (29 April 2009) they continued to live in their matrimonial home in an intimate relationship and their life together did not change significantly. He did not inform the Department about the divorce because their lives had not changed much after their divorce and he believed their relationship to be the same as a married relationship. During this time Ms Wang told him that she might not be able to stay every night as she had to look after her daughter’s baby. One day, when he was coming home he saw a sign on their house.  He looked closely at the numbers on the sign and realised it was a for sale sign for their matrimonial property. He and Ms Wang talked and tried to reconcile for a short time.

28. In a statement provided to the Tribunal dated 11 October 2019 Mr Zhang stated the following: he and his daughter arrived in Australia on 24 December 2007 and he was granted a Subclass 309 visa on 12 February 2008. One year later, his relationship with Ms Wang became violent; she acted aggressively and abused him in front of his daughter. She threatened to throw him into the forest and to kill him. Ms Wang had a newborn grandchild and asked Mr Zhang to obtain financial assistance from his parents.  When he refused she threw his clothes out the window and swore at him. He was afraid that if Ms Wang left him he would not survive in Australia. His daughter, who was forced to live in the garage, was attending university and receiving a better education and would have a bright future. During the New Year in 2009, Ms Wang and Mr Zhang’s daughter fought, however the three of them enjoyed a peaceful meal together. That night, Ms Wang sat on their bed and said she wanted to register for a divorce. Ms Wang and Mr Zhang went to China and registered their divorce (29 April 2009). They returned to Australia and he was happy.  Ms Wang appeared less aggressive than previously. They maintained an intimate relationship and shared household chores and responsibilities. One day in June/July 2010 he returned home to find a small board standing in front of the house. He did not understand English and had no idea what the sign was for. He saw the number of their house and asked his daughter what it was for and she told him that their house was for sale. Ms Wang returned home and told Mr Zhang their mortgage was too high.  In early August 2010 they moved to accommodation in Carlton. Ms Wang lived in the granny flat with them for the first few days. She then said her grandchild was sick and her daughter needed help. She visited Mr Zhang for dinner and they were sometimes intimate. In October 2010, she visited four or five times. He has not been in contact with Ms Wang since November 2010. He did not mention the family violence previously because he considered it family scandal.

1. The Tribunal put information to Mr Zhang under s.359AA of the Act.  The relevance and consequence of the information was explained to him and he was invited to comment on or respond to the information and told he could seek additional time to do so.  Mr Zhang sought and was granted additional time to comment on or respond. The information is as follows:

   In February 2016, Ms Yang, applied for partner visas sponsored by Mr Zhang. The Tribunal has before it the Department’ case file BCC2016/955993 relating to Ms Yang’s partner visa applications. As part of the visa applications Mr Zhang provided a statement signed and dated 8 March 2016. 

   He stated the following: in 2008 he applied for Australian permanent residency because he married Ms Wang. They lived in Hurstville and things changed quickly.  Ms Wang went on a business trip and he saw a for sale sign on their house. Two days later, Ms Wang returned home and stated that she would not stay at home as she had business. He followed Ms Wang and saw a man drive her away. After that, she seldom stayed at home and shortly after she asked for a divorce.

2. In a post hearing submission Mr Zhang’s migration agent provided a statement from Mr Zhang stating the following: his migration agent told him he must be truthfully when recounting his evidence to the Tribunal. His relationship with Ms Wang was 10 years ago. He checked documents to recall details of his past with Ms Wang. Ms Wang and the applicant registered their divorce in China in April 2009. They sold their house in June/July 2010 and settled the sale in August 2010 and not 2009 as he remembered. He provided a real estate document recording a sale of a Millett Street, Hurstville address on 5 August 2010. He is unsure where the inconsistencies in the information he provided in his previous statements are. He totally forgot what he wrote when he ‘I applied [for a] visa for Lili Yang back in 2016’. After the Tribunal hearing he checked his previous statement, which was attached to Ms Yang’s partner visa application. He said he realised that due to his carelessness the time order of events (in the statement for Ms Yang’s visa application) is very messy. Because seven or eight years had passed before he drafted the statement for Ms Yang’s visa application in 2016, he could not recall the exact date and order of each event in detail.

3. The non-compliance took place when Mr Zhang failed to advise the Department of his change in circumstance. Mr Zhang provided inconsistent information and multiple scenarios about his relationship with Ms Wang.  In one version, he claimed the following: he was happy to live with Ms Wang and shocked when she told him she wanted a divorce. After the divorce they continued to live together in an intimate relationship and their lives did not change. He believed their relationship to be the same as a married relationship.

