Zhu (Migration)

Zhu (Migration) [2020] AATA 1385 (8 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anpeng Zhu
CASE NUMBER:  1933179
DIBP REFERENCE(S):  BCC2016/1172903 BCC2018/1996627
MEMBER:Antonio Dronjic
DATE:8 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.

Statement made on 08 April 2020 at 10:56am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – change of circumstances – separation and divorce – no longer member of the family unit of primary applicant – date and circumstances of separation – living separately for employment-related reasons, but continuing the relationship – credibility – inconsistent evidence – final separation two months before visa application – no change of circumstances, but possible incorrect information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(d)(ii), 101, 104, 107, 108(b), 109(1), 359AA, 375A
Migration Regulations 1994 (Cth), rr 1.12, 2.41, Schedule 2, 187.311
Family Law Act 1975 (Cth), s 48(2)

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 Immigration to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The applicant was granted a Subclass 187 visa on 2 March 2015 as a member of Ms Huijin Wang’s family unit. She was the primary visa applicant. The delegate cancelled the visa on the basis that the applicant breached s.104 of the Act as he failed to notify the Department of a change in circumstances before he was granted a Subclass 187 visa. The delegate found that the applicant and his former wife, Ms Wang, separated in mid-2014 and that, as of that time, the applicant no longer met the definition of ‘member of the family unit’.
On 21 November 2019, the applicant applied to this Tribunal for a review of the delegate’s visa cancellation decision. A copy of the delegate’s decision record accompanied the applicant’s application for the review.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
On 17 March 2016 Ms Haomiao Zhou lodged a Combined Partner (Subclass 820/801) visa application via the Department, sponsored by the applicant. As part of this application, the applicant submitted his statement (document titled love doc) in which he, inter alia, stated that ‘In mid-2014, I and my ex-wife separated due to many irreconcilable conflicts’.
A departmental officer contacted Ms Wang on 15 August 2018. During the telephone conversation the applicant’s former wife stated that her relationship with the applicant ended in approximately April or May of 2014. This was confirmed in the email sent to the Department by Ms Wang on the same day. In her email, Ms Wang wrote:
I confirm that I ended my relationship with Anpeng Zhu approximately at April or May 2014. We were separate after that date and no longer live together.
According to the primary decision record, with her spouse visa application Ms Zhou submitted:
·A copy of an application for a divorce order between the applicant and Ms Wang made on 14 July 2015 at the Federal Circuit Court;
·A copy of the divorce certificate stating that the divorce between the applicant and Ms Wang took effect on 15 August 2015;
·A copy of the marriage certificate indicating the applicant and Ms Zhou were married on 27 January 2016; and
·A document titled ‘love.docx’ as supporting evidence attesting to the applicant’s relationship with his wife Ms Zhou (undated).
The delegate noted that, s.48(2) of the Family Law Act 1975 prescribes that the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
As such, in order to certify the applicant’s divorce, the court had to be satisfied that for a continuous period of at least 12 months immediately preceding 14 July 2015, the date the divorce order was filed, the applicant and Ms Wang had separated and lived separately and apart.
Based on the above-mentioned evidence the delegate concluded that the applicant and Ms Wang had been separated from at least 14 July 2014, 12 months preceding the date of the divorce order application.
On 13 February 2019 a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant. The Department received 11 responses to the NOICC dating from 18 February 2019 to 29 March 2019. In summary, the applicant claims:
·that the relevant circumstances of the relationship between him and Ms Wang did not change until 2015, after he was granted a Subclass 187 visa and therefore, he was not obligated to inform the Department;
·that the date of separation between him and his ex-wife Ms Wang was mistranslated as ‘in 2014’ instead of ‘in 2015’ by his former agent, in the document ‘love.docx’;
·that when Ms Wang was contacted by a departmental officer to confirm when separation occurred, she mistakenly stated approximately April or May 2014;
·that he and Ms Wang did live separately from July 2014 to May 2015 due to employment-related reasons;
·that they did not observe any irretrievable breakdown in relationship before mid-2015;
·that the divorce application was filed at the Melbourne Family Court office on 10 June 2015, that his agent completed answers on the application without advising him about the requirement that separation must be of a permanent nature according to s.48 of the Family Law Act 1975.
