Zhou (Migration)

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.