Zhou (Migration)

[2021] AATA 1249

Zhou (Migration) [2021] AATA 1249 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xin Min Zhou

CASE NUMBER:  2102028

HOME AFFAIRS REFERENCE(S):          BCC2020/2251074

MEMBER:Kira Raif

DATE:28 April 2021

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 28 April 2021 at 9:12am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in primary applicant wife’s previous visa application – wife unaware of husband’s two children from another relationship – husband’s claim to have been unaware that children were his – DNA testing – children’s later applications for visas – discretion to cancel visa – balance of family test – at least possible that children were his – no relationship with children – long and settled residence in Australia, with child of marriage and grandchildren here – wife’s health and treatment – hardship if cancellation affirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 100, 101, 105, 107(1), 107A, 109(1)
Migration Regulations 1994 (Cth), rr 1.05, 1.15A, 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 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 May 1954. He had made an application for a Contributory Parent visa on 27 March 2007 as a member of the family unit of his spouse, Ms Zhen Li Liang. That visa was granted in August 2007 and in April 2018 the applicant was granted the Resident Return visa (RRV). On 22 October 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC). The applicant provided his response to the NOICC and his visa was cancelled on 16 February 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse and son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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.

6. 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?

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 s. 101 of the Act.

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

11. The applicant made the application for the Contributory Parent visa in March 2007 as the secondary applicant and he was included in the application made by his spouse Ms Zhen Li Liang. The applicant completed the application form 47PA. In that application, 

    a.at Question 53 the primary applicant was required to give details of all her and her spouse’s children under the age of 18. Ms Liang stated ‘n/a’.

    b.at Question 57 the primary applicant was required to give details of all her family members, including children and step-children. Ms Liang identified Liang Zhou, born in January 1982, residing in China. No other children were identified.

    c.at Question 58 the primary applicant was required to give details of the spouse’s family and children. Ms Liang referred to Liang Zhou.

12. In support of his visa application, the applicant provided

    a.a household register, with English translation, issued on 10 April 2006 by the Qingdao PSB. That document identified the applicant, including date of birth and his Chinese identity card number

    b.a Chinese passport issued to the applicant in February 2005 with his Chinese Identity Card number (number provided).

13. On 29 August 2007 the applicants were granted the Contributory Parent (Subclass 143) visas.

14. The primary decision record indicates that the Department verified the applicant’s Chinese Identity Card with the relevant authorities in China (Qingdao PSB) who advised that this ID number does not exist in their system. The delegate concluded that the Household register booklet and the passport purportedly issued to the applicant were bogus documents because the local authorities did not have any record of his ID card number which was contained in these documents. The primary decision record indicates that the Department contacted the authorities again to verify these documents and the authorities confirmed the documents to be genuine.

15. On 9 January 2020 the applicant sponsored Jingjing Zhou (born in September 2002) for a Child Subclass 802 visa. The application included the declaration from the child’s mother Hongmei Chen permitting the child’s migration. Also on 9 January 2020 Yiming Zhou (born in February 2005) made the application for a Child Subclass 101 visa, claiming the applicant to be the biological father and Ms Hongmei Zhou as the mother. The delegate concluded that the applicant gave incorrect answers in the application by stating that there were no children under 18. The two Child visa applications show that the applicant had two children with Hongmei Chen, born in 2002 and 2005 respectively.

16. In his response to the NOICC the applicant states that he had a relationship with Ms Chen since 2000 but due to the societal norms and moral judgment, they kept the relationship private and only met occasionally. They lived in different cities and led their separate lives. The applicant states that he was aware that Ms Chen had two children but he did not know the children were his biological children until they conducted a DNA test in August 2019. The applicant submits that at the time he made the application for the Contributory Parent visa, he did not know he had two daughters.

17. The Tribunal notes, however, that under s. 100 of the Act, an answer is incorrect even though the person who gave or provided the answer did not know it was incorrect. Thus, even if the applicant did not know that he had had two children from another relationship, the provision of incorrect answers would still be in breach of s. 101 of the Act.

18. The Tribunal finds that the applicant had two children under the age of 18 at the time the application for the Contributory Parent visa was made. The Tribunal finds that the answers to Question 53, 57 and 58 on the application form 47PA were incorrect. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. For these reasons, the Tribunal finds that there was non-compliance with s. 101 by the applicant 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. Briefly, they are:

    The correct information

21. The correct information is that the applicant had two minor children from another relationship at the time the application was made and these children were not declared when the application was made.