In support of the above claims the applicant provided:
·A statement from the applicant (attachment titled ‘love story-Zhu.pdf’) and translation of that document by STG Translation (translation not dated);
·A support letter from STG International Service Group, not signed or dated, stating the date in the document titled ‘love.docx’ was incorrectly translated as ‘In mid-2014’ when it should have been translated as ‘In early 2015’;
·Multiple joint Commonwealth Bank statements between Mr Zhu and Ms Wang for periods extending from 19 October 2012 to 18 October 2015;
·A statutory declaration by Ms Wang dated 28 February 2019 and a translation of that document;
·A 2014 individual tax return for Mr Zhu listing spouse Ms Wang for the period dated 1 July 2013 to 30 June 2014;
·A 2015 individual tax return for Mr Zhu listing spouse Ms Wang for the period dated 1 July 2014 to 28 May 2015;
·A statutory declaration by Mr Zhu dated 1 March 2019 and a translation of that document;
·A copy of departmental form 888 ‘Statutory declaration by a supporting witness relating to a partner visa application’ from Ms Su Meng signed and dated 27 February 2019; and
·A copy of departmental form 888 ‘Statutory declaration by a supporting witness relating to a partner visa application’ from Lin Zhang signed and dated 27 February 2019.
On 20 January 2020, the Tribunal wrote to the applicant inviting him to comment on the validity of the s.375A non-disclosure certificate issued by the Department on 9 December 2019.
On the same day, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 3 March 2020.
On 21 January 2020, the Tribunal summoned the following documents from the Department:
·Statements made by the applicant and his new wife, Ms Haomiao Zhou, lodged with Ms Zhou’s spouse visa application; and
·A copy of the spouse visa application form.
On 3 February 2020, the applicant’s representative provided submissions concerning the validity of the s.375A certificate of 9 December 2019. The Tribunal was informed, inter alia, that the applicant obtained through FOI legislation redacted copies of departmental folios 8 and 9 that were covered by the certificate.
On 25 February 2020, the applicant’s representative submitted:
·Legal submissions outlining the applicant’s immigration history in Australia and stating inter alia that:
oMs Wang moved to Adelaide at the end of December 2013, but that she and Mr Zhu remained in constant communication with one another, and very much regarded their relationship as ongoing;
othat the applicant travelled to Adelaide by car and by air on several occasions to spend time with Ms Wang and that the couple would live together during these visits at Ms Wang’s home in Kensington Gardens or at hotels;
othat Ms Wang more frequently travelled back to Melbourne to visit Mr Zhu but that during all periods that they were apart, the pair spoke with one another frequently and maintained their reliance upon one another for care and support;
othat Ms Wang and Mr Zhu’s relationship remained ongoing, both at the time that this visa application was submitted to the Department in September 2014, as well as when Mr Zhu and Ms Wang were granted their subclass 187 visas on 2 March 2015;
othat it was anticipated that Ms Wang would remain in Adelaide to complete the two (2) years that she was required to remain with her sponsoring employer in South Australia, and that she would thereafter return to her home in Melbourne with Mr Zhu;
othat they found a Chinese agent in Melbourne and visited his office to complete the documentation required to apply for a divorce; that this agent asked Mr Zhu when he and Ms Wang stopped living together and that Mr Zhu provided the literal response stating that this was when Ms Wang moved to Adelaide in December 2013. It is submitted that Mr Zhu did not understand that the information required of him in this context related to when he and Ms Wang’s relationship ended, and so provided the agent (who prepared divorce application) only with the information which was sought from him (interpreted literally). Mr Zhu instructs us that he was not otherwise asked by the agent for information as to when the relationship between he and Ms Wang ended;
othat Mr Zhu and Ms Wang’s application for divorce was filed with the Federal Circuit Court of Australia on 10 June 2015;
othat an English translation of an undated document purporting to be from Mr Zhu concerning his relationship with Ms Zhou incorrectly indicate that he and Ms Wang separated in mid-2014 and that, as noted in the delegate’s decision of 20 November 2019, Mr Zhu’s submits that this document was mis-translated on his behalf by one of his former migration agents;
