1927139 (Migration)

[2020] AATA 2106

1927139 (Migration) [2020] AATA 2106 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1927139

MEMBER:Helena Claringbold

DATE:17 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Partner (Temporary) (Class UK) visa.

Statement made on 17 April 2020 at 9:42am

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – visa cancelled as consequence of cancellation of husband’s visa – discretion to cancel visa – young Australian citizen child with medical conditions – false or misleading information about relationship and husband’s previous relationship – country information – socio-economic conditions in Vietnam – return during coronavirus pandemic – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 140

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

1. On 24 September 2019, a delegate of the Minister for Immigration and Home Affairs cancelled [the applicant’s] Subclass 820 Partner (Temporary) (Class UK) visa under s.140(2) of the Migration Act 1958 (the Act).

2. 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.

3. On 17 February 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [Mr 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 her registered migration agent.

4. 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

5. 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

6. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Cancellation Power

7. Section 140(2) of the Migration Act 1958 (the Act) allows the Minister to cancel a visa, if that person holds a visa, only because another person holds a visa and that visa has been cancelled.

8. Examples of persons whose visas may be cancelled under s.140(2) include visa holders who were sponsored by a person whose visa is cancelled (for example, Prospective Marriage, Partner and other family visa holders) and visa holders who satisfy a criterion that involves another visa holder.

   Is there a ground for cancellation?

9. [The applicant] is a national of Vietnam. On 19 January 2017, [the applicant] was granted a Partner (Temporary) (Class UK) visa. The application for the visa was sponsored by [Mr A], the applicant’s spouse. On 24 September 2019, [Mr A]’s visa was cancelled. The Tribunal is satisfied that there is a ground for cancellation under s.140(2) of the Act.

   What is the purpose of the visa holder’s travel to and stay in Australia?

10. [The applicant] entered Australia [in] August 2013. She arrived in Australia as the holder of a Subclass 573 student visa and claimed she intended to study. On 8 December 2015, [the applicant] lodged combined Partner Subclass 820/801 visa applications with the Department. The applications were sponsored by [Mr A], her sponsor. On 19 January 2017, [the applicant] was granted a Subclass 820 partner visa. [The applicant] and [Mr A] have a child together, who was born on [Date]. The parties live in Australia. The purpose of [the applicant]’s stay in Australia is to be with [Mr A] and her child.

    What is the degree of hardship that may be caused to the visa holder and any family members?

11. [The applicant] entered Australia in August 2013 and began living with [Mr A]. She has lived in Australia for approximately six and a half years. She and [Mr A] have a child who was born in Australia and is an Australian citizen. The child is enrolled in day care and pre-school.  [She/He] has medical conditions including [specified] . [Mr A] runs a small business. As a result of the Coronavirus he is unable to obtain supplies from China. He has been working as [an Occupation 1] [doing a job task] and also offers a [service]. In 2015, he purchased a property for $[Amount 1].  Because of ongoing visa issues and legal services fees of $[Amount 2] or $[Amount 3] he sold the property for $[Amount 4].  After the bank discharged the loan, he had $[Amount 5] and now has $[Amount 6] in the bank. He currently lives in an apartment in [Suburb] and pays $[Amount 7] rent per week. In 2017/2018 the sponsor’s and [the applicant]’s combined income was $[Amount 8].  [The applicant] combines taking care of the child, assisting the sponsor in his business and working as [an Occupation 2]. [The applicant] told the Tribunal that she wanted to continue living in Australia with [Mr A] and their child and to build their lives together.

12. On 30 March 2020, the applicant’s migration agent stated the following: as the sponsor will be forced to separate from the parties child will be deprived of the love, care and support of one of [her/his] parents as [s/he] continues to grow and mature during [her/his] formative years.  The separation will have continuing effects on the applicant’s [child].

13. The Tribunal understands that because of her history in Australia, [the applicant] may have established ties with the Australian community and that she may want to remain in Australia. Should her visa be cancelled she would no longer have permission to live or work in Australia and may experience emotional distress and anxiety and personal hardship for herself and her [child]. It also understands that there may be consequences for the applicant’s [child]. The Tribunal feels that the applicant’s [child] need not be deprived of love, care and support of either of [her/his] parents.  It is of the view that [the applicant] can continue to build her life with [Mr A] and her child in Vietnam, where she and [Mr A] are citizens.

    What were the circumstances in which the ground for visa cancellation occurred?