    The content of the genuine document (if any)

22. This is not relevant in this 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. It is a requirement of cl. 143.213 that a person must meet a balance of family test (there is no evidence the applicant was, at the time of the application, a holder of a temporary Contributory Parent visa or a substituted Subclass 676 visa). The balance of family test, as defined in r. 1.05 relevantly required the applicant and her partner to have the same number of more children in Australia than overseas. The applicant stated in his application that there was one child and failed to mention his two other children from another relationship. The Tribunal finds that information about these children was relevant to the assessment of whether the applicant had passed the balance of family test.

24. Further, the applicant made the application on the basis of meeting the secondary criteria. Relevantly, he claimed to be a member of the family unit, and a spouse of the applicant. The definition of the spouse requires a mutually committed relationship to the exclusion of all others. In this case, the applicant had two children from another relationship. While that does not necessary suggest that his relationship with the primary visa applicant was not to the exclusion of all others, the existence of these children would have been relevant to that assessment.

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

    The circumstances in which the non-compliance occurred

26. The applicant claims in his response to the NOICC that while he did have a relationship with another person and knew that she had children, he did not know that the children were his. The applicant claims it was not until the DNA test was conducted in 2019 that he knew he was the father of the two children.

27. In oral evidence, the applicant told the Tribunal that in 2007 when the application was made, he did not declare his two daughters and it was not until the DNA test was done in 2019 that he realised he had two children. The applicant states that he met the children’s mother Ms Chen at the end of 2000 in a different city and they started a ‘private’ relationship. He could only see her on business trips and it would be no more than ten times that they saw each other. They would see each other sometimes once a year and sometimes three times a year. He thought she was not married but he was not sure. When the children were born, he did ask Ms Chen about them and suggested a DNA test but she gave various excuses and refused.

28. The Tribunal has found the applicant’s explanation unpersuasive. The applicant’s evidence is that there was reasonably regular, albeit infrequent, contact between him and the children’s mother between 2000 and his migration to Australia in 2007. The applicant claims he visited her at home and would have seen the children, he was certainly aware of their births. In such circumstances, the Tribunal does not consider it plausible that the applicant would not consider the possibility of his paternity or that the issue did not arise until 2019 when the DNA test was done. The applicant’s evidence is that he did discuss at DNA test with Ms Chen but she refused and that suggests that the applicant was aware of the possibility that the child, or both children, were his children and such possibility arose well before his application for the Parent visa was made. The applicant states that he did not mention the children in his application because he was not sure about his paternity but in the Tribunal’s view, if the applicant was aware of the possibility of being the father of these children, he was required to resolve that question to ensure that his immigration application contained correct information.

29. Having regard to the applicant’s evidence, the Tribunal has formed the view that at the time the application was made, the was aware of the existence of the children and was aware of at least a possibility that he was the father of the children, even if there was no certainty. The Tribunal is not satisfied that the applicant had taken all steps available to him to ensure the information in his application was correct and even if the children’s mother refused to do the DNA test to prove his paternity, it was open to the applicant to refer to the children in his application, and explain the circumstances, to avoid the provision of incorrect answers. The applicant chose not to do so.

30. The applicant told the Tribunal that they were not familiar with the Australian laws and did not know how to respond to questions on the form. The Tribunal does not accept that evidence because the issue here relates to a very simple question about the existence of children. It is not a legal issue, nor a complex one. The existence of children is not a legal concept. In the Tribunal’s view, the applicant would have a good understanding of what was asked of him. The Tribunal has formed the view that he chose to deliberately withhold information about the possibility of his paternity (even if he could not be certain about the paternity) because he did not want that information to be known to the Department, or to his partner.

    The present circumstances of the visa holder

31. The applicant claims that he had purchased a property in Australia and had sold property in China before migrating. There is an outstanding mortgage. The applicant told the Tribunal that when they decided to migrate to Australia to care for their granddaughter, they sold their property in China and have nothing to go back to. The Tribunal accepts that evidence but is mindful that should the applicant and his partner decide to return to China permanently, they should be able to sell the property to use the funds towards new accommodation in China.