othat the email sent to Ms Wang by the departmental officer asking her to confirm when her relationship with Mr Zhu ended contained a leading question prompting or encouraging Ms Wang to respond in a particular way;
othat Ms Wang’s email to the Department of 15 August 2018 was in response to a departmental officer calling and then emailing her asking her to put in writing a date that the relationship between she and Mr Zhu ceased and not a spontaneous act of intention as the delegate stated in her decision of 20 November 2019, but rather Ms Wang’s response to a specific request from the Department;
othat Ms Wang subsequently submitted a Statutory Declaration dated 28 February 2019 to the Department correcting the date that she believes the relationship between she and Mr Zhu to have ceased to 28 May 2015; and
othat in her decision of 20 November 2019, the delegate alleges that Ms Wang and Mr Zhu were separated from “at least” 14 July 2014 – notably some two months prior to the lodgement of their subclass 187 visa application. As such, if Mr Zhu and Ms Wang were in fact separated from before the lodgement of their subclass 187 visa application, then it is not possible that the response with regard to their marital status “became incorrect” as alleged, nor that there was relevantly a ‘change’ in circumstances that would require notification to the Department in accordance with s.104 of the Act. On these bases it is submitted that a decision ought to be made that there was no non-compliance by Mr Zhu in the way described in the s.107 notice (the NOICC) dated 13 February 2019 in accordance with s.108(b) of the Act.
The representative provided submissions addressing the r.2.41 matters and policy consideration relevant to the exercising of discretionary power to cancel the applicant’s visa:
·Applicant’s statutory declaration dated 24 February 2020;
·A copy of the applicant’s police clearance certificate dated 15 February 2020;
·A copy of a letter from Coles Insurance dated 24 October 2012;
·A copy of Ms Wang’s Bendigo Bank statements from 9 May 2012 to 8 August 2012 evidencing no transactions;
·A copy of the applicant’s building insurance statement dated 30 June 2019;
·A copy of the settlement completion record related to the property purchased by the applicant and his current wife;
·A copy of the applicant’s Commonwealth Bank statements from 1 October 2014 to 31 March 2015;
·Copies of the applicant’s and Ms Wang’s joint Commonwealth Bank account statements for the period from 18 April 2011 to 18 July 2011, 19 July 2011 to 18 October 2011, 19 October 2011 to 18 April 2012 and 19 April 2012 to 18 October 2012;
·A copy of a booking reference from Tiger Air as evidence of the applicant’s travel to Adelaide on 29 January 2015; and
·Copies of booking references from Tiger Air as evidence of Ms Wang’s travel to Melbourne on 18 April 2014, 11 October 2014 and 1 March 2015.
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Huijin Wang, who is the applicant’s former wife and Mr Lin Zhang who is the applicant’s friend. 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 by his registered migration agent. The representative attended the Tribunal hearing. At the commencement of the hearing, the applicant’s representative submitted (Tribunal folios 80–240):
·Copies of tax invoices from Vodafone highlighting the calls made from the applicant to Ms Wang; and
·Copies of tax returns for the financial years ending on 30 June 2016 and 2017.
At the commencement of the hearing, the applicant’s representative submitted additional evidence of the applicant’s relationship with Ms Wang, including his tax returns for 2016 and 2017 financial years, and Vodafone tax invoices indicating telephone calls made by the applicant to Ms Wang in 2014 and 2015.
The applicant is 32 years of age and a citizen of China who first arrived in Australia on 24 April 2010 as the holder of a Student (Subclass 573) visa. His parents live in China and he does not have any blood relatives in Australia. He currently works in Australia as a tour guide and a bus driver. From mid-2012 until 2017, he worked as a cleaner for two Australian companies and was earning approximately $40,000 per year.
The applicant confirmed in his evidence that an application for a Subclass 187 visa was lodged with the Department on 17 September 2014. He was granted a Subclass 187 visa on 2 March 2015 based on his relationship with his former wife, Ms Huijin Wang.
He first met Ms Wang in 2010 when she was studying a hospitality-related course at La Trobe University. They began living together in 2011 at a rented property in Macleod in Melbourne. They married on 29 August 2011. In early 2012, they moved to Laverton where they lived until early 2013.
