Zhou (Migration)

[2023] AATA 1163

Zhou (Migration) [2023] AATA 1163 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yiming Zhou

REPRESENTATIVE:  Mr John Chen (MARN 0101286)

CASE NUMBER:  2108741

HOME AFFAIRS REFERENCE(S):          BCC2021/524407

MEMBER:Michael Bradford

DATE:12 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 April 2023 at 12:03pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant gave an incorrect answer in the visa application – applicant had provided a bogus document – identity of her biological father – non-compliances occurred without her knowledge let alone effective consent – effect of splitting the family unit – reasons for not cancelling her visa clearly outweigh the reasons for cancelling it – decision under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 107, 109

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Preliminary aspects  

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 500 (Student) visa under s 109 (1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa for non-compliance with Sec 101(b) and Sec 103 of the Act. The 101(b) ground was based on the provision of incorrect information in her Visa Application and in an accompanying Form 1229 relating to the identity of her biological father, Xin Min Zhou (VA). The 103 ground was based on the provision of two bogus documents which the applicant (Yiming) had submitted to support the VA, namely her Birth Certificate and Chinese ID Card, each of which contained the same incorrect identification details for him.

3. Those grounds, and the materials on which they were based, were relevantly identical to the grounds and information relied upon by the delegate to cancel an associated Student Guardian (TU-590) visa granted to the applicant’s mother, Hongmei Chen, in November 2017.

4. The Subclass TU-590 visa had been granted to Chen to enable Yiming and her sister, Jingjing, to undertake studies in Australia, they having been granted Student (TU-500) visas at or about the same time.  

5. For reasons I will come to later, in March 2021 the delegate declined to cancel Jingjing’s visa. Consequently, only Chen and Yiming sought a review of the decisions to cancel their visas.  

6. After a combined hearing of the two cases the Tribunal, on 9 December 2022, affirmed the delegate’s decision to cancel Chen’s visa (Chen), gave reasons for so doing and indicated (at [11] and [106]) that it would in due course give separate reasons to set aside the decision to cancel Yiming’s visa.

7. What follows are the reasons foreshadowed in Chen.

   Procedural aspects

8. I will assume that the reader is familiar with the reasons in Chen as many of the findings and conclusions in that case provide the background against which the issues in this case are to be determined. 

9. Obviously, the two cases have much in common at the broader factual level. Although no formal direction was made in either case that evidence in one be evidence in the other the delegate dealt with them on that basis and they were presented to the Tribunal for decision on that basis.

10. The delegate issued separate Notices of Intention to Consider Cancellation (NOICC) of the visas and gave separate reasons for cancelling them. He did not proceed in these circumstances, as he might have done, to cancel Yiming’s visa under Sec 140 of the Act.

11. The Tribunal will thus proceed to determine in these reasons the separate issues arising in this review.   

    The combined hearing  

12. As is recorded in Chen, the combined hearing was held in Sydney on the telephone on 21 September 2022. Yiming was represented at the hearing by a Registered Migration Agent, Mr John Chen (no relation). He made some short oral submissions and otherwise assisted the Tribunal on certain factual aspects but did not provide any written submissions.

13. Yiming gave her oral evidence in English without difficulty. She unsurprisingly had a good command of the language. Her evidence was spontaneous and convincing and was given without embellishment or hyperbole. She responded directly to the questions asked and did not make speeches.

14. Although her oral testimony occupied comparatively little in the way of hearing time by the end of it I was satisfied that she had given to me an unvarnished account of what she knew.

15. More particularly, after making allowances for the constraints inherent in a hearing conducted on the telephone, unaided by any visual facility, I am satisfied that what she was telling me was her own evidence, uninfluenced by others, and that what she had given to me was a full and frank account in support of her review case.

16. Bearing in mind that she was only about 17.5 years of age at the time of the hearing she struck me as an articulate and intelligent young woman.

17. I am satisfied that her evidence, both oral and documentary, is credible and reliable.

    Overview of the statutory provisions   

18. The relevant provisions in the legislation were discussed in Chen. As both cases stem from Sec 109 cancellations the same provisions apply to this case and need not be repeated in these reasons.

19. Obviously, if the non-compliances are made out, the relevant factors and the weight to be afforded to them at the discretionary level will vary according to the circumstances of the  case, as viewed at the time of this decision.

    Documentary aspects

20. Yiming’s documentary case is very similar to that in Chen. Apart from her Explain Letter, there are other documents in the form of letters and statements from other witnesses, including Chen and Zhou, the latter document having been given by him in October 2020 in response to a Sec 56 request concerning Child (Sub-class 802) visas then under consideration by the Department. There is also an Explain Letter from Jingjing dated 12 September 2022 which I will come to later.