14. The grounds for cancellation arose when [Mr A], the sponsor’s visa was cancelled under s.109 of the Act. As [Mr A]’s visa was cancelled, he no longer holds the visa that permitted the grant of [the applicant]’s partner visa.

    What is/was the visa holder’s past and present behaviour towards the department (for example, whether she has been truthful in statements or applications made to the department or has previously complied with visa conditions).

15. [The applicant]’s student visa was cancelled as she didn’t comply with condition 8202.

16. There is information to suggest that [the applicant] provided false and misleading information about her relationship with [Mr A]. [The applicant] provided a statutory declaration dated 23 November 2015 stating the following: that she and [Mr A] were friends since high school.  They met again by chance in August 2014 at Bankstown after [the applicant] had arrived in Australia to study.  [The applicant] and [Mr A] moved in together in October 2014. They married [in] August 2015 and they have a child together born on [Date].

17. Based on this information alongside satisfying other relevant criteria, on 19 January 2017 [the applicant] was granted a Partner (Subclass 820) visa.

18. This evidence is surprising when balanced against the other evidence that clearly shows that, [Mr A] began sending money to [the applicant] in March 2013 and the money transactions finished just before her arrival in Australia. From July 2013 to May 2014, he also sent money to [the applicant]’s stepfather. 

19. The fact that [Mr A] sent money to [the applicant] from March 2013, prior to her arrival in Australia, undermines the claims made by [the applicant] about her contact with [Mr A]. It undermines her claim that [Mr A] continued in a partner relationship with his ex-partner, [Ms B] until April 2014. [Mr A] declared living at [Address]  from around 2012.  [The applicant] declared living at [Address] from her arrival in Australia in August 2013 and onwards. The Tribunal is of the view that [the applicant] and [Mr A] were in a relationship from at least August 2013.

20. The Tribunal finds [the applicant] has not been truthful in statements and applications made to the department.

    Legal consequences of a decision to cancel the visa

21. A cancellation of the visa holder’s visa may see the visa holder become an unlawful non- citizen. She could be detained and removed from Australia. These consequences are a result of [Mr A]’s visa being cancelled. The Tribunal is of the view that [the applicant] can avoid many of these difficulties by departing Australia on a voluntary basis.

    Does Australia have obligations under relevant international agreements that would be breached as a result of the visa cancellation?

22. 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. Articles 7 and 9 focus on the importance of preserving the family unit, not separating children from their parents.

23. In September 2019, [Mr A] the following: that he lives with [the applicant] and his [child] and they share the responsibilities of caring for their [child]’s health and wellbeing. Their [child] is [Age] years old and suffering from [Medical conditions] 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. [The applicant] 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.

24. In letters dated January 2019 and August 2019, a general practitioner stated the following: the applicant’s child suffers from [Medical conditions]. It is in the child’s best interest that [s/he] remains in Australia with [her/his] parents because the Australian health system can offer [her/him] benefits that the Vietnamese health system cannot.  The child needs the ongoing support of [her/his] parents. In 2020, the practitioner stated the following: the child suffers [Medical conditions] and sometimes [Medical condition]. Recently [/she] has suffered nightmares brought on after [s/he] and [her/his] parents were caught in their car [in] February 2020 in the floods. A letter from a long day care & preschool entity dated [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 and the sponsor argue 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.

25. The applicant’s migration agent stated that the child has significant health conditions that need constant care and management. It is in the child’s best interest that [s/he] remains living in Australia with both [her/his] parents.  In a statement relating to [Mr A]s review he claimed that 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 [her/his] full rights.

26. [The applicant]’s child was born in [Month, Year].  [She/He] was granted Australian citizenship on [Date] when [Mr A] was the holder of the Resident Return Subclass 155 visa. As a result, the child was granted Australian citizenship. The Tribunal is certainly mindful that having an Australian citizen child is a significant factor. Conversely had [Mr A] 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.

27. In this case, there is no evidence before the Tribunal that [the applicant] or [the applicant] are Australian permanent residents or Australian citizens or that they are the holders of substantive visas. The information before the Tribunal is that [the applicant] and [Mr A] are citizens of Vietnam.  As such they have the capacity to return to Vietnam with their child and live there as a family.  While the Tribunal understands that the following information related to a time before the COVID-19 pandemic, it considers it to continue to be relevant. 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.’[1]

    ‘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.’[2]

    [1] >

    On 30 March 2020, the applicant’s migration agent stated the following: considering that the sponsor has lost his right to remain in Australia and will be forced to separate from the family, the applicant’s visa should not be cancelled. The applicant has a young child who is an Australian citizen. Without the sponsor in Australia [s/he] has and will be deprived of the love, care and support of one of [her/his] parents as [s/he] continues to grow and mature during [her/his] formative years.  The separation will have continuing effects on the applicant’s [child]. As the sponsor has suffered the consequences of his past mistakes leading to the cancellation of his visa, the applicant and her [child] should not be further punished by their forced removal from Australia.

