Zhou (Migration)

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 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.
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
The Department issued the applicant with a Notice of Intention to Consider Cancellation (the Notice) on 28 November 2022.
On 10 December 2022 the applicant’s representative submitted the following supporting documents to the Department:
·Response to Notice of Intention to Consider Cancellation Letter, written by visa holder – Dated: 10 December 2022
·Form 956 signed by the visa holder and migration agent – Dated: 10 December 2022
·Birth Certificate for visa holder’s child, Eric Zichen ZHOU (23 October 2020) – Dated 10 December 2020
·Certificate of Divorce for Lin Weyan and the visa holder (Official date of divorce: 29 August 2020) with translation – Dated: 29 November 2022
·Maternity booking documentation for visa holder’s spouse Yingyan HUANG for expected child (Expected delivery date: 01 March 2023) – Dated: Unknown
·PDF featuring 27 photos of the visa holder and his family – Dated: Unknown
·PDF featuring 9 photos of the visa holder and his family – Dated: Unknown
·Medical documentation and ultrasound scans of expected child between visa holder and Yingyan HUANG – Dated: 26 August 2022 & 14 October 2022
·Copies of water, council rates, electricity, gas and broadband bills featuring name of visa holder and Yingyan HUANG - Dated: 2022
Decision About Non-Compliance (s 108)
The delegate found that the applicant’s response to the Notice did not address the grounds for cancellation. However, the applicant did supply a translated copy of a divorce certificate between him and his first spouse, Wenyan Lin. The certificate showed that the applicant was officially divorced on 29 August 2020, showing that the applicant was already married at the time of his marriage to his current spouse, Yingyan Huang. The delegate referred the divorce certificate for an integrity check with the Department’s Shanghai post. On 17 April 2023 a delegate contacted the issuing authority of the certificate, the Fuqing Notary Public Office, and verified with an officer that the document was genuine.
Given the above information the delegate considered that the non-compliance with regards to the applicant’s incorrect answer in relation to his Combined Partner (subclass 820/subclass 801) visa application, continued to exist.
Decision Whether to Cancel (s 109)
In response to the Notice the applicant supplied the Department with the following reasons why his visa should not be cancelled:
·The visa holder submits he and his current Australian Citizen wife are in a committed relationship which is genuine and continuing.
·He works full time and financially contributes, significantly to his household. He and his wife also purchased their home in early 2022 and are making regular mortgage repayments.
·He states that Australia is his home and he believes that he has strong ties to Australia.
·He has lived in Australia since 2014, has established a family here as well as his mother and father and his sister all reside in Australia as either Australian citizens or permanent residents.
·He has a two-year-old Australian citizen son, and his wife and he are expecting a newborn girl due 01 March 2023 (at time of response). He provides daily care to his son and he submits that if his visa is cancelled, his son would cause significantly effect and harm his child’s future care, welfare and development.
·The cancellation of his visa would not be in the best interest of his children and should be considered under Australia’s obligation under the Convention of the Right of the Child.
·His wife and child have no right to live in China on a permanent basis as they are Australian citizens, and if his visa is cancelled he will be forced to separate from his family and return to China. This would cause psychological stress and emotional hardship to his family.
·If his visa is cancelled, his wife would face extreme difficulties and hardships as she would have to raise their children and still meet their financial obligations including mortgage repayments.
The Department’s Decision
The delegate made a decision to cancel the applicant’s visa under section 109 of the Act on 8 May 2023. This was on the basis that the delegate found that the applicant had not complied with s 101(b) of the Act by providing incorrect information. The delegate assessed the applicant’s response against Migration Regulation 2.14, these are as follows:
a. the correct information
The delegate found that if the applicant had given the correct information, the visa delegate would have been made aware that the applicant was already married at the time of his marriage to his current spouse, Yingyan Huang. At that point the visa delegate would have assessed whether the applicant met the definition of a ‘spouse’ of Yingyan Huang under section 5F of the Act, including the validity of their marriage.