4. In another version, he claimed the following: a year after his arrival in Australia in 2007 Ms Wang became violent. He and his daughter suffered family violence perpetrated by Ms Wang. Ms Wang and Mr Zhang went to China and registered their divorce (29 April 2009). They returned to Australia and he was happy.  Ms Wang appeared less aggressive than previously. They maintained an intimate relationship and shared household chores and responsibilities. One day in June/July 2010, he returned home to find a for sale sign standing in front of the house. In early August 2010, they moved to accommodation in Carlton. Ms Wang lived in the granny flat with Mr Zhang and his daughter for the first few days. She then said her grandchild was sick and her daughter needed help. She visited Mr Zhang for dinner and they were sometimes intimate. In October 2010, she visited four or five times. He has not been in contact with Ms Wang since November 2010. He did not mention the family violence previously because he considered it family scandal.

5. In Ms Yang’s visa application, he claimed the following: his relationship with Ms Wang changed rapidly. When Ms Wang returned from a business trip she told him she would not stay home because she had business and he saw a man drive her away.  After that, she seldom stayed home and shortly after asked for a divorce. He told the Tribunal the following:  after he and Ms Wang divorced (29 April 2009) they continued to live together for a couple of months. The Tribunal does not consider Mr Zhang to be credible. The Tribunal is of the view that Mr Zhang could not have been under any misunderstanding about the effect his change of circumstances may have had on the permanent partner visa application which was granted to him 16 months after his divorce from Ms Wang.   

   The present circumstances of the visa holder

6. In his response to the NOICC, Mr Zhang stated the following: he has lived in Australia for more than ten years and has integrated into the Australian community. In 2012 he set up his own business. In 2018, he was offered employment and is paid $8,000 monthly. He also invested in a project and plans to set up an engineering company and expand his business interests in Australia including investing in the stock market. He sold two properties in China and should he relocate to China he would face substantial financial loss. He may be unable to purchase another property in China and due to his age and time living outside of China may find it difficult to obtain employment. He would have to begin again and could hardly meet basic accommodation and living standards. He would lose his company, business and investment in Australia and be forced to sell properties in Australia and experience significant financial loss. His employment prospects in Australia are high because he is skilled and qualified and his business achieves satisfactory outcomes and benefits the Australian community. Mr Zhang is the male elder to his daughter and two grandchildren who live in Australia and he visits his grandchildren every now and then.  He would be separated from them and unable to visit and help them and his daughter would suffer hardship. Mr Zhang considers Australia his home. In a statement provided to the Tribunal on 11 October 2019, Mr Zhang stated that he has suffered severe financial loss in Australia and China. He has a loan in China and his Chinese pension won’t cover the re-payments for the loan and he would have no-where to live in China. He also invested in establishing a training program in China which he believes will promote bi-lateral co-operation between China and Australia.

7. Mr Zhang told the Tribunal the following: the training program ran in the past you but because of his visa status ceased.  The program aims to train carers in China and place them in Australia via different agencies. His daughter is involved in the business but is not experienced and he needs to help her. Mr Zhang’s migration agent stated that the training program had not finished, rather, it halted and would recommence. The Tribunal received a post Tribunal hearing submission the Tribunal stating the following: in 2017, the Shanghai Research Institute and Australia Auspicious Care Company prepared to set up a qualified aged care staff training school in Shandong, China. However, due to issue the work is currently suspended but they are willing to continue further work in this area. The letter contains several signatures.  The letter is without any heading to identify who it is from and the signatures are without identification. Another document is titled China Ageing Development Foundation – Senior Care Project (Shanghai) R&D Centre. The submission also contains a Donation Cooperation Authorisation Agreement between, party A) (China Ageing Development Foundation – Senior Care Project (Shanghai) R&D Centre) and party B) (Greatwings Mining Pty. Ltd. Auspicious Care Pty. Ltd.) The document details the implementation of the National Five Year Plan and its purpose and mission. It noted that the agreement shall take effect seven days after party B’s donation is received in party A’s account. Also provided is a copy of Mr Zhang’s business card. The Tribunal was advised that Mr Zhang has departed Australia to attend to his father who is ill in China. The Tribunal accepts that the cancellation of Mr Zhang’s visa will present him with re-settlement, emotional, business and financial challenges.