In his evidence the applicant stated that he and his ex-wife then moved to a rented property located in Clayton, Melbourne and lived there until December 2013 when Ms Wang moved to Adelaide. In early 2014, the applicant moved with his friend Ms Su Meng to a different property located in Clayton where he remained living until early 2015.
The Tribunal asked the applicant if he knows the address of the Adelaide property where his wife moved in December 2013. He stated that he does not remember. The Tribunal asked if he knows the name of the suburb where Ms Wang lived, and he again stated that he could not remember. The Tribunal noted that the applicant claimed in his written submissions that he frequently visited his wife during her stay in Adelaide. When the Tribunal expressed its concerns about his evidence that he could not recall the address or at least the name of the suburb where his ex-wife lived from December 2013, the applicant stated that it was ‘something Garden suburb’.
The Tribunal enquired as to how many bedrooms were in the house in Adelaide in which his wife lived. The applicant stated that he could not remember. The Tribunal enquired as to how many persons lived with his ex-wife at that property and whether he knows their names – the applicant stated that he could not remember. He gave evidence that his former wife worked at the bakery in Adelaide since early 2014. When asked about the name of that bakery he stated that he could not remember.
The applicant gave evidence that, in late 2013, when his wife decided to move to Adelaide, he wanted to move with her. He claims that he attempted to find work in Adelaide but was unable to do so. The Tribunal noted that in his written submissions he did not state that he also intended to move to Adelaide to be with his wife. On the contrary, it was submitted that the best course of action would be for Ms Wang to go to Adelaide to work and for the applicant to remain in Melbourne and to continue to work. The applicant reiterated that it was difficult to find employment in Adelaide.
The Tribunal enquired as to how many times the applicant travelled to Adelaide to be with his ex-wife during the period from December 2013 to June 2015 when they filed the application for a divorce. Initially, the applicant stated that he travelled to Adelaide more than 20 times. He then changed his evidence and stated that he travelled to Adelaide on five or six occasions during the above-mentioned period and would stay in Adelaide for one or two days on each occasion. His last travel to Adelaide was in January 2015.
The Tribunal enquired if his former wife lived at the same address from December 2013 to June 2015. The applicant responded that she lived at two rented properties in Adelaide but was unable to recall when she moved from one to another.
The applicant stated that from December 2013 to June 2015 his former wife travelled to Melbourne on more than 10 occasions. Most of the time they would stay at his place (that he shared with Ms Su Meng) and occasionally they would stay at a hotel as they wanted to have some privacy. The applicant stated that they stayed at different hotels in Melbourne but was unable to recall the names of those hotels. Her last travel to Melbourne, before they applied for a divorce, was in May 2015. He stated that on this occasion Ms Wang stayed at his place and that at this time they did not discuss the prospect of applying for a divorce.
The Tribunal noted that, according to the applicant’s written submissions, the applicant and his former wife lodged a joint application for divorce on 10 June 2015. The applicant gave evidence that he engaged an agent who completed the necessary paperwork. After signing the divorce application, the applicant sent it by post to Ms Wang for her signature.

The Tribunal noted that, with the divorce application, he was requested to sign and lodge an affidavit. The applicant stated that his agent prepared the divorce application and other documents and that he did not read the answers provided in the divorce application before signing it. When the Tribunal enquired as to why he would sign something he did not previously read, the applicant was unable to provide any meaningful explanation. The applicant reiterated that he was asked by the agent when he and Ms Wang ceased living together and not when their relationship ended.
The Tribunal noted that the applicant submitted several Commonwealth Bank account statements in support of the application. The applicant confirmed in his evidence that:
·Commonwealth Bank account ending xxx9254 was a joint bank account operated by him and his ex-wife;
·Commonwealth Bank account ending xxx6885 is his bank account; and
·Commonwealth Bank account ending xxx6893 is Ms Wang’s account.
The Tribunal enquired about transactions made on 21 and 22 June 2013. The Tribunal noted that during those two days, the total amount of $25,000 was withdrawn from their joint bank account. The Tribunal enquired as to what this amount was for. The applicant stated that he cannot remember.
The Tribunal enquired about a transaction made on 22 November 2013 when $20,000 in cash was withdrawn from the joint bank account. The applicant stated that he believes that this was a bank cheque drawn for the purchase of his car.
