2207853 (Migration) - [2022] AATA 3637

2207853 (Migration) [2022] AATA 3637 (14 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2207853

MEMBER:Kira Raif
DATE:14 September 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 14 September 2022 at 12:36pm
CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – bogus document – non-biological parent on child’s birth certificate – birth record registration in Vietnam – parental rights and responsibilities – financial support – certificate issued on the basis of a false or misleading statement – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 101 – 105, 107, 109
Migration Regulations 1994
CASES
Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Vietnam, born in [year]. She was granted the Provisional Partner visa in May 2018. In February 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 103 of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, [Partner A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
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.
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 103 of the Act.
Primary decision
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she made the application for the Partner visa on 28 June 2017. In April 2018 the applicant submitted a Vietnamese birth certificate for her daughter [named], born in [year]. The certificate named the applicant as the child’s mother and the applicant’s spouse [Partner A] as the child’s father. The applicant was granted the temporary Partner visa on 17 May 2018.
The primary decision record indicates that in February 2018 the applicant’s sponsor lodged an application for registration of citizenship by descent for [the applicant’s daughter]. He claimed to be the father of the child and submitted the same birth certificate which was included in the applicant’s application for the Partner visa. He was requested to undertake a DNA test but withdrew the application and advised that he was not, in fact, the biological father of the child.
In June 2018 the applicant’s sponsor sponsored the child for the Subclass 445 Dependent Child visa. He submitted the same birth certificate for the child as was included in the applicant’s Partner visa application. He also submitted consent for the child’s migration for [Mr A], who claimed to be the biological father of the child. (It appears that he subsequently informed the Department that he was not the biological father of the child.) The application also included statements indicating that the applicant’s sponsor did not know he was not the biological father of the child when the birth certificate was issued. It is noted that the Dependent Child visa application was refused for failure to meet PIC 4020, because the birth certificate was found to be a bogus document, and this Tribunal subsequently also found that the birth certificate was a bogus document.
The delegate found that the child’s birth certificate is a bogus document within the meaning of s. 5(1) of the Act and concluded that the applicant did not comply with s. 103 of the Act.
Applicant’s evidence
The applicant stated in her response to the NOICC that she made a ‘mistake’ when she realised she was pregnant with [Mr A’s] baby and explained the affair to her husband, who forgave her and decided to raise the child as his own. The applicant stated that when she filled out the birth certificate form, she claimed [Partner A] as the father, which was her fault but unintentional. The applicant provided a number of documents concerning her relationship with [Partner A].
In oral evidence, the applicant told the Tribunal that both she and her husband knew before the child’s birth that he was not the biological father of the child but he wanted to be listed on the child’s birth certificate. (This contradicts [Partner A’s] evidence to the previous Tribunal that he did not know he was not the biological father of the child.) The applicant states that her husband felt that by listing his name on the birth certificate, he thought he would protect her from people talking. The applicant states that when they obtained the child’s birth certificate, the authorities in Vietnam asked for the name of the father, not the biological father.
[Partner A] also told the Tribunal that he found out about the child’s parentage during the applicant’s pregnancy but he did not want the child to grow up without a father so he forgave his wife and wanted to put his name on the child’s birth certificate. [Partner A] told the Tribunal that he treats the daughter as ‘his own flesh and blood’, worries about her and sends money to the child’s grandmother to support the child. [Partner A] stated that he has always considered himself to be the father of the child and he did not realise he was breaching the law.
The applicant states that she met the biological father of her daughter at a party, she was too intoxicated and ‘things got out of control’. The applicant states that the father knows about the child’s existence but does not admit it and has never had any involvement with the child and they had never met.
The applicant states that she and her husband have daily interactions with her daughter on Facetime and they visited her prior to Covid. The applicant states that her daughter does not know any other father and her husband cares about their daughter and makes decisions about her daily life and provides financial support to the child. That is also the evidence of [Partner A].
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether the child’s birth certificate is a bogus document within the meaning of s. 5 of the Act. There is no suggestion that the applicant had provided any other document that could be considered a bogus document.
The reason the document had been found to be a bogus document is because it lists the applicant’s current partner [Partner A] as the child’s father and he is not the biological father of the child. It is not in dispute that [Partner A] is not the biological father of the child. However, that is not sufficient, in the Tribunal’s view, to establish that the birth certificate was issued on the basis of a false or misleading statement and that it is a bogus document.
The Tribunal has had regard to the advice from the local post relating to the birth record registration in Vietnam, which is contained in the communication dated 1 March 2022 on the Departmental file. It confirms that sometimes a father’s name listed on the birth certificate is not the name of the biological father of the child and, importantly, that in this case the birth certificate was issued according to law because the child was born during the marriage period between the mother and the sponsor [Partner A]. It is also noted that even when [Partner A] knew he was not the biological father of the child, it was not compulsory for him to go through the court process and identify himself as not the father of the child and to have his name removed from the birth certificate if he wanted to maintain the parental rights and responsibilities in relation to the child and to be the legal father of the child.
That evidence indicates that the birth certificate does not necessary record biological parents but, rather, parents who have parental responsibilities in relation to a child. [Partner A] would have been legally recognised as the child’s father because the child was born during his relationship with the child’s mother and there was no obligation upon any party to inform the Vietnamese issuing office that [Partner A] was not the biological father of the child. In this case, there is nothing to indicate [Partner A] is unwilling to maintain the parental responsibilities in relation to the child. The evidence before the Tribunal is that [Partner A] had accepted parental responsibilities in relation to the child since the child’s birth and she does not know any other father. The Tribunal accepts that evidence. In these circumstances, it cannot be said that the child’s birth certificate was obtained on the basis of a false or misleading statement. Rather, that birth certificate appears to have been issued in accordance with the Vietnamese laws.
The Tribunal is also mindful that it is consistent with the Australian laws. A similar issue was considered by the Full Federal court in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130 where the Court confirmed that it is not necessary contrary to the Australian law to record a non-biological parent on a child’s birth certificate and the submission of such a document does not necessarily constitute non-compliance with the Act.
For the above reasons, the Tribunal does not consider that the child’s birth certificate was issued on the basis of a false or misleading statement and it is not a bogus document for that reason. There is nothing to suggest the child’s birth certificate was not issued in relation to the person named in the birth certificate. There is no suggestion it is otherwise counterfeit or had been altered by a person without authority and the Departmental file indicates that around March 2022 it was confirmed that the birth certificate was genuinely issued by the relevant authority. On the evidence before it, the Tribunal has formed the view that the child’s birth certificate is not a bogus document.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
Conclusion
As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Kira Raif
Senior Member