Zhou (Migration) - [2023] AATA 2205

Zhou (Migration) [2023] AATA 2205 (28 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:Mr Chunlong Zhou
REPRESENTATIVE: Mr Xianyi Tan
CASE NUMBER: 2306412

HOME AFFAIRS REFERENCE(S): BCC2021/1963520
MEMBER:Rachel Westaway
DATE:28 June 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 28 June 2023 at 11:00pm
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information in a previous visa application – undeclared previous marriage and child – applicant remained married at the time of his current marriage – mental health issues – financial hardship – best interest of the Australian children – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, Schedule 2, cls 801.211, 820.211; rr 2.14, 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant had breached s 101(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 28 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Wing Yan Huong, the review applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zhou (Migration)

Details

AGLC: Zhou (Migration) [2023] AATA 2205
Case: [2023] AATA 2205
Decision Date: 28 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by Chunlong Zhou, a citizen of China, against the cancellation of his Partner (Permanent) (subclass 801) visa. Mr Zhou had applied for the visa in March 2021, declaring he was married to Yingyan Huang on 23 February 2019 and had no previous relationships. He provided an Australian Marriage Certificate stating he had "never validly married". The visa was granted on 21 June 2021. Subsequently, investigations revealed Mr Zhou had a previous marriage to Wenyan Lin and an undeclared child, Yunting Zhou, from that marriage. The delegate found that the visa had been granted based on incorrect information.

The primary legal issue before the Tribunal was whether the delegate had correctly exercised the power to cancel Mr Zhou's visa under section 109 of the *Migration Act 1958* (Cth). This required determining if the visa had been granted wholly or partly on incorrect information or a bogus document, and considering the circumstances of the non-compliance and the visa holder's present circumstances. The Tribunal was required to assess whether the notice of intention to cancel the visa complied with section 107 of the Act, which it found to be satisfied.

The Tribunal reasoned that Mr Zhou's failure to declare his previous marriage and child constituted a failure to provide correct information, as required by the Act. While the visa might have been assessed on de facto grounds, the fact that he was granted a visa as a spouse based on his marriage to Ms Huang, when he was still legally married to Ms Lin, was a significant factor. The Tribunal gave considerable weight to the fact that Mr Zhou knowingly chose not to disclose his previous marriage and child, and that this non-compliance occurred in the context of his visa application. However, the Tribunal also considered Mr Zhou's present circumstances, including his residence in Australia since 2014, his employment, his Australian citizen children with his current wife, and his desire for his children to remain in Australia for their education.

Ultimately, the Tribunal concluded that while the non-compliance was significant, the decision to cancel the visa should be set aside. The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. Despite the incorrect information provided, the Tribunal determined that the decision to cancel the visa should be set aside.

Orders

Orders of the court

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Background

Background to the litigation

In the present matter, the Tribunal is satisfied that the delegate has reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.Background The Applicant, Chunlong Zhou, is a citizen of China and is currently 34 years old. On 29 March 2021, Mr Zhou lodged an electronic Combined Partner (subclass 820/subclass 801) visa application, which listed his spouse and sponsor as Yingyan Huang (18 June 1988). The applicant submitted that he was married to Yingyan Huang on 23 February 2019 in Mill Park, Victoria. The applicant further stated that he had no previous relationships with persons other than the sponsor. In support of his visa application, the applicant supplied an Australian Marriage Certificate, registration [number] with the issue date of 2 October 2020. This certificate stated that the applicant’s conjugal status prior to marrying Yingyan Huang as “never validly married’. Based on the information supplied in the Combined Partner (subclass 820/subclass 801) visa application, the applicant was granted the Partner (Temporary) (subclass 820) visa and the Partner (Permanent) (subclass 801) visa on 21 June 2021. On 24 July 2021, the applicant’s mother, Shuying Ni (7 May 1963) lodged a Combined Partner (subclass 309/subclass 100) visa application, listing the applicant’s Australian permanent resident father, Kaixing Zhou (7 August 1960) as her sponsor. In this application she listed Yunting Zhou (15 July 2014) as her grandchild. On 12 October 2021 an officer of the Department contacted Shuying Ni, who stated Yunting Zhou was the applicant’s daughter. The delegate found that Yunting Zhou was considered to be a dependant of the applicant’s family unit and therefore could not be considered as a non-migrating dependant applicant on Shuying Ni’s Combined Partner (subclass 309/subclass 100) visa application. Further investigation by the Department found that the applicant had not declared his child Yunting Zhou from his previous marriage, nor had he declared his previous marriage to Wenyan Lin (26 June 1994), who is the child’s mother on his Combined Partner (subclass 820/subclass 801) visa application. On 27 October 2022, the Australia Consulate General in Shanghai undertook integrity checks on the information provided in the visa holder’s Combined Partner (subclass 820/subclass 801) visa application, specifically in relation to his possible previous relationships, other than the visa holder’s sponsor, Yingyan Huang. The delegate provided the Consulate with a copy of the applicant’s Marriage Book, which was attached to a previously refused Visitor (Sponsored Family Stream) (subclass 600) visa application lodged on 24 October 2014. On 27 October 2022, the Fuqing Civil Affairs Bureau Marriage Registration Centre verified that the Marriage Book he provided the Department was genuine. Further, according to their systems, there is no record that the visa holder, nor Wenyan Lin, had filed for divorce through the Civil Affairs Bureau.Notice of Intention to Consider Cancellation