21. Shortly prior to the hearing the Tribunal obtained from external sources a Movements record and a PRISMS record for Yiming neither of which contains any controversial detail.

    Yiming’s response to the NOICC, the delegate’s findings and my observations on some of them  

22. In response to the NOICC, Yiming stated in her Explain Letter that she was disappointed that false information had been given to the Department concerning the identity of her father. She said that she was innocent of any wrongdoing. She went on to say that she had been studying in Australia at the secondary level for more than 3 years since arriving here with her mother and sister in November 2017. She also refers to her mother’s Explain Letter, the content of which I set out in Chen, but refrains from commenting on it.

23. Reasonably understood, and read in the context of the other evidence, both oral and documentary, Yiming’s Explain Letter is implicitly to the effect that she had nothing to with the preparation of the VA, was not made aware of what was being done to procure her visa at any stage prior to the lodgement of the VA, was for that reason innocent of any wrongdoing, and did not know that false information regarding the identity of her father had been provided in the VA until the  NOICCs were served in March 2021, some 3.5 years later.

24. In Part C of his cancellation reasons, the delegate records that she had not disputed in her Explain Letter that grounds existed under Sec 109 to cancel her visa but had made a submission to the effect that it should not be cancelled because she had done nothing wrong.

25. I agree that her Letter should be read in that way.

26. Although Yiming was only about 12 years of age at the time the VA was lodged in September 2017 and would thus have had no real of effective control over what Chen did in connection with the VA, this cannot have any bearing on the issue of whether grounds for cancellation of Yiming’s visa existed, whatever significance these circumstances may have at the discretionary level. 

27. It was thus open to the delegate to find on the evidence available, including that provided by Chen, that the 101(b) and 103 grounds were made out, and that Sec 109 of the Act was engaged.

28. In Part D of his reasons, after referring to the matters which he was required under the Act to consider, including those set out in the Procedural Instruction Manual (PAM 3), the delegate addressed at some length the issue of whether Yiming’s visa should be cancelled. In so doing, he identified various matters which, he felt, should be given weight in favour of cancelling her visa, including findings that she could not meet the requirements of PIC 4017 and 4020. Again, I will return to these findings later.

29. Reference was also made in Part D of his reasons to the fact that, in January 2020, Yiming and Jingjing had applied onshore for Permanent Child (Subclass 802) visas sponsored by Zhou. Presumably he did this in circumstances not dissimilar to those which existed in connection with the VA but the evidence relating to the Subclass 802 visas is unclear. I am for that reason not prepared to draw in this case any adverse inferences from the circumstances in which the 802 visas were sought and, in any event, the applications for them were withdrawn by Zhou on 15 June 2021, according to his Statement, at or about the time when the delegate cancelled the subject visas.

30. Although the delegate also referred in his decision to the fact that Yiming was a child at the time the VA was lodged, and although he acknowledged that the non-compliances may thus have occurred in circumstances beyond her control, he apparently attributed little weight to these considerations because she had not provided a genuine Birth Certificate in her response to the NOICC.  

31. With all due respect, I cannot see that it was reasonably open to the delegate to approach the issue in that way. Indeed, it does seem to me to have been a rather egregious way to look at it given that Yiming would not have known that the Birth Certificate which had been provided to support the VA was bogus until, on my reading of the evidence, the NOICC was brought to her attention, presumably by Chen, in early March 2021.

32. I remain unconvinced that Yiming knew of this at any earlier point in time although I accept that Jingjing may have been made aware of it at some stage during 2020 when the Sub-class 802 visas were being processed. Certainly, her Statement might be read as suggesting she did.  

33. In her Explain Letter Yiming mentions the possibility of her obtaining a genuine Birth Certificate and says that she would co-operate with the Department to bring this about if given the opportunity. It may be, as the delegate points out, that a bio-medical examination for that purpose would not have assisted her given that a DNA test had already established that Zhou was her biological father. Be that as it may, I am satisfied that she would have done what she could, independently of her parents, to rectify her birth particulars relating to her father had she been given the opportunity. That she is now 18 years of age reinforces the prospects of her doing so in the future.  

34. As I indicated in Chen the delegate correctly rejected Chen’s account of the circumstances in which the non-compliances occurred but the findings in that case that she knew that the information concerning Zhou’s identity was incorrect do not implicate Yiming in any way.