The Tribunal enquired about a transaction made on 25 October 2013 when the amount of $59,811 was transferred from the joint bank account to the account ending xxx9994. The applicant stated that this money was transferred to his business partner’s account and is related to the unsuccessful purchase of a business (bakery shop in Geelong) in 2013.
The Tribunal enquired about a transaction made on 14 October 2012 when the amount of $60,000 was transferred from Ms Wang’s account to their joint bank account. The applicant stated that this money was sent to his wife by her mother for the purchase of the business in Geelong.
The Tribunal noted that, according to the primary decision record, the applicant provided a statement in support of his current wife’s spouse visa application (the first statement). Relevantly, in the first statement the applicant wrote that in mid-2014, ‘I and my ex-wife separated due to many irreconcilable conflicts’.
The Tribunal further noted that he subsequently provided a second statement. Relevantly, in the second statement the applicant wrote that ‘my girlfriend broke up with me in early 2015 due to contradiction between us’.
The Tribunal noted that in his written submissions, the applicant claims that the first statement was inaccurately translated as ‘mid-2014’ instead ‘early 2015’. In support of this claim, the applicant submitted a copy of an undated and unsigned letter from STG group. The Tribunal explained to the applicant that, apart from finding it difficult to accept that a qualified translator would inaccurately translate significantly different dates, the Tribunal cannot give any weight to this letter from STG group as it was not signed or dated.
The Tribunal further noted that on 5 April 2018, the applicant and his new wife submitted another statement to the Department with the spouse visa application. The Tribunal gave the applicant a copy of this statement (the third statement). The applicant confirmed that this statement contains his signature. Relevantly, in his third statement the applicant wrote that his wife ‘officially ask a separate life in 2014’. The Tribunal asked the applicant if this statement was also inaccurately translated.
The applicant gave evidence that his agent prepared and handled all documentation. He was not sure that all details were correct. He stated that they had some problems before 2015 but maintained that the decision to end the relationship was reached in May 2015.
The Tribunal expressed its concerns related to the inconsistency in the applicant’s oral evidence and written statements. The Tribunal raised the applicant’s credibility as a witness and explained the consequences of not finding him to be a credible witness.
The applicant’s representative confirmed that she obtained a redacted copy of documents covered by the s.375A certificate. The Tribunal noted that most of the information covered by the certificate is contained in the primary decision record. The Tribunal noted that the representative in her submissions addressed the information related to a telephone conversation between the applicant’s ex-wife and an officer of the Department as well as subsequent emails exchanged between them.
The Tribunal informed the representative that the s.375A certificate is also purporting to protect the allegation that the applicant is sponsoring his current wife for $100,000. The Tribunal explained that it considers this allegation unsubstantiated as there is no information before it as to who provided this information to the Department. The Tribunal indicated that this information is not relevant to the current review and will not be the reason or part of the reason for the Tribunal’s decision.
In accordance with s.359AA of the Act, the Tribunal informed the applicant that there was information before the Tribunal obtained from the Department that would be the reason or part of the reason for affirming the decision that is under review. The information was:
·On 5 April 2018, the applicant submitted a statement in relation to his current wife’s application for a spouse visa. The Tribunal gave him a copy of this statement in which he wrote that his ex-wife officially asked for a separate life in 2014.
·On 15 August 2018, the applicant’s ex-wife wrote an email to the Department stating that she ended her relationship with him approximately in April or May 2014.
The Tribunal explained why this information is relevant to the current review and consequences if the Tribunal relies on this information. The Tribunal clarified with the applicant that he understood the information, its relevance to the Tribunal’s decision and consequences of the Tribunal relying on the information. The Tribunal then invited the applicant to comment on or respond to the information and informed him that he could request additional time to do so. On the applicant’s request, the hearing was adjourned for 15 minutes.
In his response to or comment on information put under s.359AA of the Act, the applicant stated that he and his former wife had some problems and arguments in 2014 and that they discussed separation at that time. However, no final decision about permanent separation was made at that time. He stated that his ex-wife did ask for a separate life in 2014, that there was conflict between them because they were living in two different places.
