1927138 (Migration)

1927138 (Migration) [2020] AATA 2107 (4 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1927138
MEMBER:Helena Claringbold
DATE:4 March 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Statement made on 04 March 2020 at 2:37pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) – Subclass (155) (Five Year Resident Return) – false or misleading information in visa applications – genuine relationship – overlap of relationships – failure to inform department of changes – inconsistent evidence – young Australian citizen child with medical conditions – best interest of child to live with parents – socio-economic conditions and medical treatment in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 109, 359AA
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 801.221
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 11 September 2018, [the applicant] was granted a Subclass (155) (Five Year Resident Return) visa.
On 24 September 2019, a delegate of the Minister for Immigration and Home Affairs cancelled the applicant’s visa under s.109(1) of the Migration Act 1958 (the Act). On 26 September 2019, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.
On 17 February 2020, the applicant appeared before the Tribunal to give evidence and present argument. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case files and the Tribunal’s case file and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
BACKGROUND ON THE EVIDENCE
[In] September 2010, the applicant arrived in Australia as the holder of a Subclass 573 student visa. On 20 December 2011, he applied for combined Partner Subclass 820/801 visas. The application was based on his spousal relationship with [Ms B], his sponsor. On 7 August 2013, he was granted a Subclass 820 partner visa.
On 25 March 2014, the applicant was granted a Subclass 801 partner visa, based on his relationship with [Ms B], the sponsor. On 14 July 2015, the applicant applied for Conferral of Australian Citizenship. On 11 September 2018, the applicant was granted a Subclass 155 five year resident return visa. On 7 December 2017, the Department issued a Notice of intention to consider cancellation (Notice) his citizenship approval. On 29 January 2019, the Department issued a second Notice of intention to consider cancellation (Notice) of his citizenship approval. On 20 August 2019, the Department issued a Notice of Intention to Consider Cancellation (NOICC) of his Resident Return Subclass 155 visa.
On 26 August 2013, [Ms A], the applicant’s current spouse, arrived in Australia as the holder of a Subclass 573 student visa. On 8 December 2015, [Ms A] lodged combined Partner Subclass 820/801 visa applications with the Department. The applicant was declared as the sponsor for the applications. On 19 January 2017, [Ms A] was granted a Subclass 820 partner visa. The applicant claims to have a common child with [Ms A] who was born on [Date].
The effect of s.109 of the Act
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
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, as detailed in the delegate’s Notice of Intention to Consider Cancellation (NOICC) and mirrored in the delegate’s decision record and as identified and particularised in the s.107 notice was non-compliance with s.104(1) of the Act in the following respects:
‘Departmental records indicate that you initially arrived in Australia as a holder of a Student (Subclass 573) visa [in] September 2010 granted to you [in] August 2010 and valid until [March] 2014.
On 20 December 2011, you applied for a Partner (Subclass 820/Subclass 801) visa sponsored by [Ms B] ([Date of birth], Female).
Page 9
In your Form 47SP – Application for migration to Australia by a partner, you provided the following responses to questions are italicised:
25. Your current residential address?
Note: You are required to provide a residential address on this form for it to be a valid visa application. Under legislation, a post office box address is not acceptable as a residential address.
[Address 1, Suburb 1]
Page 16
42. Your fiancé(e) or partner’s full name (as shown in passport or travel document)?
Family name: [Ms B]
Given names: [Given names]
47. Sex: Female
48. Date of Birth: [Date]
53. Fiancé(e) or partner's residential address?
[Address 1, Suburb 1]
Page 19
66. When and where did you and your fiancé(e) or partner first meet?
Date: More than 10 years ago
Place: Vietnam
67. How long after you met did you and your fiancé(e) or partner begin a relationship?
More than 1 years
68. When did you and your fiancé (e) or partner make the decision that you both wanted to commit to a long-term relationship?
Date: 16/06/2011
69. When and where did you begin a married or de facto relationship with your fiancé(e) or partner?
Please see booklet 1, Partner Migration for definitions of married relationship and de facto relationship.
Date: [10]/2011
Place: [Suburb 2], NSW
71. Do you and your fiancé(e) or partner intend to maintain a lasting relationship?
Yes
Page 21, your response, in part
82. In which countries have you lived for 12 months (in total) or more during the last 10 years?
Country: Australia
Dates lived there
From:   10/9/2010
To:     Current
Last permanent address in that country?
[Address 1, Suburb 1]
Page 30, signed and dated by 15/11/2011 by you
96. DECLARATION AND CONSENT
WARNING: Giving false or misleading information is a serious offence.
This declaration and consent must be signed by the main applicant and each accompanying person aged 16 years or over.
Warning: Under the Migration Act 1958, there are penalties for deliberately giving false or misleading information. Maximum penalty = 10 years imprisonment and/or AUD110,000.
I declare that the information I have supplied in this application is complete, correct and   up-to-date in every detail.
I understand that if I give false or misleading information, my application may be refused, or any visa granted may be cancelled.
I will inform the Department of Immigration and Citizenship of any changes to my personal circumstances (including change of address) while my application is being considered, I understand this also applies to my permanent migrant/residence visa application.
I will inform the Department of Immigration and Citizenship if my relationship with my fiancé(e) or partner breaks down or ends in divorce, separation or death before this application is decided.
In support of your partner visa application you provided a NSW Registry of Births Deaths and Marriages marriage certificate for you and [Ms B] dated 10 October 2011 stating the your date of marriage as [October] 2011.
You provided rental receipts for renting [Address 1, Suburb 1] with [Ms B] from December 2011 until April 2013.
You and [Ms B] provided statutory declarations signed 15 December 2011 and 1 August 2013 in which both of them stated that they married [in] October 2011 and that their relationship was genuine and continuing.
On 7 August 2013 based on the information provided in your partner visa application and meeting the relevant criteria, you were granted a Partner (Subclass 820) visa.
On 4 November 2013 you provided further information in support of your application for the second stage partner visa (the Partner (Subclass 801) visa), which included a Checklist for Partner Visa Processing which included the following information (italicised):
Page 1
Address (Residential)?
[Address 2, Suburb 1]
Page 2
Your sponsor?