35. Even if there was in this case sufficiently cogent evidence to implicate her, and as far as I can see there is none, serious questions would arise as to whether her knowledge should be given any real weight at the discretionary level in circumstances where she was unlikely to have had the capacity to understand the significance of it and would, in any event, almost certainly have been unable to do anything about it.

36. As he was required to do, the delegate also considered the legal consequences of a cancellation, including the prospect of disrupting her studies in Australia, and whether cancellation of her visa would result in a splitting of the family unit, matters to which he attributed some weight in her favour. Again, I will return to look at them later.

37. Ultimately, the delegate decided to cancel Yiming’s visa because he felt that the reasons to cancel it outweighed the reasons not to cancel it.

38. As will now be seen, I do not agree with that conclusion.

    Evidence and other findings

39. Although Yiming is responsible under the Act for the provision of the false information and bogus documents, so that the asserted grounds for cancellation of her visa under Sec 109 exist, it does not necessarily follow that her visa should be cancelled.

40. In resolving this issue, it is necessary for me to consider the relevant circumstances and other matters which I am bound to consider at the discretionary level.

41. Firstly, I have no hesitation in accepting Yiming’s oral and documentary case regarding her study history and educational goals in Australia.

42. For the past 5 years or so she has been a student at the Calamvale Community College in Brisbane, is currently enrolled in Year 12 at that College, intends to complete her secondary schooling by the end of this year, wants to obtain her Higher School Certificate and go on to undertake tertiary studies in a nursing course at the Queensland University of Technology, where Jingjing is currently studying a Medical Imaging course.

43. Nor is there anything to suggest that she has some other plan to enable her to remain here for other than legitimate and temporary academic reasons. I am satisfied that the early educational signs are good, that she is a genuine and capable student who is likely to achieve her career related goals when she returns to China after completion of her tertiary studies, if given the opportunity.

44. It is an objective fact that Yiming was 12 years and 8 months of age at the time the VA was filed, having been born in China on 10 February 2005. Prior to coming out to Australia in November 2017 she lived in that country with her mother and sister. Zhou has never lived with them, either in China or in Australia, and by all accounts he has had never played an active and ongoing role in their lives.

45. Although rather anecdotal, the evidence suggests that Zhou has been at all relevant times, and still is, married to another Chinese woman, has fathered another child with her in China and that they have permanently lived in Australia for some years, perhaps from about 2007.

46. The evidence is broadly to the effect that it would not have been easy for Chen, or her children, to have lived in China in those circumstances for as long as they did. I accept this evidence.

47. I can readily understand, without for a moment condoning let alone excusing, why Chen made the decisions she made. Clearly, she wanted her children to have opportunities which she did not, more particularly a better education and, ultimately, the chance of a better life. This no doubt explains much of what took place in connection with the VA and why she went to the lengths she did to procure the visas.

48. I do think these circumstances have a bearing on the merits of Yiming’s case at the discretionary level and, indeed, that they can and should be given some weight against cancellation of her visa.

49. Yiming’s documentary case is to the effect that returning to the education system in China at this stage would not be an easy thing for her to do. Jingjing has also given evidence along these lines. As Yiming has now been studying in Australia at the secondary level for more than 5 years, and given that she is currently in Year 12, I accept that having to return to China at this stage of her academic journey here would be unfortunate timing and would, indeed, involve considerable hardship.

50. This too is a factor which attracts some weight in her favour.  

51. I am also satisfied, if I need to be, that Yiming would likely have taken no interest in sophisticated matters such as the correctness or otherwise of information concerning her father’s identity in a migration context, or more particularly in documents provided to support the VA in September 2017. These are not matters which I would ordinarily expect a young Chinese girl of less than 13 years of age to have any interest in, let alone question.

52. Moreover, as a matter of pure logic, Chen is unlikely to have informed Yiming as to what had been done to procure the visas until such time as she had no real choice. There does not seem on the evidence to have been any plausible reason why she would have done so at any stage before the NOICCs arrived.  

53. I thus accept the evidence in Yiming’s Explain Letter to the effect that she had nothing to do with the provision of, or had any prior knowledge of, the misleading information and documents in the VA concerning her father’s identity.

54. I am thus satisfied that the non-compliances in this case occurred without her knowledge let alone effective consent and that this factor is to be given significant weight in her favour at the discretionary level.

55. Whilst it is true that her Letter refers to her mother’s explanation the fact that she does not distance herself from it is understandable in these circumstances. I do not think it should have any bearing on her case.

56. As noted earlier, the delegate declined to cancel Jingjing’s visa. There is a Notice to this effect dated 15 March 2021 which refers to an NOICC served on her about 12 days earlier.   A copy of this Notice was provided to the Tribunal not long before the hearing as an attachment to the Hearing Response form filed on or about 7 September 2022.

