1927139 (Migration)

This matter concerned an application for review of a decision to cancel the Partner (Temporary) (Class UK) visa of a Vietnamese national. The applicant's visa was cancelled under section 140(2) of the *Migration Act 1958* (Cth) as a consequence of the cancellation of her husband's visa. The applicant had entered Australia in 2013 and was granted a partner visa in 2017, sponsoring her stay with her husband, who was also a Vietnamese national. The couple had a young Australian citizen child with significant medical conditions. The cancellation was based on the applicant providing false or misleading information about her relationship and her husband's previous relationship.

The Tribunal was required to determine whether the ground for cancellation was made out and, if so, whether the visa should be cancelled, exercising its discretion. The legal issue revolved around balancing the consequences of cancellation, including potential hardship to the applicant and her child, against the grounds for cancellation, particularly in light of the child's Australian citizenship, medical needs, and the socio-economic conditions in Vietnam, exacerbated by the COVID-19 pandemic. The Tribunal also considered Australia's obligations under international agreements, specifically the Convention on the Rights of the Child, which mandates that the best interests of the child be a primary consideration.

The Tribunal found that the ground for cancellation under s 140(2) of the Act was established due to the cancellation of the applicant's husband's visa. While acknowledging the significant hardship the applicant and her child might face, particularly concerning the child's medical conditions and the potential difficulties of returning to Vietnam during the pandemic, the Tribunal ultimately affirmed the decision to cancel the visa. The Tribunal noted that both the applicant and her husband were Vietnamese nationals and thus had the capacity to return to Vietnam. Despite the child's Australian citizenship and medical needs, the Tribunal concluded that the best interests of the child were to remain with both parents in a family environment, which could be achieved in Vietnam. The Tribunal also considered the socio-economic conditions in Vietnam, referencing World Bank reports on employment and wages, and health outcomes, but did not find that these circumstances would lead to a denial of basic services. The Tribunal also stated that it was bound by President's Directions to conduct reviews efficiently and could not delay a decision indefinitely due to the pandemic.

The Tribunal affirmed the decision to cancel the applicant's Partner (Temporary) (Class UK) visa. The applicant was advised that the cancellation could result in her becoming an unlawful non-citizen, potentially leading to detention and removal from Australia, but that she could avoid these difficulties by departing Australia voluntarily.