Name: [Ms B]
Date of birth: [Date]
Address (Residential): [Address 2, Suburb 1]
Page 3
Immediate Family Members?
Relationship you: Wife
Family Name: [Ms B]
All Given Names: [Given names]
Date of Birth: [Date]
Relationship to you: Mother in law
Family Name: [Family name C]
All Given Names: [Given names]
Date of Birth: [Date]
You also provided statutory declarations completed by you and [Ms B] dated 22 October 2013 in which you stated you had a mutual commitment to a shared life as a husband and wife to the exclusion of all others. Your relationship was genuine and continuing and you lived together. In your statutory declaration you stated that your address was [Address 2, Suburb 1]. You provided Origin electricity bills addressed to you at [Address 2, Suburb 1] dated 19 July 2013 and 23 October 2013. You also provided Australia Post correspondence and a Vodafone bill addressed to you and [Ms B] at [Address 2, Suburb 1] dated 28 September 2013 and 6 October 2013 respectively.
The criteria for the grant of a Partner (Subclass 801) visa is at regulation 801.221 of the Migration Regulations 1994, part thereof which states:
801.221
(1)     The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2)     An applicant meets the requirements of this subclause if:
(a)     the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i)     the sponsoring partner; or
(ii)the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c)     the applicant is the spouse or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have    passed since the application was made.
Spouse is defined at Section 5F of the Migration Act:
Section 5F Spouse
For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2)     For the purposes of subsection (1), persons are in a married relationship if:
(a)they are married to each other under a marriage that is valid for the   purposes of this Act; and
(b)they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c)    the relationship between them is genuine and continuing; and
(d)    they:
(i)     live together; or
do not live separately and apart on a permanent basis.
(ii) (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Based on the submitted information alongside satisfying the above and other relevant criteria, the delegate considered you were [Ms B]’s spouse and on 25 March 2014 granted the permanent stage Partner (Subclass 801) visa.
Since the grant of your partner visa, adverse information has come to the Department’s attention about your relationship with [Ms B].
[In] August 2013, [Ms A] ([Date of birth], Female) arrived in Australia on a Student (Subclass 573) visa. On her incoming passenger card dated [August] 2013, [Ms A] stated that her intended and contact address in Australia was [Address 2, Suburb 1].
The Department has access to Provider Registration and International Student Management System (PRISMS), the Department of Education’s register for international students. PRISMS indicated [Ms A] advised her education provider on or about 11 September 2013 that her address was [Address 2, Suburb 1].
On 8 December 2015, [Ms A] applied for a Partner (Subclass 820/Subclass 801) visa sponsored by you. In her Form 47SP – Application for migration to Australia by a partner, [Ms A] provided the following responses (italicised):
Page 9
29. Your parents (including full and step parents)?
Family name: [Family name D]
Given names: [Given name]
Sex: M
Date of birth: [Date]

Relationship status: M
Relationship to you: Step-Father
Country of residence: Vietnam
Relationship status codes
M = Married
Page 11
35. Your fiancé(e) or partner’s full name (as shown in passport or travel document)?
Family name: [Family name]
Given names: [Given names]
40. Sex: Male.
41. Date of Birth: [Date]
Page 14
55. What is the current relationship with your sponsor? (page 14)
Married
Date of marriage: [08]/2015
Place of marriage: [Suburb 2], NSW
57. Have you and your fiancé(e) or partner met in person?
When did you first meet?
05/09/2004
Where did you first meet?
My high school
58. When did you and your fiancé(e) or partner commit to a shared life together to the exclusion of all others?
01/07/2014
63. Has your fiancé(e) or partner been married to a person other than you (including if they are still legally married to that person)?
Yes
Name of previous spouse
[Ms B]
Their date of birth: [Date]
Date of marriage: [10]/2011
Date marriage ended: [06]/2015
How did the marriage end?
Divorce
Number of children from this relationship? 0
[Ms A] submitted a Form 80 Personal particulars for assessment including character assessment dated 16 December 2015 in which she provided the following responses (italicised):
Page 2, in part
17. Your address history for the last 10 years?
Date from: Nov-2014
Date to: Current
Full address: [Address 3, Suburb 1]
Country: Australia
Date from: Sep-2013
Date to: -
Full address: [Address 2, Suburb 1]
Country: Australia
Date from       -
Date to: Sep-2013
Full address: [Address] Ho Chi Minh City
Country: Vietnam
A Form 40SP Sponsorship for a partner to migrate to Australia completed by you dated 29 September 2015 was submitted by [Ms A] stating:
Part H – About your home?
42. How many bedrooms does the dwelling have? 04
43. How many people live in the dwelling? 02
44. What is the relationship of these people to you? Spouse
45. Ownership of dwelling: Paying home loan
[Ms A] also provided the following documents:
- Family Law Act 1975 Divorce Order dated [June] 2015 stating your marriage with [Ms B] ended [in] July 2015.
- NSW Registry of Births Deaths and Marriages marriage certificate dated [June] 2016 for [Ms A] and your marriage [in] August 2015.
- NSW Registry of Births Deaths and Marriages birth certificate dated [October] 2015 for [the child], [Gender] stating that you and [Ms A] are [her/his] parents.
You and [Ms A] provided statutory declarations dated 23 November 2015 stating that you were friends since high school and met by chance in August 2014 at [Suburb 1] after [Ms A] had arrived in Australia to undertake education. You moved in with [Ms A] in October 2014. You married [Ms A] [in] August 2015 and you have a child together born on [Date].
Based on this information alongside satisfying other relevant criteria, on 19 January 2017 [Ms A] was granted a Partner (Subclass 820) visa.
On 14 July 2015 you lodged an application for Conferral of Australian Citizenship. On 7 December 2017 the Department issued you a Notice of intention to consider cancellation (Notice) of your citizenship approval regarding your application for Australian citizenship.
You were provided an outline of your immigration and relationship history in Australia and requested to comment on it, including to comment, on your separation from [Ms B] within less than one month after the grant of the Partner (Subclass 801) visa.