32. The applicant states that his partner had been diagnosed with breast cancer in 2014 and received treatment but the cancer recurred in 2017 and she has been receiving treatment to present. In oral evidence, the applicant expelling the treatment that his wife receives and the support he provides. The applicant states that if they return to China, his wife will not be able to receive appropriate treatment and they would not be able to afford the treatment as they would have no private health insurance. In his submission to the Tribunal of 22 April 2021 the applicant referred to the cost of two medications his wife receives and the amount of pension, stating that they would not be able to meet the cost of medication. The applicant states that due to his age, he would be unable to find a job and he has no place to live, having disposed of everything at the time of his migration to Australia. The Tribunal accepts that considerable hardship would be caused to the applicant and his partner, should they decide to return to China, although the Tribunal is mindful that if the applicant’s partner were to remain in Australia, and if she were to sponsor the applicant for another visa such as a Partner visa, the applicant may not be required to leave Australia and re-establish his life in China.

33. The applicant told the Tribunal that he became involved with Christianity and attends church every Sunday seeking forgiveness. The Tribunal accepts that evidence. The applicant refers to his involvement in the local community and the Tribunal accepts that evidence.

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

34. Nothing adverse is known about the applicant’s behaviour concerning her behaviour.

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

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

    The time that has elapsed since the non-compliance

36. The application for the visa was made in March 2007 and 14 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

37. There are no known breaches of the law.

    Any contribution made by the holder to the community.

38. In his submission and oral evidence to the Tribunal the applicant states that he had actively participated in a number of community organisations and described his activities in oral evidence. The Tribunal accepts the applicant’s evidence. The applicant refers to his baptism and involvement in the church and states that he wants to live a more faithful life. The applicant presented a number of supporting statements from community organisations. The Tribunal accepts that evidence and accepts that the applicant has participated in community activities and may have made a contribution to the community.

39. 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.

40. There are no persons who would be affected by the consequential cancellation.

    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.

41. The primary decision record indicates that only one of the applicant’s children is a minor. His two daughters are in Australia holding Student visas while their mother holds a Guardian (Student) visa although the applicant told the Tribunal that their visas have been cancelled. The applicant’s evidence to the Tribunal is that he has had no involvement in the children’s lives since their birth. In his oral evidence to the Tribunal the applicant confirmed that he has not met his youngest daughter at all and has only had limited contact with his elder daughter. In such circumstances the Tribunal is not satisfied the applicant has played a meaningful paternal role in the children’s lives. The Tribunal does not consider that  the best interests of the minor child would be adversely affected by the cancellation of the applicant’s visa and the applicant does not claim that the best interests of any other children would be adversely 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.

1. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case. The Tribunal does not consider that such obligations would 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.

2. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he may be subject to an exclusion period in relation to some visas. The cancellation of a permanent visa would result in the applicant losing some benefits that he may have been entitled to as a permanent resident of Australia. If the applicant is not a permanent resident of Australia, he is unable to sponsor his children for the Child visas and the applicant’s evidence to the Tribunal is that the children’s applications had been withdrawn.

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

3. The applicant spoke about his desire to be with his son and grandchildren and to take care of them. The applicant refers to his age and his desire to spend the rest of his life with the family in Australia. The Tribunal accepts that the cancellation of the visa, which may lead to the applicant being required to leave Australia, may lead to the separation of the applicant from his family in Australia. However, the Tribunal is also mindful that the applicant may be eligible to seek another visa, such as a Partner visa, in the future and if he chooses to make that application, any separation from his family in Australia may be minimal or avoided altogether.

4. The applicant refers to the length of time he has lived in Australia and treating Australia as his home. The Tribunal accepts that the applicant has been living in Australia for close to 15 years and that he is well settled in Australia. The Tribunal accepts that given their age and the duration of their absence from China, the applicant may find it hard to re-settle in China. The Tribunal also accepts the applicant’s immediate family is in Australia. The Tribunal accepts that considerable hardship would be caused to the applicant and the family by the cancellation of the visa.