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. In the present matter, the Tribunal is satisfied that the delegate has reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.Background The Applicant, Chunlong Zhou, is a citizen of China and is currently 34 years old. On 29 March 2021, Mr Zhou lodged an electronic Combined Partner (subclass 820/subclass 801) visa application, which listed his spouse and sponsor as Yingyan Huang (18 June 1988). The applicant submitted that he was married to Yingyan Huang on 23 February 2019 in Mill Park, Victoria. The applicant further stated that he had no previous relationships with persons other than the sponsor. In support of his visa application, the applicant supplied an Australian Marriage Certificate, registration [number] with the issue date of 2 October 2020. This certificate stated that the applicant’s conjugal status prior to marrying Yingyan Huang as “never validly married’. Based on the information supplied in the Combined Partner (subclass 820/subclass 801) visa application, the applicant was granted the Partner (Temporary) (subclass 820) visa and the Partner (Permanent) (subclass 801) visa on 21 June 2021. On 24 July 2021, the applicant’s mother, Shuying Ni (7 May 1963) lodged a Combined Partner (subclass 309/subclass 100) visa application, listing the applicant’s Australian permanent resident father, Kaixing Zhou (7 August 1960) as her sponsor. In this application she listed Yunting Zhou (15 July 2014) as her grandchild. On 12 October 2021 an officer of the Department contacted Shuying Ni, who stated Yunting Zhou was the applicant’s daughter. The delegate found that Yunting Zhou was considered to be a dependant of the applicant’s family unit and therefore could not be considered as a non-migrating dependant applicant on Shuying Ni’s Combined Partner (subclass 309/subclass 100) visa application. Further investigation by the Department found that the applicant had not declared his child Yunting Zhou from his previous marriage, nor had he declared his previous marriage to Wenyan Lin (26 June 1994), who is the child’s mother on his Combined Partner (subclass 820/subclass 801) visa application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 It is a requirement for the grant of the visa that the applicant and spouse are legally married or in a de facto relationship and that they have a mutually committed genuine relationship to the exclusion of all others. The applicant was still legally married and had a child of the relationship which was not declared. This does not in itself determine the review applicant may not have been granted the Partner visa as it may have been assessed on de-facto grounds. The applicant provided the Tribunal with details of his first marriage. He stated that he met his first wife in 2013 and they separated in early 2014 however she learnt that she was pregnant and they decided to seek a termination of the pregnancy. He stated that at the time doctors advised against this for the mother’s health. They decided to continue with the pregnancy and for the sake of obtaining legal hukou registration for the child, the applicant stated that they were married on 26 June 2014 and the child was born on 15 July 2014 and the mother left the child with the applicant and his mother after three months and has had no contact. The delegate may have accepted that the review applicant was separated and had a mutually exclusive relationship with the sponsor however the fact that he was assessed as the spouse of the sponsor based on their marriage would have been a considerable factor in the decision maker’s assessment of the visa application. Therefore, the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly non the incorrect information and gives this considerable weight in favour of cancelling the visa.·the circumstances in which the non-compliance occurred The circumstances in which the non-compliance occurred are when the applicant failed to declare previous relationships and the fact that he was still married to his first wife and had a child to that relationship. The applicant claimed that he did not want to tell the sponsor this as she and their mutual friends who introduced them were not aware he was married but separated and he did not want to jeopardise the relationship.In the present case the applicant knowingly chose not to disclose his previous relationship, marriage and child to that relationship. The Tribunal gives this aspect weight in favour of cancelling the visa.·the present circumstances of the visa holder The applicant has lived in Australia since 2014 and has purchased a house with his wife. He is employed as a plasterer. He has stated that his father and sister reside in Australia and he has two children with his wife who are Australian citizens. He claims he has minimal contact with his daughter and mother who reside in China and his family and his wife’s immediate family are in Australia. He claims that the education system is different in China and he wants his children to remain in Australia for their education and cancelling the visa would significantly affect them.