In your response to this Notice, on 4 January 2018 you submitted a statutory declaration and submission prepared by your solicitor [Mr E] stating that towards the end of April 2014 when you were living with your ex-wife ([Ms B]) and mother in law at [Address 2, Suburb 1], you had a falling out with your mother-in-law who threw you out of the house. You then rented a house opposite to [Ms B] at [Address 3, Suburb 1]. You claimed that over the following months, you attempted to reconcile your relationship with [Ms B] however when you learnt that she had travelled to Vietnam and had cut off all communication with you, you realised your marriage with [Ms B] was over.
You also provided the following supporting documents:
- Confirmation letter from [Ms F], the landlord of [Address 3, Suburb 1] dated 5 April 2018 stating that you were living at this address from April 2014 until March 2017. You also provided her NSW Land Registry Services – Title search record dated 9 April 2018.
- Statutory declaration signed by [G] on 9 April 2018 stating that you were living at [Address 3] around May 2014 to 2017 and [Ms A] started living there in October 2014.
- On 29 January 2019 you were issued a second Notice by the Department in relation to the consideration of the cancellation of your citizenship approval and requested your response.
In addition to the information included in the initial Notice dated 7 December 2017, this Notice stated that [Ms A] and you may have been residing at [Address 2, Suburb 1] as early as 26 August 2013 and therefore you may not have been in a genuine relationship with your sponsor ([Ms B]) at the time.
This was based on [Ms A]’s Form 80 Personal particulars for assessment including character assessment dated 16 December 2015 in which on Q17 of page 2 she provided the following responses:
Page 2, in part
Your address history for the last 10 years?
Date from: Nov-2014
Date to: Current
Full address: [Address 3, Suburb 1]
Country: Australia
Date from: Sep-2013
Date to:
Full address: [Address 2, Suburb 1]
Country: Australia
This also suggested that you were in contact with [Ms A] as soon as she arrived in Australia and [Ms A] was residing with you from as early as 26 August 2013, and therefore your claim to have ‘ran into’ her in [Suburb 1] shops by coincidence in August 2014 was questionable.
It was noted that on your Form 40SP Sponsorship for a partner to migrate to Australia dated 29 September 2015 you had stated that two people (you and spouse) lived in the dwelling for which you were paying a home loan. It was also noted that on 4 January 2018 you had provided a letter of support from your landlord of [Address 3, Suburb 1] dated 5 April 2018 stating that you were living at this address from April 2014 until March 2017.
From the landlord’s NSW Land Registry Services – Title search record dated 9 April 2018, it appeared that you had either provided false information in the application for sponsorship of [Ms A]’s partner visa (namely, that you were paying the home loan at that address), or submitted fraudulent documentation in your landlord’s letter and title search record in response to the Department’s initial Notice dated 7 December 2017.
The Notice also stated that the Department had evidence that you had made at least five international funds transfers to [Ms A] in 2013 and 2014 while you were residing at [Address 1, Suburb 1] and [Address 2, Suburb 1]. You also made at least three financial Ms Transfers to [Mr D], [Ms A]’s step-father, raising further concerns about you being in a relationship with [Ms A] at a time when you claimed to be in an ongoing relationship with your sponsor [Ms B].
On 24 March 2019 you provided a response to the above Notice which included the following documents:
- Statutory declaration from you dated 11 March 2019
- Copy of your Vietnam passport [Number] issued [in] 2017
- Copy of your NSW driver licence ([Number] and Medicare card ([Number])
- Your National Police Certificate dated 8 February 2019
- Visa Entitlement Verification Online check
- Ceremonial marriage certificate for you and [Ms A] dated [August] 2015
- NSW marriage certificate dated [June] 2016
- [Ms A]’s Vietnam passport [Number] issued on [in] 2013
- Letter of support from [Education consultancy] Sydney
- Statutory declaration from [Ms H] dated 4 March 2019
- [Ms A]’s training course completion certificate and tax invoice dated 6 June 2014 and 13 June 2014 from [Training provider] and [the child]’s Australian Citizenship Certificate, NSW birth certificate and Australian passport
- Letter from Dr [I] dated 31 January 2019
- Your DNA parentage results and reports dated 24 February 2017 from [Genetic testing provider]
- [Company name] P/L Certificate of registration of a company documents
- Your and [Ms A]’s individual tax returns for 2016 and 2017
- Your superannuation documents
- Contract of sale of land – 2005 edition for [Address, Suburb 3].
On 6 February 2019 you requested the Department to provide evidence for the eight financial transfers referred to in the Notice dated 29 January 2019. The Department sent you an email on 26 March 2019 attached to which was an AUSTRAC[1] report listing the details of the relevant eight international fund transfers made to [Ms A] and [Mr D] in 2013 and 2014 as following:
[1] AUSTRAC is an Australian government financial intelligence agency set up to monitor financial transactions to identify money laundering, organised crime, tax evasion, welfare fraud and terrorism. Australian Transaction Reports and Analysis Centre (AUSTRAC). Transfers to [Mr D]
23 July 2013 $6,500, 5 January 2014, $250, 19 May 2014, $5,000
Ms Transfers to [Ms A]
16 March 2013, $4,263, 29 May 2013, $2,024, 15 June 2013, $199, 2 July 2013, $180,
19 August 2013, $150
On 9 April 2019 you responded via a statutory declaration dated 9 April 2019 disputing the financial Ms Transactions stating that you had requested the actual transfers but had only been provided a list of the transfers by the Department. You had contacted [a] Money Transfer Agent to verify these transactions for which they had advised you of having no records for them. You had already advised the Department that at that time you were associated with [Education consultancy] Sydney and made several financial transfers to students you were representing. You had no relationship with [Ms A] from 2004 to August 2014. [Ms A] had requested you to provide assistance with her student visa application but you had not personally met her.
On 18 July 2019 after taking your responses into consideration, the Department cancelled your Australian citizenship approval.
Based on the information before me, I consider that [Ms A] had been living with you at [Address 2, Suburb 1] since her arrival in Australia [in] August 2013 and that your relationship had commenced earlier or at least from that time onwards. This appears to indicate that at that time of providing further information to the Department on 4 November 2013 in support of your Partner (subclass 801) visa application, you were not in a genuine, ongoing relationship with [Ms B] to the exclusion of all others.
