Zhao (Migration)

[2022] AATA 750

Zhao (Migration) [2022] AATA 750 (23 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Heli Zhao
Mr Minbo Zhao

CASE NUMBER:  2101433

HOME AFFAIRS REFERENCE(S):          BCC2020/2833432

MEMBER:Kira Raif

DATE:23 February 2022

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 February 2022 at 4:58pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect answers given in previous visa application – balance of family test – child in home country not declared – parentage – intermittent relationship with child’s mother while both married to others – unaware of child or of paternity – DNA test just before leaving home country and result received just after – discretion to cancel visa – contradictory information given in mother’s partner visa application, including child’s birth certificate – breakdown of relationship and withdrawal of partner visa application does not affect paternity issue – mental health – applicant’s and adult children’s settled life in Australia – no reviewable decision in relation to second applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 107(1), 107A, 109(1)
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 143.213

CASE
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 first named applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in February 1962. He entered Australia holding a Contributory Parent visa. On 14 December 2020 the applicant was granted a Resident Return visa (RRV). On the same day, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act in relation to the previously held Parent visa. The applicant did not provide a response to the NOICC and his visa was cancelled on 22 January 2021. The applicant seeks review of the delegate’s decision.

3. The applicant’s son was included in the present application for review. However, there is no evidence before the Tribunal to indicate that his subclass 155 visa was cancelled, either as part of the decision in relation to his father’s visa or independently (in which case he would require a separate application for review). That is, there is no Tribunal-reviewable decision in relation to the applicant’s son. The Tribunal thus finds that it has no jurisdiction in relation to Mr Minbo Zhao.

4. The applicant provided a number of medical reports to the Tribunal stating that he was unable to give evidence due to his poor mental state. The Tribunal granted multiple adjournments. The applicant’s representative has now confirmed, both prior to the hearing and at the commencement of the hearing, that Mr Zhao was able to participate in the hearing and the applicant himself confirmed, at the commencement of the hearing, that he was able and willing to take part in the hearing and capable of giving evidence. In these circumstances, the Tribunal decided to proceed with the hearing.

5. The applicants appeared before the Tribunal on 23 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their 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

6. 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.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

8. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa.

   Did the notice comply with the requirements in s.107?

9. 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.

10. 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?

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. 101 of the Act.

12. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

13. The applicant made the application for the Contributory Parent visa in June 2013 and he was sponsored in that application by his daughter. The applicant completed an application form and gave the following answers:

    ·At Question 54 the applicant was asked to provide details of all of his children under the age of 18. The applicant referred to Minbo Zhao.

    ·At Question 58 the applicant was asked to provide details of all other family members. The applicant referred to his two children, Yan Zhao resident in Australia and Minbo Zhao, who was included as a migrating child.

    ·At Question 73 the applicant signed a declaration that he had read and understood the information supplied to him in the application and declaring that the information he had supplied was complete, correct and up to date.

14. The applicant was granted the Contributory Parent visa, having met the Balance of Family test and other criteria, and was granted the visa on 3 July 2015. The applicants arrived in Australia on 14 September 2015.

15. The primary decision record indicates that integrity checks carried out by the Department established that the applicant has another child, Xuanyu Zhao (born on 8 June 2012) resident in China. It is stated that on 14 July 2017 the applicant’s current spouse, Ms Jing Wang, applied for a Partner visa, sponsored by the applicant. In that application she included the birth certificate which records the applicant as the father of Xuanyu Zhao. It is stated that Xuanyu Zhao arrived in Australia with her mother Jing Wang in January 2020 and departed in September 2020.

16. The primary decision record indicates that the applicant did not respond to the NOICC in the present case, however, the delegate referred to the applicant’s response to the earlier NOICC issued with respect to the cancellation of the previously held Contributory Parent visa. In his response to the first NOICC the applicant states that he did not know he had a daughter at the time he applied for the Contributory Parent visa and at the time the visa was granted. The applicant submits that Ms Wang presented him with the child’s birth certificate which showed her ex-husband as the child’s father. The applicant states that he only became aware of his paternity of Xuanyu Zhao when the DNA test was done in September 2015, which resulted in the child changing the family name to his name. The applicant presented a statement from Ms Wang, essentially confirming that evidence, the child’s birth certificate and the results of the DNA test.