The decision to grant the applicant a Partner (Temporary) (subclass 820) and Partner (Permanent) (subclass 801) visas on 21 June 2021 was based significantly on the delegate’s assessment that applicant meet the definition of a “spouse” of Yingyan Huang at the time the Combined Partner (subclass 820/subclass 801) visa application was lodged on 29 March 2021.
b. the content of the genuine document
The delegate did not consider this relevant to the decision.
c. 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
The delegate considers that if the correct information had been given at the time of assessment for the Combined Partner (subclass 820/subclass 801) visa application this may have affected their assessment of whether the applicant met the legislative criteria for the grant of the visas. Specifically, the applicant’s the Combined Partner (subclass 820/subclass 801) visas were granted because he was assessed as meeting, among other criteria, subclause 820.211(2)(a)(i) and 801.211(2)(c) of the Regulations. The delegate also considers that the applicant obtained a significant migration advantage through the provision of an incorrect answer, and that he may be holding a visa to which he is not entitled to.
d. the circumstances in which the non-compliance occurred
The delegate found that there was no information that indicated any extenuating circumstances that led to the non-compliance. The delegate gave this significant weight towards cancelling the visa.
e. the present circumstances of the visa holder
In the applicant’s response to the Notice, he stated that he is in a genuine, continuing and committed relationship with his current wife Yingyan Huang and are now raising two young children together. He provides daily care and support to his family and submits that if his visa is cancelled, his children’s future care, welfare and development would heavily impact by his absence and they would experience significant psychological and emotional hardship. The delegate found that some degree of psychological and emotional hardship would be experienced by the applicant and his family. The delegate also considered that the cancellation of the applicant’s visa may change the applicant’s financial situation led to financial hardship for his family. The delegate gave this some weight against cancelling the visa.
f. the subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Migration Act 1958
The delegate acknowledged that the applicant engaged with the Department and responded to the Notice in a timely manner. However, the applicant did not acknowledge or address non-compliance with s 101(b) of the Act. According to departmental records there is no evidence that the applicant notified the Department prior or after the grant of his visa, of the incorrect information supplied in his combined visa application.
g. any other instances of non-compliance by the visa holder known to the minister
The delegate found no information that indicated any other instances of non-compliance by the applicant.
h. the time that has elapsed since the non-compliance
The delegate found that a short period of time of two years, had elapsed since the non-compliance with s 101(b) occurred on 29 March 2021. The applicant stated that Australia has been his home since he arrived onshore on 12 December 2014 and that his immediate family are Australian citizens or permanent residents; his parents, sister, and his wife’s family. The delegate gave the applicant’s time spent onshore some weight against cancelling the applicant’s visa.
j. any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the delegate that there have been any breaches of the law by the applicant since the non-compliance occurred.
k. any contribution made by the visa holder to the community
There is no information before the delegate that indicates that the applicant has contributed to the community while in Australia.
The delegate also considered if Australia would be in breach of its international obligations if the visa was cancelled. This includes the obligations in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol); the International Covenant on Civil and Political Rights (ICCPR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the Convention on the Rights of the Child (CRC).
[There] is no information before the delegate to indicate applicant’s civil and political rights will be affected if the visa was cancelled. The delegate also found that cancelling the visa would not be in breach of Australia’s international obligations, under the Refugee Convention, or in breach of Australia obligations under the CAT or the ICCPR.
In considering the best interests of the applicant’s children the delegate found that their immigration of status would not be affected by a decision to cancel the applicant’s visa. Further to this the applicant lodged an application for a Child (subclass 101) visa on 2 November 2022, to sponsor his son, Yunting Zhou (15 July 2014) for a permanent visa to Australia. The delegate considered, as the child has never been onshore or held a valid visa, an appropriate guardian is caring for him. The delegate further considered that a decision to cancel the applicant’s visa would not likely result in him being separated from his children in Australia, as a decision to cancel the visa is separate to a decision to detain or remove the visa holder from Australia. While the delegate acknowledges that a decision to cancel the applicant’s visa may affect the best interests of the children in some way, the circumstances of this case would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of a child in Australia.