I consider that you did not comply with section 101(b) of the Migration Act as the following information you provided in the Partner (subclass 801) visa application on 4 November 2013 appears to be incorrect:
Your statutory declaration dated 22 October 2013 in which you stated that you and [Ms B] had a mutual commitment to a shared life as a husband and wife to the exclusion of all others and that your relationship was genuine and continuing.
I also consider that the you did not comply with section 104 of the Migration Act as it appears that prior to the grant of the Partner (subclass 801) visa on 25 March 2014, your circumstances had changed in that you were no longer in a genuine, ongoing relationship with your sponsor [Ms B] to the exclusion of all others. You did not notify the Department of the change to your circumstances before the grant of the Partner (subclass 801) visa. Had you notified the Department of the above change, you would not have satisfied criterion 801.211 and in turn you would not have been granted the permanent stage Partner (subclass 801) visa.
Section 107A of the Migration Act allows for cancellation of a current visa if there has been noncompliance in connection with a previous visa. Accordingly, your Resident Return (subclass 155) visa is liable for cancellation under section 109 of the Migration Act. It is not relevant whether you deliberately or inadvertently did not comply.’
The response to the NOICC

For clarity, from this point in the decision record [the applicant] will be referred to as the applicant
In a statement provided by the applicant’s migration agent in September 2019, the applicant stated that he understood that the Department intended to cancel the partner visa because of false information that he provided in his visa application. He understands that he did provide evidence that is inconsistent with other evidence subsequently provided and may be false. He cannot explain his actions or why he did this at the time but he knows that he was just stupid and made bad decisions to get to that point.
On 3 September 2019, the applicant’s migration agent stated the following: The applicant acknowledges that the information he provided to the Department may be incorrect and in breach of s.101 of the Act. He failed to provide updated information to the Department to rectify the incorrect information. He understands that his actions were not acceptable and appreciated the severity of the consequences that would follow. He did not intend to provide any information to the Department that was incorrect or false or misleading. He has no explanation for his actions and it was a bad decision on his part. There are strong and compelling grounds that his visa should not be cancelled.
The Tribunal finds that the applicant did not comply with s.104 of the Migration Act. Prior to the applicant being granted the Partner (Subclass 801) visa on 25 March 2014, his circumstances had changed. He was no longer in a genuine, ongoing relationship with his sponsor [Ms B] to the exclusion of all others. The applicant did not notify the Department of the change to his circumstances before the grant of the Partner (Subclass 801) visa.
For these reasons, the Tribunal finds that there was non-compliance with s.104 of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 and are discussed below.
The circumstances in which the non-compliance occurred
On 25 March 2014, the applicant was granted partner Subclass 801 visa, on the bases that he continued in a genuine partner relationship with [Ms B] to the exclusion of all others. In November 2013, the applicant provided a statutory declaration dated 22 October 2013, where he stated that he and [Ms B] had a mutual commitment to a shared life to the exclusion of all others and that their relationship was genuine and continuing.
As detailed in the delegate’s decision record the AUSTRAC report demonstrates that the applicant sent [Ms A] more than $6,800 from March 2013 to just before the time she arrived in Australia. The report also demonstrates that the applicant sent [Ms A]’s step-father [Mr D] more than $11,700 from July 2013 to May 2014. In a statutory declaration dated April 2019, the applicant stated the following: that due to his connection with [Education consultancy] Sydney he was making many money transfers because he was acting as a representative for ‘these students’. The applicant provided a statement from [Education consulancy] Sydney from by [Ms J], Acting Office Manager who stated the following: that the applicant is one of their potential supporters in regard to offshore and onshore student referrals. He referred clients for overseas study and provided support such as house sharing and airport pick up.
[In] August 2013, [Ms A] entered Australia. She declared her intended residential address as [Address 2]. On the Form 80, dated December 2015 she declared that from September 2013 her residential address was [Address 2] and her residential address from November 2014 was [Address 3].
On the applicant’s Form 80, dated 22 July 2013 he declared that from April 2013 until current his residential address was [Address 2]. In the applicant’s statutory declaration dated 22 October 2013, he declared his residential was [Address 2]. He provided electricity bills addressed to him at this address dated July 2013 and Australia post addressed to him and [Ms B] dated September and October 2013 at the same address. The applicant told the Tribunal that he moved to [Address 2] at the end of 2012. He said that he moved from [Address 2] in April 2014; after an argument with his mother-in-law, she threw him out of [Address 2] and he rented [Address 3].
In his statutory declaration dated January 2018, the applicant stated the following: that his relationship with [Ms B] was genuine. [Ms A] was his high school friend and after high school they lost contact. He couldn’t remember when [Ms A] made contact with him in Australia. [Ms A] needed information about student visas for Australia and he assisted by providing her with migration agents names and information about study. In a statutory declaration dated March 2019, the applicant stated that because he introduced [Ms A] to a school, they asked him to be the contact person in Australia. He provided his contact number as he had done for many other students. Other students he introduced to the school had used his address and contact number as their contact in Australia. The applicant stated that in August 2014, he and [Ms A] ‘ran into each’ other in [Suburb 1], NSW. At that time his marriage to [Ms B] had ended and in October 2014, [Ms A] moved in with him at [Address 3]. In [Ms A]’s statutory declaration dated 23 November 2015, she stated that she and the applicant met by chance in [Suburb 1]. They exchanged contact numbers and she told him that she arrived in Australia in August 2013 to study a Bachelor of [Subject] at [a] University Sydney. In an email dated 11 April 2018, the applicant’s migration agent stated that the applicant lived at [Address 2] from about 2012 until his relationship ceased with [Ms B] in April 2014. Others living in the house were [Ms B] and her mother. His mother-in-law leased one or two rooms to international students who came and went. He began living at [Address 3] at the end of April and lived there until March 2017. [Ms A] moved in with him In October 2014. They were tenants in the house.
In a third party statement dated 5 April 2018, [Ms F], stated the following: she is the owner of [Address 3]. She certifies that the applicant was renting her house from April 2014 until March 2017. The applicant provided [Ms F]’s NSW Land Registry Services – Title search record dated 9 April 2018.
In a third party statement dated 9 April 2018, [G] stated that the applicant lived at [Address 3] from around May 2014 to 2017 and [Ms A] started living there in October 2014.