17. In his written submission to the Tribunal dated 12 February 2022 the applicant appears to concede that he did not mention another child when making the Parent visa application and he explains the circumstances of the child’s birth and when he learned about the existence of that  child. In oral evidence the applicant also stated that when he came to Australia, he did not know that the child was his child. The applicant states that he did the DNA test just before he came to Australia and the results became available after his entry to Australia. The applicant states Ms Wang told him the child was his but he was not sure and that is why he determined to do the test. The applicant submits that Ms Wang provided incorrect information in her Partner visa application.

18. These circumstances are addressed more fully below. For the purpose of establishing the breach, the Tribunal is mindful that under s. 100 of the Act, 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. It is therefore not necessary, for the purpose of establishing the breach, to determine whether the applicant was aware of his paternity of the existence of his younger daughter. The DNA test results confirm that the child is the biological child of the applicant. The Tribunal finds that the applicant had another child and he failed to mention that child in the application form. The Tribunal finds that the applicant gave incorrect answers on the application form as set out above. The Tribunal finds that there was non-compliance by the applicant with s. 101 in the way described in the s.107 notice.

    Should the visa be cancelled?

19. 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).

20. 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. They are:

    The correct information

21. The correct information is that the applicant had another biological child who was not referred to in the Parent visa application form.

    The content of the genuine document (if any)

22. 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

23. To be granted the Contributory Parent visa the applicant had to meet the Balance of Family test, as required by cl. 143.213. The Balance of Family is defined in r. 1.05 and, essentially, requires the applicant to have the same or greater number of children in Australia as overseas. The applicant declared one daughter in Australia and a dependent son in his application and did not declare another daughter. There is nothing to suggest that the applicant’s daughter had been removed by court order, adoption or by operation of law from the applicant’s custody, that the child resided in a country where she suffered persecution or abuse of human rights or in a refugee camp or had been registered as a refugee. That is, there is nothing to suggest that the applicant’s youngest child would have been excluded under r. 1.05(3). Thus, the correct information is that the applicant had one child in Australia and two children overseas. He would have been unable to meet the Balance of Family test and cl. 143.213 if the information about his daughter was known.

24. The Tribunal finds that the decision to grant the visa was based on incorrect information.

    The circumstances in which the non-compliance occurred

25. The applicant claims in his evidence to the delegate that he was unaware of his relationship with his daughter as his wife told him the child was from another relationship. The applicant submits that he provided correct information as it was known to him and that he did not know about his paternity of the child until the DNA test was completed in 2015, a few days before he came to Australia.

26. In his written submission to the Tribunal the applicant states that he and the child’s mother Ms Wang had a relationship when both were married to their respective partners and her ex-husband is identified as the child’s father on the birth certificate. The applicant states that he was not aware that he was the biological father of Xuanyu Zhao and was not concerned about paternity until he was granted the Australian visa and Ms Wang asked him to consider their relationship seriously and told him about his paternity of that child. The applicant states that a few days prior to his departure for Australia he completed the paternity test, the results of which became available after his arrival in Australia. The applicant submits that it was only after the paternity results were available that his relationship with Ms Wang developed to the next stage. In July 2017 he divorced his ex-wife and married Ms Wang in August 2017 before sponsoring her for a visa.

27. In oral evidence, the applicant told the Tribunal that when the child was born, he had no contact with Ms Wang for about a year and only then he realised she had a child. When the child was over one years old, Ms Wang told him that she divorced and they used to go out for food often. The applicant states that they were lovers and he sympathised for her having a child on her own. The applicant states that others had commented on his likeness with the child so he had his doubts but he did not know the child was his until receiving the DNA results. The applicant also told the Tribunal that after coming to Australia, he wanted to invite his first partner to Australia but she did not want to migrate, so he decided to sponsor Ms Wang for the visa.