There is no further information to indicate that any other of Australia’s international obligations may be impacted by the cancellation of the applicant’s visa.
In view of the findings and discussions in the decision record, the delegate decided to cancel the applicant’s visa.
The Tribunal Application
The applicant applied for review of the Department’s decision on 9 May 2023. The applicant supplied a copy of the Department’s decision record and notification letter with their review.
Invitation to provide information under s. 359(2) of the Act.
On 13 June 2023, the Tribunal wrote to the applicant via their authorised representative under s 359(2) of the Act inviting him to provide information in writing regarding the non-compliance and the prescribed circumstances as set out in Migration Regulation 2.41.
On 27 June 2023 the applicant’s authorised representative responded to the invitation to provide information, they provided the following:
·A statement from the applicant addressing the information put to him in the 359(2) invitation letter.
·An Australian birth certificate for the applicant’s son dated 7 December 2020.
·Various photos of the applicant with his child.
·A fundraising vegetarian dinner invitation in Mandarin.
·Home loan statement letter in applicant’s name dated 12 May 2023.
·Photos of the applicant appearing to perform housework tasks.
·Australian birth certificate for the applicant’s daughter dated 27 April 2023.
·Mental Health Care plan and further letter from Dr Xia Zhang addressing the sponsors depression and anxiety dated 5 June 2023.
·Letter from Psychologist Jessica Chui detailing the problems and issues with the mental health of the sponsor dated 23 June 2023.
The Tribunal hearing
The applicant confirmed that the incorrect evidence was provided to the Department and stated that he had separated from his first wife three months before he came to Australia and had a children from this relationship. He explained that he was introduced to his wife at a party in Australia through mutual friends and that they were not aware of his previous relationship and as such he did not tell his wife who only found out the correct information when the Department contacted him. He explained he was attempting to hide this information from his wife and therefore he did not put this information in the application.
The applicant explained he has two children to his current wife, one who is three years of age, a boy and a daughter who is 4 months.
He explained that his wife is the primary care giver and he works. He stated he works as a plasterer and had previously worked in an automobile factory selling parts in China..

They speak Mandarin at home and both the review applicant and his wife were born in China however his wife came when she was a teenager in 2006 or 2007. Her father was on a working visa and she followed her father. Her parents are both in Australia and she is an only child.
They have not travelled to China together however his wife travelled there in 2019 or 2018 when they had commenced their relationship.
She has a cousin and maternal aunt and uncle in China whom she speaks to via video.
If the visa was cancelled he stated that his wife would not be able to raise the children by herself and they could not stay in China long term.
Further he stated that her parents are in their 60s and rely on their only child, the review applicant’s wife to support them as they do not speak English and her father has diabetes.
He stated that the Chinese education system is different and he does not want his children to miss an Australian education. They are Australian citizens and he stated they deserve to remain here.
The applicant confirmed he has a house and mortgage in Australia and this has caused his wife great concern as she does not know how this can be afforded if she remained in Australia and her husband returned to China.
His wife use to work but since they have young children she has stopped.
He confirmed there has been no breaches to his visa conditions or issues with the law.
He was unable to provide details of connections to the community other than friends and family however he stated that he assisted in rebuilding the Buddhist temple which burnt down and he gave donations and they ate vegetarian food in the temple.
The applicant explained that he has family members in Australia including his older sister and his parents. He sees sister 10 times a year. He sees his father once a week. He is in his 60s. He stated that his mother is still married to his father but she returned to China and cares for the daughter from his first marriage. He said that he speaks to his mother every 2-3 weeks or once a month.