On 29 January 2020, the applicant’s migration agent provided the Tribunal with the following information: the applicant acknowledges that he has provided information that may be incorrect and in breach of s.101 of the Act and he has failed to provide updated information to rectify the now incorrect information. However the applicant clarifies that this was a result of issues in his marriage to [Ms B] and a mistimed overlap with his relationship with [Ms A].
The applicant’s instructs that his relationship with [Ms B] was genuine and continuing to the time of its cessation. The information he provided the Department reflected their relationship at the time (October 2013/November 2013). Although his relationship with [Ms A] reflected that his relationship with [Ms B] was not mutually exclusive, this did not affect the genuine love he had for [Ms B]. Although he may have lived with [Ms A] at an earlier date, this was not strictly as a result or aspect of their relationship. There was an element of assistance provided by the applicant and his family to [Ms A]. This reflects that although there may have been an overlap and simultaneous relationships existing, the matter is not clearly defined as a misleading or contrived relationship with [Ms B] and the inception of a relationship with [Ms A].
The migration agent argues that while there may have been a lack of mutual exclusivity between the applicant and [Ms B]. This was not reflective of the entire relationship at the time. The lack of mutual exclusivity is not determinative or conclusive of the issue of whether the relationship was genuine as the matter of genuineness is not a binary one that turns on the issue of mutual exclusivity.
The migration agent submits that, although there may have been a failure to provide updated information as to the relationship, the relationship itself was not contrived or non-genuine and there was no intentionally misleading information or evidence provided to the Department in the relevant visa application.
The Tribunal put information to the applicant under s.359AA of the Act as follows:
‘Information before the Tribunal is that on 18 July 2019 a delegate of the Department of Home Affairs, Citizenship Program Delivery found the following:
You provided incorrect information regarding your relationship with [Ms B] as well as your relationship with [Ms A]. This was because it appeared you had been in a relationship with [Ms A] from as early as September 2013. Evidence demonstrated that you had made a number of money transfers to [Ms A] and her step-father in 2013/2014 and that [Ms A] declared that she lived at the same address as you since September 2013. This undermines your claims that you separated from [Ms B] a month after your permanent partner Subclass 801 visa was granted and up until that time continued in a partner relationship with her. It also undermines your claim that you happened to run into [Ms A] by chance in August 2014 and that she moved in with you in October 2014. The Department found that you facilitated a permanent migration pathway for yourself, with the intention of later sponsoring your true partner [Ms A].
It was more likely that you have been involved in chain migration in order to facilitate a migration pathway for yourself and others to Australia. You benefited from a migration pathway to which you were not legitimately entitled by making false and misleading statements. You made false and misleading statements to attempt to open a migration pathway to others to which they may have not been legitimately. You remained the sponsor for both partner and parent visa applications and this would not have been possible had your initial partner visa application been refused and the visa was granted on the basis that you had made fraudulent claims. You made a number of false and misleading statements in support of these applications to conceal relevant facts, or to attempt to explain away potential adverse information and discrepancies.
Your approval for Australian citizenship by conferral was cancelled.’
The applicant responded at the Tribunal hearing and stated the following:
·In 2011, he moved to [Address 4, Suburb 1] and lived there with [Ms B], his mother-in-law and some overseas students. Two or three months later they all moved to [Address 1]. One room was sublet to students and his mother also visited him here. At the end of 2012, they moved to [Address 2]. The applicant, [Ms B] and his mother-in-law lived in one section of the property. Another family lived in accommodation similar to a granny flat. He never lived in this section of the property. He lived at [Address 2] until a disagreement with his mother-in-law saw him kicked out in April 2014. He then moved to [Address 3].
·In 2013 and 2014 he worked as [an Occupation 1] and [an Occupation 2] and earned $400 to $500 weekly and he also repaired and sold [products]. [Ms B] worked as [an Occupation 3] earing $900 to $1000 weekly which she gave to her mother. When he asked his mother-in-law for money he was scolded because she considered that he was taking advantage of her daughter.
·In early 2013, [Ms A] knew was in Australia studying. She wrote to him and asked him a number of questions. He provided her with information about accommodation and other relevant details. He let [Ms A] know his address and the agency used it. He was surprised that [Ms A] used [Address 2] as her address. However it is common amongst Vietnamese student to use a steady address.
·He and [Ms A] never lived together at [Address 2]. When [Ms A] came to Australia he was living with [Ms B]. He and [Ms A] were too busy to meet but were communicating by internet. He didn’t meet with [Ms A] because of [Ms B]’s jealousy. However they met by chance meeting at a [Suburb 4] Market in 2014.
·The money he sent [Ms A] and her step-father was to purchase and send him used [products] which he then sold in Australia. He saved this money from [product] repairs and money his mother gave him when he came to Australia.
·[Ms A]’s visa application was completed by the applicant. As a result of his limited English language skills, he relied on a dictionary (to complete the application form). He responded to questions on the form providing information relating to him and didn’t give information relevant to [Ms A]. It was due to his carelessness that mistakes were made on the form and he didn’t check (the information) he put on the visa application form with [Ms A]. At that time, things were difficult [Ms A] had just given birth and underwent an operation. The child suffered from Asthma and Eczema and he was working two jobs. This is the reason he made mistakes. Other information was taken by the delegate to be incorrect because he was paying rent and buying a property.
The applicant and [Ms A] told the Tribunal that they didn’t live together prior to October 2014 and never lived together at [Address 2]. [Ms A] told the Tribunal that when she arrived in Australia ([in] August 2013) she was picked up by a friend and taken to a [Suburb 5] address. In September 2013, she met a girl at the temple and moved into shared accommodation with her in [Street 1]. In a statutory declaration dated March 2019 [Ms H] stated that [Ms A] lived with her from September 2013 to October 2014 at a [Street 2] address. Two tax invoices dated 3 and 6 June 2014 and an enrolment form dated 3 June 2014 addressed to [Ms A] at the same address have been provided. None of these addresses were declared by [Ms A] on the visa application form.