In relation to his ex-wife’s email to the Department, the applicant stated that when Ms Wang was asked by the officer of the Department as to when she separated from the applicant, she could not remember. She was then told by the officer that the Department knows that the divorce took place on 15 August 2015 and inferred that they must have been separated at least 12 months prior to divorce. The applicant stated that his ex-wife was confused and could not remember the exact date when they separated and instead gave just an estimate to the Department.
The Tribunal noted that the applicant’s representative provided submissions on 25 February 2020 addressing discretionary considerations. The Tribunal indicated that it will consider those submissions and enquired with the applicant if there is anything else he would like the Tribunal to consider. The applicant stated that he has been living in Australia for more than 10 years and is integrated into the Australian community, that he is paying tax and that through his work he can promote tourism from China to Australia.
Oral evidence of Ms Wang
In her evidence, Ms Wang stated that she moved back from Adelaide to Melbourne in mid-2017 for study purposes. She met her new husband, who is an Australian citizen, in February 2017 and they married on 22 February 2018. Her mother lives in China.
She first met the applicant in 2010 and they married on 25 August 2011. The parties initially rented a residential property in Preston, Victoria. After two or three months they moved to Macleod, Victoria where they stayed at a four-bedroom house with seven or eight other tenants for some 18 months.
Ms Wang and the applicant then rented a two-bedroom granny flat at Laverton, Victoria. The witness was unable to recall when they moved to Laverton and stated that, after living together in this suburb, she moved to Adelaide in December 2013. She stated that she never lived with the applicant in Clayton, Victoria.
The witness was unable to recall ever discussing with the applicant plans to live in Adelaide for a few years. The Tribunal enquired as to whether the applicant ever indicated to her that he also wanted to move to Adelaide with her and find a job there. Ms Wang stated that the applicant never wanted to move to Adelaide, nor did he attempt to find a job there.
The witness gave evidence that she rented a room at a house located at Magill in Adelaide where she lived with two other tenants. She stayed there for more than two years and then moved to a suburb she named as Rostrevor. She lived there with three other tenants.
Ms Wang stated that the applicant visited her in Adelaide on five or six occasions. Last time he was in Adelaide was in January 2015. During this visit, the parties stayed at Ibis Hotel. The witness was unable to recall how long the applicant stayed in Adelaide.
Ms Wang gave evidence that from December 2013 till March 2015 she travelled to Melbourne on more than 10 but less than 20 occasions. She stated that the last time she travelled to Melbourne to be with her then husband was in March 2015. The witness claims that on this occasion she and the applicant did not discuss the possibility of divorce.
Ms Wang gave evidence that, prior to today’s hearing, the last time she had contact with the applicant was some two weeks ago when he asked her to attend the hearing in person. She only found out about the applicant’s new wife and their marriage earlier this year.
The witness stated that her mother who lives in China was financially supporting her by sending money to Australia. The Tribunal presented copies of the relevant bank statements to the witness. The Tribunal enquired about the transaction made on 14 October 2012 when the amount of $60,000 was transferred from her account to the parties’ joint bank account. Ms Wang stated that her mother sent her some money at the time she wanted to purchase a business in Geelong but was unable to recall how much money was sent to her.
Ms Wang stated that she cannot remember anything about financial transactions from June 2013 when their joint bank account was debited for $25,000. She reiterated that she cannot remember why this amount was withdrawn from their joint account.
Similarly, she stated that she cannot remember anything about financial transactions from November 2013 when $20,000 was withdrawn from their joint account. The witness gave evidence that both her and the applicant’s wages were deposited into their joint bank account but stated that she does not remember when they stopped doing so.
Ms Wang stated that she remembers having a telephone conversation with the officer of the Department in August 2018. She recalls being asked when she separated from her ex-husband. She responded that she and the applicant separated in October 2013. The Tribunal observed that in her email she informed the Department that her relationship with the applicant ended in approximately April or May 2014.
The witness then changed her evidence and stated the officer of the Department asked her if they separated one year before the divorce and that she confirmed that the relationship ended in April or May 2014.
The Tribunal noted that in her Statutory Declaration of 28 February 2019, she declared that the decision to end the marriage was not made until May 2015. The Tribunal asked if she provided false and misleading information to the Department in her email of 15 August 2018. Ms Wang denied that in her email to the Department she provided false and misleading information.
