Zhu (Migration) - [2020] AATA 1385

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Zhu (Migration)

Details

AGLC: Zhu (Migration) [2020] AATA 1385
Case: [2020] AATA 1385
Decision Date: 8 April 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Anpeng Zhu against a decision to cancel his Subclass 187 – Regional Sponsored Migration Scheme visa. The cancellation was based on the Department's assessment that Mr Zhu had provided incorrect information regarding the date of his separation from his former wife, Ms Wang, which was relevant to his visa application. The core of the dispute revolved around whether Mr Zhu had failed to notify the Department of a change in circumstances, specifically the breakdown of his relationship with Ms Wang, as required by section 104 of the *Migration Act 1958* (Cth).

The legal issues before the Tribunal were whether Mr Zhu had failed to comply with his notification obligations under section 104 of the *Migration Act 1958* (Cth) by providing incorrect information about the date of his separation from Ms Wang, and if so, whether his visa should be cancelled. The Department's primary decision record indicated that the divorce order between Mr Zhu and Ms Wang was filed on 14 July 2015, and under section 48(2) of the *Family Law Act 1975* (Cth), this required the parties to have separated and lived apart for a continuous period of at least 12 months immediately preceding that date. This led the delegate to conclude that separation occurred by at least 14 July 2014. However, Mr Zhu contended that his former agent mistranslated the date of separation as "in 2014" instead of "in 2015" in a supporting document, and that Ms Wang had mistakenly stated the separation date as April or May 2014 when contacted by the Department.

The Tribunal considered the evidence presented, including statements from Mr Zhu and oral evidence from Ms Wang. Ms Wang stated that she moved to Adelaide in December 2013 and that the applicant visited her there on several occasions, with the last visit being in January 2015. She also stated that she travelled to Melbourne on more than 10 but less than 20 occasions between December 2013 and March 2015, with her last visit to be with Mr Zhu being in March 2015. Crucially, Ms Wang testified that she and Mr Zhu did not discuss divorce on that occasion and that she only learned of his new wife earlier that year. The Tribunal found that the evidence did not establish non-compliance by Mr Zhu with his notification obligations. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr Zhu's Subclass 187 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 DronjicMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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‑complianceThe 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.

Ratio Decidendi

Legal Principle Established

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 DronjicMemberATTACHMENT – 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.97InterpretationIn 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 applicationA 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 answerAny 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 answersFor 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‑complianceThe 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.