28. The Tribunal does not accept the applicant’s evidence. The Tribunal considers it odd that the applicant chose to do the DNA test only a few days before his departure for Australia. The applicant explained that before his migration, he has a conversation with Ms Wang and she told him about the paternity of the child because they were going to be separated and that is when he asked for the DNA test. However, the Tribunal is mindful that the ap made the application for the visa some years earlier and was granted the visa in July 2015, about two months prior to his departure from China. It is not clear to the Tribunal why this important conversation would not have taken place during the visa processing or after the visa grant, when it would have been clear to everyone that the applicant would be travelling to Australia. The Tribunal does not accept that  Ms Wang told the applicant about his paternity only a few days before his departure from China. In the Tribunal’s view, the applicant and Ms Wang had intentionally delayed the DNA test so that  the applicant could enter Australia without any issues and later maintain that he only found out about his paternity after entering Australia.

29. It is also of significant concern to the Tribunal that the applicant’s evidence appears to contradict the information in the primary decision record. The primary decision record states that when Ms Jing Wang made the application for the Partner visa, sponsored by the applicant, she provided a number of photographs depicting the applicant and his daughter Xuanyu Zhao, dated between 2012 and 2017, including during holidays. Ms Wang is recorded to have stated that she divorced her former husband in November 2011 (and the child was born in June 2012). It is noted in the primary decision record that Ms Wang provided a statement in her Partner visa application in which she refers to having a close relationship with the applicant since 2009, operating two businesses together and to the birth of their daughter in 2012, which ‘added more joy to them’. Ms Wang refers to them living together inseparably until the applicant’s migration to Australia and functioning as a family.  Ms Wang’s evidence indicates that the applicant had a more meaningful relationship with Ms Wang over many years - contrary to his evidence to the Tribunal that it only became more serious after 2017 -  and that he was aware of the birth of his daughter, and his paternity, from the time of the child’s birth. The Tribunal places particular weight on Ms Wang’s statement that the birth of the child in 2012 added more joy to both her and the applicant. Ms Wang’s evidence contradicts the applicant’s evidence in response to the NOICC and to the Tribunal that he was not aware of his paternity and was not in a serious relationship with Ms Wang before his migration to Australia.

30. The applicant told the Tribunal that the information in Ms Wang’s partner visa application was untrue and he did not pay much attention to it because of his mental state. The applicant states that they did not live together daily and he genuinely did not know he was the father of the child. Mr Minbo Zhang told the Tribunal that it is not true that his father lived with Ms Wang as his father lived with him and his grandparents and he had never known about her before coming to Australia and. Mr Minbo Zhang told the Tribunal that he never knew about the existence of a younger sister before he came to Australia. The applicant states that he would not jeopardise his and his children’s chance to live in Australia by providing incorrect information. The applicant’s representative confirmed that he acted for Ms Wang in the Partner visa application and that, in his view, the applicant had no knowledge of the content of his application.

31. The Tribunal notes that the applicant acted as a sponsor for Ms Wang and would have been required to complete and sign some forms. The application was prepared by the applicant’s migration agent. The Tribunal does not accept that the applicant was entirely ignorant of the content of Ms Wang’s visa application, given its importance to both partners. The Tribunal is of the view that the applicant was aware of the content and the claims made by Ms Wang. 

32. The Tribunal decided to place greater weight on the information supplied by Ms Wang in her Partner visa application. The Tribunal considers that the applicant’s subsequent evidence, including his response to the NOICC and evidence to the Tribunal, has been provided  to assist the applicant with the visa issue and to avoid the cancellation of the visa. The Tribunal considers the evidence supplied by his wife in the Partner visa application to be more truthful. Even if Ms Wang had exaggerated the nature of her relationship with the applicant, the Tribunal does not accept she was entirely untruthful about the applicant’s interactions with their child.

33. Ms Wang’s evidence, as set out in the primary decision record, indicates that the applicant and Ms Wang started a relationship in 2009 after Ms Wang ended her relationship with her previous spouse, and that from that time they were in a genuine and committed relationship. Ms Wang refers to the birth of their daughter, which ‘brought joy’ to their lives, and the fact that they travelled together. There is no mention of the fact that the birth of the child was not known to the applicant or that the applicant was misled to believe that the child was not his. The application includes photographic evidence of the applicant and the child. In the Tribunal’s view, that offers strong evidence that the applicant was aware of the existence of the child from the time of her birth and was aware of his paternity of the child and treated the child as his own.