He stated that his wife is very distressed and she is under a lot of pressure and worried about the mortgage repayments and she has parents to look after and cannot go with him if his visa was cancelled and he had to return to China.
He stated that his wife takes her father to the hospital as they don’t speak English and pays all their bills and obtains her father’s medication for his diabetes.
The applicant’s representative stated that the father-in-law came on a skilled visa but did not require a language test and as such his English is very limited.
Ms Huang provided a witness statement to the hearing and stated she understood why the visa was cancelled.
She confirmed she was not aware of his first marriage and child until the Department contacted them.
She was asked why she can’t return to China with the children and she stated she was under 18 when she arrived in Australia and she is now 35 and she has assimilated and her father has a full-time job and her parents are here and her husband and two children and Australia is home. She sees her parents once a week.
She exmapliedn that her husband and her share care of the children and attend to their daily needs and feed them and read to them and they believe their family should remain as one unit and she hopes the visa won’t be cancelled and her husband is an important source of income for the family.
The representative provided a submission and asked the Tribunal to consider the medical evidence discussing the wife of the review applicant and how a cancellation will affect her ability to care for her children. He stated the practicalities of moving to China will make it hard for the applicant, his wife and children and it would be devasting to separate them.
He also stated that the applicant was granted the subclass 801 over two years ago and they have assimilated into the community and are a close family unit and that one mistake which they acknowledge deserves a second chance.
He asked the Tribunal to consider the rights of the children and stated that even in Australia family law dictates that the interests of the children is paramount.
The hearing concluded.
Was there non-compliance as described in the s 107 notice?
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(b) in relation to his Combined Partner (subclass 820/subclass 801) visa in the following respects:
·The applicant did not provide the Department with the correct information in relation to his Combined Partner (subclass 820/subclass 801) visa application.
·On page 21 of the form ‘Application for migration to Australia by a partner’, in response to the question ‘Has the applicant been in any previous relationships with persons other than the sponsor?’, the applicant answered ‘No’.
·According to integrity checks conducted by the Australian Consulate General in Shanghai it was revealed that the applicant was married to Wenyan Lin and that it was recorded that he, nor Wenyan Lin, had filed for divorce through the Civil Affairs Bureau.
·According to the Department it appears that the visa holder has not complied with s101(b) of the Act by providing incorrect information.
At hearing the applicant confirmed that he had provided the incorrect information in relation to his Combined Partner (subclass 820/subclass 801) visa application and as such this issue is not in dispute.
The Tribunal finds that there was non-compliance with s. 101 by the applicant in the manner described in s.107 notice.
Should the visa be cancelled?
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).
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 reg 2.41 of the Regulations. Briefly, they are:
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.
·the correct information
the applicant has confirmed that he was still married to his former wife and had a child to his former wife at the time the visa application was made. Whilst the applicant stated at hearing that he was separated from his former wife for three months. Notwithstanding this, the correct information was that the applicant had a previous relationship and he stated he did not. The correct information should have been yes he had a previous relationship. If the review applicant had provided the correct information the Department may well have considered that he was still married and considered the validity of the new marriage to his sponsor and may have determined the outcome of the application differently.
The Tribunal is satisfied that the review applicant provided the incorrect answer knowingly in his visa application and that with the correct information the visa may not have been granted. The Tribunal therefore gives this significant weight in cancelling the visa.
·the content of the genuine document (if any)
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.
At hearing the applicant’s wife stated that she is the only child to her parents who live in Australia and whom she supports weekly. She has stated that she acts as an interpreter for them and pays their bills and assists with medical support for her father as he has diabetes.
The applicant ahs stated that the cancellation of the visa would not be in the best interests of his children and would contravene Australia’s obligations under the Convention of the Right of the Child and has stated that under Australian family law the children’s best interests are paramount. The applicant has provided a copy of the birth certificates of his two children.
The applicant has provided a copy of the medical records of his wife to the Tribunal that diagnose depression and anxiety. He has stated that this would be exacerbated if they were separated or if they had to relocate to China.