5. In the written submission to the Tribunal of 14 April 2021 the applicant states that there are unique and exceptional circumstances in this case, stating that  the definition of spouse in r. 1.15A and cl. 143.213 would have unintended consequences which would lead to an unfair and unreasonable result. The applicant states that neither he nor his partner believed they had other children until the DNA results were obtained. The applicant states that while he had an affair with the children’s mother, his relationship with his wife has always been genuine and exclusive and he and the children’s mother led their separate lives. While he would not have passed the balance of family test if the two daughters were included, he was not aware of the existence of these children until late 2019. The Tribunal finds the applicant’s submission unpersuasive. The legislation clearly defines the term ‘balance of family test’ by reference to the number of children, not by nature of a parent’s relationship with the child. Notably, the balance of family test also provides that if a child’s whereabouts are unknown, the child is taken to reside in a particular country. That is, the legislation makes it clear that even if there is a complete absence of any relationship between a parent and a child, that child must be considered for the purpose of the balance of family test and may disqualify the parent from meeting that  requirement. Thus, even if the applicant had no relationship with the children and was unaware that he was the father of the children, the two daughters were his children and that fact is not in dispute. Therefore, the applicant would not have passed the balance of family test irrespective of his knowledge of paternity. In the Tribunal’s view, that is the clear intention of the legislation. Thus, the Tribunal does not accept the applicant’s claim that there is an unintended consequence or exceptional circumstances in the present case.

6. The applicant submits that he did not comply with s. 105 of the Act because ‘ for a lay person… it is a tall order to notify’. The Tribunal considers that  submission unpersuasive. The requirements of the Act apply irrespective of one’s level of knowledge of the Australian laws, legal training, level of English proficiency or any other such factors. It is incorrect for the applicant to suggest that  because he was a lay person (as presumably many applicants are), he should not have been expected to comply with s. 105 of the Act an inform the Department about his circumstances. He did have this obligation and had failed to comply with it.

7. The applicant states that there is no proper recourse he and his partner can turn to if the visas are cancelled as it is not an option for them to return to their home country. The applicant states that he migrated to Australia in 2007 and has integrated into the Australian community and they would be devastated if required to return to China. The applicant states that his family in China have their own commitments and cannot accept het applicants and the applicant will not have a roof over his head and he would b e condemned to a life of loneliness and misery. the applicant submits that the length of his residence in Australia should mean the discretion should be exercised in his favour. The Tribunal accepts that the applicant and his partner had been living in Australia for a lengthy period and are settled in this country. The Tribunal accepts that they may have to ‘start from scratch’ if they were to return to China, re-establish accommodation and income and family and community connections. The Tribunal  accepts that considerable hardship would be caused to the applicant by the cancellation of the visa and that weighs heavily against the cancellation. The Tribunal places appropriate weight on these factors.

8. The applicant presented to the Tribunal a letter from his son, who states that his parents helped him raise his children and the help and support they provide to each other. There is reference to the applicant’s regret about the circumstances leading to the cancellation and the hardship that the cancellation of the visa would cause. The applicant’s son gave oral evidence to the Tribunal and spoke about his parents’ long term marriage, stating it would be ‘impractical’ for them to separate. He spoke about the support he receives from his parents and the length of their residence in Australia, stating that they are well settled int his country. The Tribunal accepts that evidence.

9. The applicant states that he has become part of the fabric of the Australian economy and community and it would be extremely harsh and manifestly unfair if they were forced to leave Australia. As noted above, the Tribunal accepts that  there are strong considerations that may be against the cancellation of the visa, including the length of time the applicant and his partner had lived in Australia, their settlement in this country, health and financial issues, the presence of the family here and other considerations.

10. The Tribunal has found that  the applicant had completed the application form in a way that incorrect answers were given and that there was a breach of s. 101 and there are grounds for cancelling his visa. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if his visa is cancelled, although such hardship may be minimised if the applicant were to make another visa application in the future. The Tribunal acknowledges that the applicant has spent considerable time in Australia and has settled in Australia and has contributed to the community and acknowledges his evidence that he has nothing to return to. The Tribunal considers there are strong reasons why the visa should not be cancelled.

11. However, the Tribunal has decided to place greater weight upon the circumstances in which the ground for cancellation arose. In this case, the Tribunal has formed the view that the applicant was either aware of the existence of the children or aware of such possibility and yet he chose not to provide that information in his visa application. The existence of these children was central to the applicant’s ability to meet the balance of family test and to the possibility of visa grant. The decision to grant the visa was based on incorrect information and if the correct information was known, the visa is unlikely to have been granted. In the circumstances of this case, and the Tribunal’s consideration of the applicant’s involvement of the fraud, the Tribunal has decided to place greater weight on this factor than other considerations.

12. 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

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

    Kira Raif
    Senior Member