1. The Tribunal has formed the view that the applicant was aware of the existence of the child and of his paternity. The Tribunal is of the view that the applicant had deliberately misled the Department by not disclosing the existence of that child in order to meet the Balance of Family test and to be granted the visa. Having been granted the permanent visa, the applicant and Ms Wang had almost immediately arranged the DNA testing in order to create the fiction that the applicant was unaware of his paternity of the child. The Tribunal finds that the breach was intentional and deliberate.

   The present circumstances of the visa holder

2. The applicant entered Australia in 2012 and 2014 on visitor visas and in 2015 as a holder of a permanent visa. The applicant has been living in Australia for a number of years. His daughter is an Australian resident and his son, was included in the application, also resides in Australia. The primary decision record indicates that he has made an application for the Australian citizenship which was pending.

3. In his evidence to the Tribunal the applicant states that he and his children are well settled in Australia and his daughter is an Australian citizen. They have formed friendships and are involved with the local community. The Tribunal accepts that evidence. The applicant refers to the settlement of his son Minbo in Australia and refers to his sporting activities. The applicant states that Minbo completed his secondary schooling in December 2021 and has been accepted into an engineering course at RMIT. The Tribunal accepts that evidence, although it is mindful that  Minbo’s application is not the subject of this review. More importantly, the outcome of the present review would have no bearing on Minbo’s visa status because he was not included in his father’s RRV application and whatever visa Minbo holds, it cannot be reinstated whether or not the present cancellation is set aside.

4. The applicant told the Tribunal that he has lived in Australia for many years and he and his children are used to living in Australia. He has a land investment in Australia and has lent some money to his daughter to buy a property. The applicant states that his parents are no longer alive and he has nothing in China. He sold his business interests. The Tribunal is prepared to accept that evidence. In particular, the Tribunal accepts that the applicant has been living in Australia for several years and is settled in Australia. The Tribunal is prepared to accept that the applicant has few links in China, having made the decision to migrate to Australia. The Tribunal accepts that significant hardship may be caused to the applicant if he is required to leave Australia as a result of his visa being cancelled.

5. The applicant states that he suffers from insomnia, anxiety and depression, which were exacerbated by Covid and the cancellation of his visa. He refers to lack of concentration and fatigue and was diagnosed with symptoms of mental health issues of mixed depression, anxiety and stress. Having regard to the various medical reports, the Tribunal accepts that evidence.

6. The applicant states that his relationship with Ms Wang has broken down and she is now seeking a divorce. She withdrew their partner visa application in March 2021.  Although the timing of these events is of considerable concern to the Tribunal (as it appears that the claim of the relationship breakdown was made in response to the issues with the applicant’s visa and perhaps in the hope that the absence of the relationship will assist the applicant in retaining his visa), the Tribunal accepts, for the purpose of this review, that the applicant’s relationship with Ms Wang has broken down. That does not affect his paternity of the child.

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

7. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

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

8. There are no known instances of non-compliance set out in NOICC.

   The time that has elapsed since the non-compliance

9. The application was made in June 2013 and nearly nine years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

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

10. There are no known breaches of the law.

    Any contribution made by the holder to the community.

11. The applicant’s refers to his family connections (two adult children residing in Australia) and to other connections he has formed in the community. The applicant states that he and his son participate in community activities and he refers to his son’s sporting activities and study. The applicant told the Tribunal that he often helps other people, makes donations and buys clothing for the homeless. The Tribunal accepts that evidence.

12. 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.

13. The applicant’s son held the Parent visa (but not the RRV) only because the applicant was granted the Contributory Parent visa and his visa was subject to the consequential cancellation following the cancellation of the Contributory Parent visa held by the applicant. However, there is nothing to suggest the son was a member of the family unit of the applicant in relation to the RRV.  The cancellation of the applicant’s RRV would not lead to the consequential cancellation of the son’s visa.

    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.