The applicant has also provided a letter of support from Jessica Chui a psychologist from Bayside Counselling stating that the visa cancellation would have long term consequences to the mental health of the review applicant’s wife.
The Tribunal gives these considerations significant weight against cancelling the visa.
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
I acknowledge that the visa holder has engaged with the Department and the Tribunal in a timely manner and has answered the Tribunal honestly regarding the incorrect information. However, the applicant did not try to rectify the situation until the Department contacted him. The Tribunal gives this some weight in cancelling the visa.
·any other instances of non-compliance by the visa holder known to the Minister
There is no information before the Tribunal to indicate any other instances of non-compliance by the visa holder. The Tribunal gives this consideration some weight against cancelling the visa.
·the time that has elapsed since the non-compliance
The applicant lodged his visa application on 29 March 2021 and provided incorrect information. The period in which this has occurred is relatively short. The Tribunal gives this some weight towards cancelling the visa.
·any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before the Tribunal which indicates that there has been any breaches of the law since the non-compliance by the visa holder.
The Tribunal gives this consideration a little weight towards not cancelling the visa.
·any contribution made by the holder to the community.
The applicant has provided a copy of an ad for the rebuilding of his local Buddhist temple and stated that he donated to the rebuilding of this.
He stated that he works long hours to cover their mortgage repayments and has provided details of the mortgage which equate to approximately $1 million. He stated he is a plasterer.
The Tribunal gives this consideration a little weight in favour of not cancelling the visa.
·whether there would be consequential cancellations under s 140.
This is not relevant to the review applicant and as such the Tribunal gives this factor no weight.
· 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. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
Convention on the Rights of the Child (CROC)
As a signatory to the CROC, Australia has an obligation concerning children in Australia. The CROC applies to children under 18 years of age. By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the child.
The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. The applicant has one child, Sebastian Chou. In submissions and supporting documents, it was argued that that Australia would be in breach of its international obligations relating to Sebastian whose interest is a primary consideration. The question for the Tribunal is what decision is in the best interest of the child, not what the child might do if the parents were required to cease living in Australia.

100. The applicant has provided two birth certificates for his Australian citizen children to which he is the birth father.
101. The Tribunal accepts that the review applicant’s father lives in Australia – the grandfather to the two children and his wife’s parents live in Australia. The review applicant and his wife have stated that they are in weekly contact with the grandparents. Should the children need to relocate to be with their father they would not have the benefit of regular contact with their grandparents. Further, the applicant has spoken about the school for international students which the children would need to enrol in should they return to China. He has stated that there is access to better education, healthcare and economic opportunities in Australia and that this is in line with his wife’s own education which was for high school in Australia. The applicant supplied medical reports which state the children’s mother suffers from anxiety and depression and a change to her circumstances will exacerbate this and lead to a decreased capacity in her ability to care for the children. As the primary care giver to the children the Tribunal has considered this.
102. On the evidence, the Tribunal is satisfied that Australia would be in breach of its international obligations under the CROC in case of the cancellation.
103. The Tribunal gives this aspect significant weight in favour of the applicant and not cancelling the visa.
· 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.
104. If the visa was cancelled the review applicant would become an unlawful no-citizen and be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart. The applicant would also be subject to s 48 of the Act.
105. These are intended legislative consequence however the Tribunal has considered the review applicant’s circumstances, namely his two children in Australia and his wife’s mental health which would present a degree of hardship. The Tribunal gives this factor a little weight against cancelling the visa.
106. Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
107. There are no other relevant factors which have not already been considered.
108. The Tribunal has carefully considered the material before it individually and cumulatively. The Tribunal is satisfied that on balance, the matters in favour of the applicant outweigh the other aspects in favour of cancellation.

109. 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 not be cancelled.
DECISION
110. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Rachel Westaway
Senior 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.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

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.

[2023] AATA 2205

28 June 2023

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