The applicant and [Ms A] claim that they ran into each other in August 2014 in [Suburb 1], NSW and that [Ms A] moved in with the applicant in October 2014, at [Address 3]. In a statement provided by the applicant’s migration agent in September 2019, the applicant stated that he understood that the Department intended to cancel the (applicant’s) partner visa because of false information that he provided in his visa application. The applicant understands that he did provide evidence that is inconsistent with other evidence subsequently provided and may be false. He cannot explain his actions or why he did this at the time but he knows that he was just stupid and made bad decisions to get to that point.
The Tribunal does not find the applicant to be credible. He previously provided vague and elusive evidence about when he and [Ms A] began living together. He stated that his relationship with [Ms B] was not mutually exclusive and he may have lived with [Ms A] at an earlier date and there may have been an overlap and simultaneous relationships but this was due to issues in his marriage to [Ms B] and a mistimed overlap with his relationship with [Ms A]. He provided inconsistent evidence about the money transfers to [Ms A] and her step-father.
The applicant’s evidence of beginning to live with [Ms A] from October 2014 is surprising when balanced against other evidence that clearly shows that, the applicant began sending money to [Ms A] in March 2013 and the money transactions finished just before her arrival in Australia. He also sent money to [Ms A]’s step-father from July 2013 to May 2014. The AUSTRAC report confirms that the applicant was the ordering customer and that he made these transactions both from the [Address 1] and [Address 2] addresses and that [Ms A] and her step-father were the recipients.
On 9 April 2019, in a statutory declaration the applicant initially disputed these money transactions taking place. He then argued that the money transfers he sent to [Ms A] and her step-father related to his involvement with the educational entity relating to prospective international students. Yet, at the Tribunal hearing he claimed that the money sent to [Ms A] and her step-father was for the purchases of used [products]. The applicant told the Tribunal that the purchases were made by cash and there were no official receipts and after seven or eight years he was unsure if he could get receipts. The statement from [Ms J] of [Education consultancy] Sydney does not indicate that the applicant’s involvement with them involved any money transfers. The Tribunal considers it reasonable to expect that financial exchanges from prospective international students would see the transferral of money into Australia and not out of Australia. The applicant’s argument about these money transactions is not accepted because his claims are not supported by any independent evidence. The Tribunal is of the view that the applicant is fabricating evidence. He initially challenged that the money transfers were sent and then provided two different explanations about what the money transfers were for.
The fact that the applicant sent money to [Ms A] from March 2013 undermines the claims made by the applicant and [Ms A]’s about their contact with each other. It undermines the applicant’s and [Ms A]’s evidence that the applicant continued in a partner relationship with [Ms B] until April 2014. The applicant declared living at [Address 2] from around 2012. [Ms A] declared on her arrival in Australia her intended residential address as [Address 2] and on the visa application form confirmed that she had lived at this address from September 2013. The applicant’s claim that he filled out the application form providing his information (instead of [Ms A]’s information) is not supported by the evidence because if that were the case, he would have declared that he had been living at [Address 2] from 2012 and not September 2013 as was stated. The applicant’s evidence about his family providing [Ms A] with assistance (other than the assistance with student visas) is vague and was not mentioned before January 2020, after the cancellation of the visa. The landlord’s letter dated 5 April 2018, which claimed that the applicant rented [Address 3] from April 2014 to March 2017, is inconsistent with the NSW Land Registry Services, title search which revealed that the applicant was the person paying the home loan for [Address 3]. It was also inconsistent with the information the applicant provided on the Form 40SP dated 29 September 2015, where he provided details that he lived in the dwelling and was paying a loan. This false and misleading information provided by the applicant again questions his credibility. While the statement from [Ms H] places [Ms A] as living from September 2013 to October 2014 at a different address to [Street], on balance the other evidence records her residential address as detailed above.
The Tribunal finds that during the processing of the partner visa application and at the time the permanent visa was granted, the applicant was no longer in an exclusive relationship with [Ms B] and that from August 2013 the applicant was in a relationship with [Ms A]. The Tribunal is of the view that the correct information is that the applicant and [Ms A]’s began living together from her arrival in Australia [in] August 2013. The Tribunal does not accept this explanation for the money transfers to [Ms A] and her step-father. The Tribunal does not accept the applicant’s explanation issues in his marriage to [Ms A] and a mistimed overlap with his relationship with [Ms A] as reason for not informing the Department about his change in circumstances.
The correct information

On 25 March 2014, the applicant was granted a permanent partner visa based on his spousal relationship with [Ms B]. However in August 2013, approximately seven months prior to the grant of the permanent partner visa, the applicant and [Ms A] began living together. At the time the applicant claimed to continue in an exclusive relationship with [Ms B] and at the time the permanent partner visa was granted the applicant and [Ms B]’s exclusive relationship had ceased. The applicant failed to inform the Department that his circumstances had changed and that he and [Ms A] were living together for approximately seven months prior to the grant of the permanent partner visa.
The content of a genuine document
This factor is not applicable.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted a permanent partner visa based on his partner relationship with [Ms B], who sponsored him for the visa. The applicant failed to inform the Department that his circumstances had changed and that he and [Ms A] were in a relationship since at least August 2013, approximately seven months before he was granted the permanent partner visa. The granting of the visa was based on the incorrect information that the applicant continued to be in an exclusive partner relationship with [Ms B]. Had the applicant informed the Department about his relationship with [Ms A], it is likely that the permanent partner visa application, based on his relationship with [Ms B], would have been refused.
The present circumstances of the visa holder
The applicant entered Australia in 2010. He has been in a partner relationship with [Ms A] since at least August 2013. He and [Ms A] now have a [child] who is [Age] years old. Their [Child] attends day-care and pre-school and has medical conditions including Bronchial Asthma and Eczema. The applicant operates a small business. On 13 August 2016, he registered a company and is the director of the company and liable for the business. In a statutory declaration dated March 2019, the applicant stated that he has lived in Australia since 2010 and can’t imagine living anywhere else. He had adapted to the Australian lifestyle and culture. Australia is his home and is close to him and he will continue to maintain that closeness and looks forward to contributing to the Australian community.
The applicant’s migration agent stated that working in Vietnam to earn a wage is not an option for the applicant as the wages in Vietnam are lower than the minimum living costs in Australia.