28. The Tribunal accepts that the child has the health conditions as claimed. The Tribunal realises 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 sponsor 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 cared for loved and nurtured by [her/his] parents, who are sponsor and [the applicant].

    Other considerations

29. On 5 March 2020, the Tribunal wrote to [the applicant] and invited her to comment on or respond to information relating to the application for review made by her in respect of a decision to cancel her Subclass 820 Partner (Temporary) (class UK) visa under s.140(2) of the Migration Act 1958 (the Act).

30. She was advised that in conducting the review, the Tribunal is required by the Migration Act 1958 to invite her to comment on or respond to certain information which the Tribunal would consider, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review. She was advised that the Tribunal had not made up its mind about the information and that the particulars of the information are as follows:

    ‘The Tribunal has affirmed the decision to cancel [Mr A]’s Subclass (155) (Five Year Resident Return) visa. Therefore, the cancellation of his visa is upheld.

    This information is relevant to the review because the ground for the cancellation of [the applicant]’s visa is made out. The information would lead the Tribunal to affirm the decision to cancel [the applicant]’s Subclass 820.’

1. The applicant was invited to comment on or respond to the information by 19 March 2020. She was advised that if she could not provide her written response by 19 March 2020, she could ask for an extension of time.  She was told that an extension of time request must be received by the Tribunal before 19 March 2020, with reasons given for the request.

2. On 20 March 2020 at 5:38PM, the applicant’s migration agent emailed the Tribunal and requested an extension of time to comment on or respond on the information. The migration agent stated that he recently returned from overseas and was required to self-isolate and quarantine. The Tribunal allowed additional time for information to be provided.

3. On 30 March 2020, the applicant’s migration agent stated the following: they understand that the grounds for cancellation are made out. They submit that the Tribunal member retains discretion not to cancel the applicant’s visa. In the midst of the current COVID-19 pandemic, it would be prudent and fair on the applicant and most importantly her [child] to defer a decision on this matter until such a time that it would be safe and appropriate for the family to travel and return to Vietnam. Regard be given to the significant effects that the current COVID-19 pandemic health crises would have on the applicant’s [child]’s health and [Medical] condition which was noted by [her/his] treating physician as being severe enough to have [her/him] remain in Australia.

4. The Tribunal accepts that it is likely that the applicant and her [child] may experience some difficulty in returning to Vietnam as a result of the COVID-19 pandemic. The Tribunal notes, however, that the applicant and her [child] have travelled to Vietnam regularly and continue to have family in Vietnam. It encourages the applicant and her family to practice safe health practices, including social distancing requirements, to avoid any health challenges. It also suggests that the applicant consult with her health professionals and seek their advice on additional strategies that can be employed to safeguard her family. Having regard to the applicant’s personal circumstances, the Tribunal does not accept that there is a real chance that the applicant or her [child] would be denied basic services in Vietnam.

5. The Tribunal accepts that there is a level of uncertainty arising from the current COVID-19 pandemic and that the applicant may not be able to leave Australia to return home due to travel restrictions and/or the availability of means of travel.  In such circumstances there is the likelihood that she may be detained pending arrangements being made for her removal. 

6. The Tribunal notes that the Department of Home Affairs, Status Resolution Service (SRS)[3] may be able to provide the applicant with assistance regarding her status in Australia. matter. It also encourages the visa applicant to contact the Vietnamese Embassy to seek their advice and assistance.[4]

   [3] >

   Whilst the Tribunal is sympathetic to the circumstances of the applicant and her [child], it must also be bound by the President’s Direction ‘Conducing Migration and Refugee Reviews’.  The Tribunal has a responsibility to conduct reviews that are ‘accessible, fair, just, economical, quick and proportionate’.  For these reasons the Tribunal cannot delay its decision for an unknown length of time and has determined to proceed with its decision.

   
   
   

7. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal has decided that there are grounds for the cancellation.  Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa holder’s visa should be cancelled.

   DECISION

8. The Tribunal affirms the decision to cancel the applicant’s Partner (Temporary) (Class UK) visa.

   Helena Claringbold
   Member