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

8. Mr Zhang and Ms Wang divorced in April 2009. He was granted the permanent partner visa 16 months later. There is no information before the Tribunal that Mr Zhang made any effort to advise the Department about his change of circumstances prior to the permanent partner visa being granted to him. The Tribunal is of the view that Mr Zhang could not have been under any misapprehension about the requirement that he advise the Department of his change in circumstances and that he was divorced from Ms Wang, his sponsor. Mr Zhang’s evidence is that he did not advise the Department about his changed circumstances because he relied on Ms Wang. He claims that his English was poor and he didn’t seek legal advice or approach the Australian Government for assistance. He told the Tribunal that he still did not understand how relationships are considered in Australia. He has made various claims about when his relationship with Ms Wang ceased. However the fact is that Mr Zhang and Ms Wang divorced in April 2009 and he did not inform the Department of his change in circumstances. The Tribunal finds that Mr Zhang deliberately did not advise the Department about his change in circumstances and his change in circumstances were critical to the grant of the visa.  

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

9. There is no information to suggest any other instances of non-compliance.

   The time that has elapsed since the non-compliance

10. The non-compliance occurred during the processing and grant of the permanent partner visa on 27 August 2010. More than nine years have elapsed since the non-compliance with s.104 of the Act.

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

11. Mr Zhang told the Tribunal that he was involved in a car accident.  However, he was not fined and did not receive any penalty resulting from the accident. There is no information to suggest any other breaches of the law since the non-compliance occurred.

    Any contribution made by the visa holder to the community.

12. Mr Zhang stated that he has contributed to the Australian community through his various business interests. He understands social and business rules and wanted to do his best to contribute to Australia. He felt that the training program created in China to deliver carers into the Australian marketplace would improve bi-lateral conditions between Australia and China. Ms Yang told the Tribunal that Mr Zhang is a good man and has worked every day that she has been with him. Mr Zhang’s migration agent told the Tribunal that Mr Zhang’s training and engineering business are in high demand and will deliver for the Australian community. The Tribunal accepts that Mr Zhang has registered a business name and registered the business with ASIC.  It notes that Mr Zhang and his daughter are recorded as directors and secretaries of the business and his son-in-law is recorded as a director. The Tribunal accepts that the cancellation of the visa will present Mr Zhang with business challenges.

    Whether there are persons in Australia whose visas would, or may, be cancelled consequentially

13. On 29 February 2016, Mr Zhang sponsored Ms Lili Yang in a combined partner visa application. On 16 September 2016, the first stage partner (Subclass 309) visa was granted to Ms Yang. Information before the Tribunal is that Ms Yang is currently in Australia. The Tribunal accepts that the result of the cancellation of Mr Zhang’s visa is that Ms Yang’s visa will be subject to consequential cancellation. However, Ms Yang’s visa was granted to her as a result of the visa held by Mr Zhang.  The visa held by Mr Zhang was granted to him as a result of him failing to advise the Department of his change in circumstances. Mr Zhang told the Tribunal that his daughter, who was granted a partner visa as Mr Zhang’s dependent, has obtained Australian citizenship and after the Tribunal hearing he provided a copy of her the Australian passport to the Tribunal.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

14. There is no information that Mr Zhang’s circumstances would enliven or breach Australia’s international obligations.

    Whether there are mandatory legal consequences to a cancellation decision

15. A cancellation of the visa holder’s visa may see the visa holder become an unlawful non-citizen.  He could be detained and removed from Australia. He could also be limited in the visas he could apply for in Australia or prevented from being granted a temporary visa for a specific time. These consequences are a result of the Mr Zhang not advising the Department of his change in circumstances which lead to the cancellation of his visa. The Tribunal is of the view that the Mr Zhang can avoid any of these difficulties by departing Australia on a voluntary basis.

16. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal has considered the evidence individually and as a whole. The Tribunal feels that there is an expectation that neither the visa holder nor Ms Yang should benefit as a result of Mr Zhang not advising the Department of his change in circumstances. The Tribunal finds that, the requirement that the visa holder depart Australia and the difficulties that may present the family does not outweigh the significant change in his circumstances during the processing and grant of the Subclass 100 partner visa application or his total disregard for Australia’s legal requirements. The Tribunal has weighed the applicant’s circumstances against the adverse findings that the Tribunal has made above regarding him not advising his change in circumstances. The Tribunal has formed the view that the breach is significant and central to the applicant’s ability to be granted the Partner visa. Essentially, if the correct information was known, the Tribunal does not consider that the applicant would have been granted the visa. In these circumstances, the Tribunal has determined that the adverse circumstances outweigh the circumstances favouring the applicant.

17. 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 holder’s visa should be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Helena Claringbold
    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.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    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.

    Section 99    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.