The applicant told the Tribunal that as a result of the Coronavirus he is unable to obtain supplies from China. He has been working as a driver taking people to and from the airport and also offers a [product] repair service. In 2015, he purchased a property for $567,000. Because of ongoing visa issues and legal services fees of $10,000 or $12,000 he sold the property for $630,000. After the bank discharged the loan he had $190,000 and now has $40,000 in the bank. He currently lives in an apartment in [Suburb 4] and pays $310 rent. In 2017/2018 the applicant’s and [Ms A]’s combined income was $45,000. [Ms A] combines taking care of the child, assisting the applicant in his business and working as a nail technician. He stated that his relocation to Vietnam would cause him and his family significant financial and personal hardship.
The Tribunal accepts the following: that the applicant may have adapted to the Australian lifestyle. The child has the medical conditions as claimed. The cancellation of the applicant’s visa may see him and Ms Truong and their child relocate to Vietnam and that the salary and living costs may be lower than in Australia.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant responded to the NOICC and admitted that he had provided incorrect information to the Department.
Any other instances of non-compliance by the visa holder known to the Minister
There is no evidence before the Tribunal of any other instances of non-compliance.
The time that has elapsed since the non-compliance
The non-compliance occurred during the processing and grant of the permanent partner visa on 25 March 2014. More than five years have elapsed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information to suggest any other breaches of law since the non-compliance.
Any contribution made by the visa holder to the community.
The applicant operates a small business. In his statutory declaration of January 2018, he stated the following: he fixes [products] and sells [related products] and has been paying tax since 2016. He hoped to enrol in a Diploma course relating to his business. He had been volunteering at various temples in [Suburb 4]. He helped out with fund raising events by serving food, washing dishes and organising tables and chairs. The Tribunal considers it admirable that the applicant has been paying taxes since 2016 and that he volunteers at various temples.
Whether there are persons in Australia whose visas would, or may, be cancelled consequentially
In his statement provided to the Tribunal in September 2019, the applicant stated the following: he is in a relationship with [Ms A] whom he is sponsoring for a partner visa.
[In] August 2013, [Ms A] entered Australia as the holder of a student visa Subclass 573. The visa was granted on the basis that she undertake studies in Australia as an international student. On 28 January 2016, the visa was cancelled under s.116(1)(b) of the Act because [Ms A] did not maintain enrolment in a registered course of study and so did not meet the Condition 8202. [Ms A] applied for a partner visa on the basis of being in a partner relationship with the applicant, her sponsor. On 19 January 2017, the partner Subclass 820 visa was granted. Information before the Tribunal is that [Ms A] is currently in Australia. The Tribunal accepts that the result of the cancellation of the applicant’s visa is that [Ms A]’s visa will be subject to consequential cancellation.
The applicant told the Tribunal that his [child] has obtained Australian citizenship and that the application for the contributory parent visas is ongoing.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration. Australia is bound by the principles of the Convention on the Rights of the Child (CROC). Article 3 states that in all actions that concern or affect a child, the best interests of the child shall be a primary consideration. Article 7 and 9 focus on the importance of preserving the family unit and not separating children from their parents.
In his statement provided to the Tribunal in September 2019, the applicant stated the following: that he lives with [Ms A] and his [child] and they share the responsibilities of caring for their [child]’s health and wellbeing. Their [child] is [Age] years old and has asthma and eczema and needs a lot of care from both parents. The child wakes up five to seven times a night crying. [She/He] attends day care three days a week from 8:00am to 5:00pm. [Ms A] and the child depend on him for their livelihood. The child is an Australian citizen and has a right to remain in Australia and enjoy all the benefits of the country. It is not an option for the child to go to Vietnam when [s/he] has spent [number] years growing up in Australia.
A letter dated January 2019, from a general practitioner stated the child suffers from Bronchial Asthma and Eczema. He feels that it is in the child’s best interest that [s/he] remain in Australia with [her/his] parents because the Australian health system can offer [her/him] benefits that the Vietnamese health system cannot. The applicant argues that the child is entitled to be brought up in Australia to obtain the education, health and other benefits [s/he] can enjoy in Australia, which are not available to [her/him] in Vietnam. In 2020, the practitioner stated the following: the child suffers vitamin deficiency, bronchial asthma, dermatitis and sometimes respiratory tract infection. Recently [s/he] has suffered nightmares brought on after [s/he] and [her/his] parents were caught in their car on 10 February 2020 in the floods. A letter from a long day care and preschool entity dated 14 February 2020 gives information about the good care the child’s parents provide [her/him]. It also stated that the entity would like to continue to educate the child.
The applicant’s migration agent stated that child is an Australian citizen the applicant has been deeply involved in the child’s upbringing and stability and family structure from the time [s/he] was born. He is a loving parent and wants to continue in that role. There can be no doubt that if the child is separated from the applicant it would have an enormous negative impact on the child’s wellbeing and development as no other people can fulfil the role of the applicant. Based on the child’s health conditions it is imperative that the applicant remain in Australia to assist in the care of the child’s health issues. There is economic disparity and unequal access to the appropriate medical treatment present in Vietnam. It is not beneficial or prudent to take a young child who is an Australian citizen and ought to be afforded his full rights. While the applicant understands that his mistakes may have serious consequences, these consequences should not affect and innocent Australian child. Potentially the child could be separated from [her/his] parents or [her/his] home country for many years until he reaches sufficient maturity, particularly given the three year ban on the applicant’s options of applying for another visa. The cancellation of the applicant’s visa and the ongoing impact on the child far out weight the reasons for cancelling the visa.
The applicant told the Tribunal the following: that he and [Ms A] and the child travel to Vietnam regularly. When they are there together they live with his mother. When [Ms A] and the child are there they live with [Ms A]’s mother. The applicant and [Ms A] were concerned about their child living in Vietnam. They described [her/his] difficulty in breathing when he is there and on one occasion waiting for a day for medical attention. He also suffers from asthma as did his grandfather. He has lived in Australia for ten years and does not know how he will make a living in Vietnam and the education and health systems in Vietnam are only half as good as those in Australia.