14. The applicant’s son has turned 18 and is no longer a child. His elder daughter is also over 18.

15. The applicant’s second daughter is a minor. However, the Tribunal is mindful that she lives in China with her mother. While it may be in the best interests of a child to live with both parents, the applicant’s evidence to the Tribunal is that his relationship with the child’s mother has broken down and the mother withdrew her application for the Partner visa. If the evidence about the relationship breakdown is truthful, that means that Ms Wang does not intend to migrate to Australia as the applicant’s partner. That is, irrespective of the outcome of this review, the child would not migrate to Australia to live with both parents.

16. The Tribunal suggested to the applicant that if he was to return to China, the child will have the opportunity to live with both parents which may be in the best interests of the child. The applicant states that he is no longer in a relationship with Ms Wang and so they are no longer a family. He appears to suggest that he would not live with the child in the future because he is no longer in a relationship with the child’s mother. If that is the case, the Tribunal does not consider that the best interests of the child would be adversely affected by the cancellation of the applicant’s visa.

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

17. The applicant states that he has no home and his parents are no longer alive and ‘everything would be finished’ if he is to return to China. The Tribunal has considered these claims (which it does not necessarily accept) and does not consider that they give rise to Australia’s protection obligations. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

18. With respect to family unity obligations, as noted above, the applicant’s minor daughter resides in China. He has two adult children in Australia. The Tribunal considers that the cancellation of the visa would not lead to the applicant’s removal in breach of Australia’s non-refoulement or family unit obligations.

    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.

19. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be 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 are very limited options for the applicant to seek a visa in Australia. The Tribunal accepts that in relation to some visa categories, the applicant may be subject to an exclusion period if he was to make an application offshore.

20. The Tribunal acknowledges that if the applicant is no longer the holder of the permanent visa, he may be unable to sponsor his wife and child for a Partner visa in the future (although his evidence to the Tribunal is that the relationship has broken down and Ms Wang’s application was withdrawn). He will lose any entitlements he had as a permanent resident of Australia and may not be entitled to the Australian citizenship. The visa held by the applicant’s son may also be cancelled under s. 140, although that would be a consequence of the earlier cancellation of the Contributory Parent visa and not the present cancellation.

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

21. The applicant states that his parents have passed away and he had disposed of his property and sold his factories before migrating to Australia and he has nothing in China.

22. The applicant refers to the length of his stay in Australia, his settlement and family and social links in Australia and the loss of such links in China. The applicant states that he is used to life in Australia, as Australia is a more tolerant country. The Tribunal accepts that evidence although, for the reasons stated below, the Tribunal has formed the view that the applicant would be able to re-establish himself in China if he returns to China. The Tribunal accepts, given the applicant’s length of stay in Australia and his settlement in Australia, that the cancellation of the visa (if it to result in the applicants having to depart Australia) would result in significant hardship to the applicant.

23. The applicant refers to suffering from depression and insomnia and states that his condition would worsen if he was to return to China and be separated from his friends and family in Australia. Having regard to the various medical reports, the Tribunal accepts the applicant’s evidence about his existing medical condition.  When asked why he believes he could not get adequate medical treatment in China, the applicant stated that his condition is unusual. The applicant has not been able to explain satisfactorily why depression and insomnia are unique or unusual condition. Nor has he satisfied the Tribunal that he would not be able to access adequate treatment in China. He presented no documentary evidence about the availability or accessibility of treatment in China. On the evidence before it, the Tribunal is not satisfied that the applicant would be unable to access adequate treatment in China. The Tribunal does not accept that the applicant’s condition would be adversely affected by the cancellation of the visa or by the fact that he may be required to leave Australia as a result of the cancellation (which is not necessarily the case).

24. The applicant refers to his son’s settlement in Australia, the fact that he has spent formative years in this country and is settled in Australia, has completed schooling and has been accepted into another course. The applicant presented a number of documents relating to his son’s circumstances. The Tribunal accepts that evidence and accepts that considerable hardship may be caused to the applicant’s son if he is not permitted to remain in Australia, particularly in circumstances where he has not been involved in the provision of incorrect answers or any other wrong-doing. Normally, the Tribunal would consider that such circumstances would weigh heavily against the cancellation. However, the Tribunal does not consider that to be the case here. This is because, as noted above, the son’s visa is not dependent on the applicant’s RRV and his visa would not be subject to consequential cancellation if the applicant’s RRV remains cancelled. Conversely, if the cancellation is set aside and the applicant’s RRV is reinstated, it would have no bearing on Minbo’s own visa. In such circumstances, the Tribunal does not accept that the cancellation of the applicant’s visa would have adverse consequences for Minbo’s visa status.

25. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had completed the application form in a way that incorrect answers were given or provided and that he has not complied with s. 101 of the Act.

26. The Tribunal accepts that significant hardship would be caused to the applicant if his visa is cancelled. This is because of the length of the applicant’s stay in Australia and his settlement in this country, the presence of his two children in this country and the fact that he claims he no longer has links in China. The Tribunal accepts that the applicant may have no family support in China (if his evidence about the breakdown of the relationship with Ms Wang is accepted) and he also claims he no longer has friends in China. However, the Tribunal does not accept that the applicant would be unable to re-establish himself in China. The Tribunal is mindful that the applicant had spent the majority of his life in China, had significant financial links (he refers to ownership of some factories), family links (at least his daughter and in all likelihood, Ms Wang) and other social links in China. Despite all of these, the applicant made the decision to leave all of these behind and travel to Australia where his connections were more limited. The applicant claims he was able to establish himself in Australia. Despite the passage of time, and Mr Zhao now being older, and the various changes he refers to which occurred in China in that period, the Tribunal does not accept the evidence that Mr Zhao would not be able to re-establish himself in China, as he has been able to do in Australia, even if it may cause him some hardship.

27. The applicant states that he has friends in Australia and he would have to start again in China and he could not cope with it mentally. The applicant refers to covid and states that he could not manage on his own, without the support of family and friends. The Tribunal is of the view, however, that any emotional support the applicant receives from friends and his children in Australia need not cease if the applicant was to leave Australia as the provision of such support is not limited to circumstances where people live in the same country.

28. The Tribunal has formed the view that the applicant has not been truthful in his evidence to the delegate and the Tribunal about the circumstances of his relationship with Ms Wang and his knowledge about the paternity of his youngest daughter. The Tribunal prefers Ms Wang’s evidence provided in her Partner visa application, as set out in the primary decision record, in which she refers to a committed relationship since 2009 and joint parenting of the child. That is, the Tribunal has formed the view that the applicant was aware of the paternity of his daughter, whatever information was recorded on her birth certificate, and that he had deliberately withheld that information when applying for the Parent visa in order to meet the Balance of Family test. The Tribunal has formed the view that the breach was deliberate and that the applicant had knowingly and deliberately provided incorrect answers in order to meet the visa criteria. That weighs very strongly in favour of the cancellation.

29. The Tribunal has formed the view that Mr Zhao has not been truthful when describing the circumstances in which the non-compliance occurred. However, even if the Tribunal were to accept the entirety of his evidence (and that he was not aware of his paternity of the youngest daughter until after his arrival in Australia), the Tribunal would still exercise the discretion to cancel the visa. This is because the decision to grant the visa was based, in part but to a significant extent, on incorrect information and, importantly in the Tribunal’s view, the applicant would not have met the Balance of Family test and the visa criteria if the correct information was known. The applicant was not entitled to the Parent visa. The Tribunal would find that such considerations outweigh those that are against the cancellation.

30. The Tribunal acknowledges that the applicant has made a contribution to community. The Tribunal has found that the cancellation of the visa would not breach Australia’s international obligations.

31. Overall, the Tribunal acknowledges that there are factors that are against the cancellation. The Tribunal places particular weight on the hardship that would be caused by the cancellation, the applicant’s settlement in, and ties to, Australia and his health. However, the Tribunal has decided to place greater weight on the fact that the decision to grant the visa was based on incorrect information and, in the circumstances of this case, that the applicant would not have been able to meet the visa criteria if the correct information was known. The Tribunal has formed the view that this factor outweighs other considerations.

32. 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

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

34. The Tribunal has no jurisdiction with respect to the other applicant.

    Kira Raif
    Senior Member