The Tribunal noted that the applicant provided a statement to the Department in which he wrote that Ms Wang told him that she wants to have a separate life in 2014. Ms Wang stated that she does not believe that she stated that and that she possibly told the applicant that she wants to stay in Adelaide.
Ms Wang stated that during the period from December 2013 until May 2015, the parties communicated using the Q&Q application and sometimes by phone.
Evidence of Mr Zhang
The witness stated that he has known the applicant since 2012 and that both are from the same province in China. He never had any business dealings with the applicant. They met playing online games. It was in early 2013 that they met in person. The first time he met Ms Wang was in June 2013.
The witness gave evidence that the applicant and Ms Wang lived in Clayton in 2013 and that he visited them once or twice per month as they played card games together. He stated that he does not know when Ms Wang moved to Adelaide. Initially he stated that he saw Ms Wang during her visits to Melbourne one or two times every three months. He then changed his evidence and stated that he saw Ms Wang on three or four occasions since she moved to Adelaide. The last time he saw Ms Wang was in early 2015 when they had lunch in the Melbourne CBD.
The witness stated that the applicant did not tell him when he met his new wife. He still plays games with the applicant.
On 10 March 2020, the applicant’s representative provided further submissions stating inter alia:
In relation to s.375A certificate – it was submitted that the allegation of the applicant receiving $100,000 for sponsoring his new wife for a spouse visa should not be relied upon or influence the Tribunal in any way in relation to the applicant’s credibility.
In relation to the applicants’ inability to recall certain events from 5 or 7 years ago – that human memory is notoriously unreliable, citing Dr Brainerd and reproducing extracts from 2008 report produced by the British Psychological Society. The representative also referred to the American Bar Association data of wrongful convictions and submitted that, due to the passage of significant period of time between the events, there is a cause for pause in considering the weight to be placed upon any alleged inability on the applicant’s part to recall specific addresses and other details.
In respect of the applicant signing the divorce application – it was submitted that the applicant believed that the contents of the application form completed by agent were correct and that no real weight should be placed on what was written in the divorce application.
In respect of compliance with s.104 of the Act, the representative re-iterated that it cannot be simultaneously the case that the applicant’s and Ms Wang’s relationship ended as having ceased prior to lodgement of their Subclass 187 visa application on 17 September 2014 and that there was thereafter a ‘change in circumstances’ that would require notification to the Department pursuant to s.104 of the Act.
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.
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.104 in that the applicant failed to advise the Department of changed circumstances. That in turn meant that answers to questions in his application form were incorrect in light of the new circumstances. Specifically, it was alleged that the applicant did not notify the Department that he separated from his ex-wife in mid-2014 and that, as of that time, the applicant no longer met the definition of ‘member of the family unit’.
Based on the evidence before it, the Tribunal finds that Mr Zhu and Ms Wang separated in December 2013 when Ms Wang moved her residence to Adelaide. This separation became permanent in July 2014 and as of that time, the parties were unable to meet the definition of a spouse for the purposes of s.5F(2)(d)(ii) of the Act.
Section 48 of the Family Law Act 1975 defines the process to obtain a divorce as follows:
Divorce
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
Relevantly, s.48(2) of the Family Law Act 1975 prescribes that the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order. The Federal Circuit Court made a divorce order on 14 July 2015 as the court was satisfied, based on the evidence before it that Mr Zhu and Ms Wang separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.
The Tribunal does not accept the applicant’s claim that the parties reached the decision to end their relationship in May 2015. Nor does it accept that the parties considered their separation from July 2014 to May 2015 to be a temporary separation caused by work-related commitments.
The Tribunal does not accept the applicant’s claim that his first statement provided in support of his current wife’s spouse visa application (where he stated that in mid-2014, he and his ex-wife separated due to many irreconcilable conflicts) was inaccurately translated by STG group. The Tribunal finds the applicant’s explanation is implausible and gives no weight to the letter purportedly provided by the STG group as it was not signed or dated.
The Tribunal’s finding that the parties were separated on a permanent basis from July 2014 is further supported by the statement provided by the applicant to the Department on 5 April 2018. In this statement, which was signed by the applicant, he wrote that his ex-wife ‘officially ask a separate life in 2014’.