The applicant’s child was born in [Month, Year]. [She/He] was granted Australian citizenship [in] February 2019 when the applicant was the holder of the Resident Return Subclass 155 visa. As a result the child was granted Australian citizenship. The Tribunal is mindful that having an Australian citizen child is a significant factor. Conversely had the applicant notified the Department of the true nature of his relationship with [Ms B], his sponsor, the Subclass 801 visa would not have been granted and he would not have been granted the Resident Return Subclass 155 visa. Had these visas not been granted, the child would not have been granted Australian citizenship.
In this case, there is no evidence before the Tribunal that the applicant is an Australian permanent resident or an Australian citizen or that he is the holder of a substantive visa. The information before the Tribunal is that the applicant and [Ms A] are citizens of Vietnam. As such they have the capacity to return to Vietnam with their child and live there as a family. A Department of Foreign Affairs and Trade document dated December 2019 stated the following:
‘Vietnam’s economy stagnated during the first decade of reunification, with central planning predominating.’[2]
‘The World Bank reported in 2018 that Vietnam’s employment rates were high and unemployment rates were very low by global standards. Labour force participation rates are also high for both men and women, who participate in the labour force in almost equal numbers. Job quality is low, however, with only 10 per cent of jobs in professional or managerial occupations. The top ten occupations, which employ two-thirds of the labour force, are very low skilled, including agricultural, forestry and fishery labourers. Around three-quarters of jobs in Vietnam are in family farming (39 per cent), household enterprises (20 per cent), or employment without a contract (17 per cent). These occupations are characterised by low pay and limited worker protections. Ethnic minorities, women, and unskilled workers make up the majority of workers in these jobs.
There are four regional minimum wage standards, designed to reflect the cost of living in each area. Region I (including Hanoi and HCMC) has the highest minimum wage, while region IV (for rural areas) has the lowest. The 2018 wage levels were 6.5 per cent higher than in 2017, which increased the minimum monthly wage for region I to VND 3.98 million (approximately AUD 241) and region IV to VND 2.76 million (approximately AUD 167). Registration with the Vietnamese Social Insurance Agency is mandatory for formal workers in the private sector, and informal workers can make voluntary contributions. Social insurance coverage is low nationwide (around 23 per cent in 2015), and only a very small percentage of the workforce are likely to receive a retirement pension. ‘
‘According to the World Health Organization, the life expectancy in Vietnam was 72 years for males and 81 years for females in 2016. The population is rapidly ageing, although 70 per cent of the population is under 35 years of age. Health outcomes have generally improved in recent decades in line with Vietnam’s considerable economic growth. The transition from a centrally controlled to a market economy, however, led to a reduction in state expenditure on healthcare and the introduction of user fees for both public health facilities and private practice. This has resulted in growing disparities in health outcomes between higher and lower socioeconomic groups, urban and rural areas, and the majority Kinh people and ethnic minority groups. For example, the maternal mortality rate in 2016 was 58 deaths per 100,000 live births (compared to 233 deaths per 100,000 live births in the 1990s), yet the UN Population Fund (UNFPA) reports that rates are higher in rural areas and among ethnic minorities. Similarly, the UN Children’s Fund (UNICEF) has reported that the infant mortality rate (17 deaths per 1,000 live births in 2017) is higher in poorer central and northern regions of the country.
A social health insurance scheme was introduced in Vietnam in 1992, which has contributed to improved health indicators through increased access to healthcare services for beneficiaries, particularly the poor and vulnerable. Participation in the scheme is compulsory for some groups (such as formal sector workers, who are fully subsidised by the social security agency and/or the government) and voluntary for others (such as informal workers, who are required to make full or partial premium payments). In 2013, close to 70 per cent of the total population was covered by social health insurance. Of these participants, most came from compulsory groups, while just over 21 per cent of participants were from voluntary groups. Enrolment has remained low among persons whose participation is voluntary. As a result, households face financial risks of high out-of-pocket payments for health care.’[3]
[2] >
The Tribunal accepts that the child suffers from the health conditions as claimed. The Tribunal notes that the levels of employment, living costs, education and health care may not be as comparable as that in Australia. The Tribunal accepts that the cancellation of the applicant’s visa may not be in the best interest of the child as far as these matters are concerned. However should the applicant and [Ms A] depart Australia, the Tribunal is of the view that the best interest of the child is that [s/he] lives with [her/his] parents in a family environment and be nurtured by [her/his] parents, who are the applicant and [Ms A].
Whether there are mandatory legal consequences to a cancellation decision
A cancellation of the visa holder’s visa may see the visa holder become an unlawful non-citizen. He could be detained and removed from Australia. He could also be limited in the visas he could apply for in Australia or prevented from being granted a temporary visa for a specific time. These consequences are a result of the applicant not advising the Department of his change in circumstances which lead to the cancellation of his visa. The Tribunal accepts that the cancellation of the applicant’s visa may present him and [Ms A] and their child with difficulties.
Other considerations
Other third party statements are dated October 2013. [Ms K] stated that she had known [Ms B] and the applicant for two years. She visited the applicant’s place and believes their relationship to be genuine and that they are happy and will have a child the following year. [Ms L] stated that she had known [Ms B] and the applicant for three years. She stated that their relationship will be good in the future and that they had plans to have children and a house in the future. The Tribunal is not satisfied that these statements outweigh the significant concerns the Tribunal holds about the applicant’s credibility.
This decision record is a synopsis of the evidence before the Tribunal. The Tribunal has considered the evidence individually and as a whole. The Tribunal finds that, the requirement that the visa holder departs Australia and the challenges and difficulties that may be presented to him and to [Ms A] and their child do not outweigh the significant change in his circumstances during the processing and grant of the Subclass 801 partner visa. It has weighed the applicant’s circumstances against the adverse findings that the Tribunal has made above regarding him not advising of his change in circumstances. The Tribunal has formed the view that the breach is significant and central to the applicant’s ability to be granted the Partner visa. Essentially, if the correct information was known, the Tribunal does not consider that the applicant would have been granted the visa. In these circumstances, the Tribunal has determined that the adverse circumstances outweigh the circumstances favouring the applicant.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa holder’s visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Helena Claringbold
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.
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 2107

4 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Remedies

Natural Justice