57. In the Notice the delegate simply states that, although there was non-compliance by Jingjing as described in the NOICC, he had decided not to cancel her visa because the reasons not to do so outweighed the non-compliance but, having said that, he did not state what those reasons were.

58. Leaving aside the question of whether he was entitled to approach this aspect in that way, and on this I do have doubts, it does seem to me that the delegate’s decisions in this case do involve some disparate treatment as between Chen’s children. In Chen I indicated (at [97]) that Chen could not complain of disparate treatment to her if her visa was cancelled and those granted to her children were not but, as between the children, the position is I think very different.

59. Chen has complained about the disparate treatment of her children, and in my view with some justification, in her Statement of 8 September 2022.

60. I cannot see, at least on the evidence led, and it does not include a copy of the NOICC served on Jingjing, any basis for treating Yiming differently to her given that the grounds for the cancellation of their visas and their other circumstances were apparently very similar, if not identical.

61. Jingjing, who is the elder of the two children having been born on 15 September 2002, accepts in her Statement that she questioned her mother about the description of her father in her Birth Certificate and was told not to worry about it. Whilst I accepted in Chen that this event took place, the timing of it is most unclear and there is, in any event, no evidence that it took place in the presence of Yiming.

62. This disparate treatment as between her and Jingjing seems to me to be a relevant and indeed weighty consideration in her case which I can and should take into account at the discretionary level.

63. The delegate attributed significant weight to the fact that Yiming did not meet Regulation 500.217 because she could not satisfy PIC 4017 or PIC 4020. Again, I cannot agree with either of these findings.

64. As to PIC 4017, the delegate found that Zhou had not given an effective consent to the grant of the visa to Yiming. There are various answers to this proposition.

65. Firstly, the Minister does not seem to have required Zhou to provide consent in circumstances where Yiming had not then turned 18 years of age and was thus deemed to have satisfied this requirement by virtue of clause 500.217(2).

1. Secondly, Chen was in the process of seeking a Student Guardian visa herself and had provided in support of the VA a Form 1229, this being one of the supporting, and presumably required, documents listed in the VA.

2. Thirdly, for the delegate to find that Zhou had not consented because he was mis-described in the VA is, in my view, a victory for form over substance. Certainly, there is nothing in his Statement on which to suggest that he had not in fact implicitly, if not explicitly, consented to the visa grants in favour of his children in 2017, or had done so subsequently. Had he not consented I would have expected him to have given evidence to that effect in his Statement, and there is none.

3. As to PIC 4020, the Tribunal has already found that Yiming did not herself provide the false and misleading information concerning the identity of her father in the VA. PIC 4020(1) is satisfied.

4. As in Chen, apart from the other mandatory factors, a primary consideration is whether the decisions in Chen and in this case would have the effect of splitting the family unit and, if so, whether that factor should be given preponderant weight in the overall circumstances of this case.

5. For the same reasons given in Chen (at [90]-[92]), my view is that the decision in this case will not have that effect.

6. Further, the Departmental policy which underpins the need to preserve the family unit should not be rigorously applied if to do so would lead to an unjust result in a particular case. A decision to cancel Yiming’s visa would in these circumstances lead to unjust consequences for her. 

7. As to the other factors, there are no other instances of non-compliance and no suggestion that Yiming has committed any other breaches of the law. I accept the evidence in her Explain Letter to this effect and am satisfied that she will continue to co-operate with the Department moving forward. Again, I give these matters a little weight in her favour.

8. Lastly, to reiterate, I accept her case that to cancel her visa would in these circumstances occasion considerable hardship given her current and reasonably foreseeable circumstances. It is, in my view, important to recognise that Yiming has been making sound progress at the secondary level for the past 5 years and this despite the ongoing uncertainties arising from her migration status since June 2021 and those inherent in the review process. It would not have been an easy road to hoe and, in my view, she has demonstrated some grit in doing so. I give these matters some weight in her favour.

9. There do not appear to be any other relevant matters about which evidence has been led or which otherwise require specific consideration.

   Summary and conclusion

10. Although the delegate was entitled to find the relevant non-compliances, after considering Yiming’s overall circumstances and having carried out the balancing exercise which the Act calls for, I have concluded that the reasons for not cancelling her visa clearly outweigh the reasons for cancelling it.

11. Indeed, leaving aside the non-compliances, and given the factual findings I have made at the discretionary level, this really is an overwhelming case for the setting aside of the decision to cancel her visa.

    DECISION     

12. The Tribunal thus sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Michael Bradford
    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.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    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.