The Tribunal does not accept the applicant’s claim that his ex-wife was confused during the telephone conversation with the officer of the Department and could not remember the exact date when they separated. The Tribunal does not accept the applicant’s claim that an email from the departmental officer to Ms Wang can only be considered to have included a leading question, prompting or encouraging Ms Wang to respond in a particular way. She was free to provide any information she wanted to the Department.
The Tribunal finds both the applicant and Ms Wang not to be credible witnesses. In considering the applicant’s claims the Tribunal observes that during the hearing a number of significant inconsistencies and discrepancies in the central components of the applicant’s evidence emerged that significantly detract from both the plausibility of the applicant’s claims and his overall credibility.
The applicant’s oral evidence was inconsistent with his written submissions provided to the Tribunal. His answers to the Tribunal’s questions were vague and ambiguous. The Tribunal considered the applicant’s representative’s submissions concerning the applicant’s inability to recall certain events from five or seven years ago. In the Tribunal’s view, it is not unreasonable to expect that a person who works as a cleaner and earns $40,000 per year would know when and for which purpose the amount of $25,000 was withdrawn from his account. In the Tribunal’s view, it is not unreasonable that a husband would know the address where his wife lived for two years and who she lived with.
The applicant and Ms Wang gave inconsistent evidence as to where they lived prior to Ms Wang moving to Adelaide. Similarly, they gave inconsistent evidence as to whether the applicant ever intended to move his residence to Adelaide and whether he ever attempted to find a job there. The Tribunal has serious concerns as to whether Ms Wang had ulterior motives to keep the applicant included in her visa application after she moved to Adelaide. This is something that should be further investigated by the Department.
Mr Zhu was granted a Subclass 187 visa on the basis of his spousal relationship with Ms Wang as he was found to be a ‘member of the family unit’ in accordance with cl.187.311 of the Regulations and r.1.12 as in force at the relevant time as her ‘spouse’ (as defined by s.5F of the Act).
In her submissions of 25 February 2020, the applicant’s representative wrote that Ms Wang and Mr Zhu’s application for a Subclass 187 visa was submitted to the Department on 17 September 2014 and that, according to the primary decision record, the delegate found that Ms Wang and Mr Zhu were separated from ‘at least’ 14 July 2014 – notably some two months prior to the lodgement of their Subclass 187 visa application.
As such, if Mr Zhu and Ms Wang were in fact separated from before the lodgement of their Subclass 187 visa application, then it is not possible that the response with regard to their marital status ‘became incorrect’ as alleged, nor that there was relevantly a ‘change’ in circumstances that would require notification to the Department in accordance with s.104 of the Act.
The Department is both alleging that Mr Zhu was not relevantly a member of Ms Wang’s family unit at the time of lodgement of the couple’s Subclass 187 visa application in September 2014 and that Mr Zhu was obligated to advise the Department of a change in his circumstances that is alleged to have occurred pre-lodgement of his application.
Relevantly, s.104 prescribes:
Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
The Tribunal notes that s.104 prescribes that if circumstances change (emphasis added by the Tribunal) the non-citizen must as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer. Both the Tribunal and the Department found that Mr Zhu and Ms Wang were permanently separated since July 2014 – some two months prior to the lodgement of their Subclass 187 visa application. Therefore, there was no change in circumstances from the day they applied for a Subclass 187 visa until the visa was granted on 2 March 2015.
The terms of ss.108 and 109(1) indicate that the procedural requirements set out in s.107 are mandatory preconditions to the exercise of the power to cancel. Any defects in the s.107 notice cannot be cured by the Tribunal on review.[1] In such cases, the only course open to the Tribunal would be to set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s.109 was not enlivened.
[1] [2005] FMCA 27 (Smith FM, 27 January 2005).
Based on the Tribunal’s findings, it appears that the applicant provided an incorrect answer in the visa application form and the cancellation should have proceeded in respect of breach of s.101 of the Act. It is open for the Department to reconsider the visa cancellation on this ground.
For these reasons stated above, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.
Antonio Dronjic
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.
104Changes in circumstances to be notified
(1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4)Subsection (1) applies despite the grant of any visa.
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.

[2020] AATA 1385

8 April 2020

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Immigration

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