2208501 (Migration)

[2024] AATA 4338

2208501 (Migration) [2024] AATA 4338 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mark Northam, Northam Lawyers

CASE NUMBER:  2208501

HOME AFFAIRS REFERENCE(S):          BCC2021/2246628

MEMBER:Michael Ison

DATE:9 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 09 October 2024 at 6:02pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – relevant changes in circumstances not notified to department – relationship ceased, new relationship and children while application in progress – claim of translation error by non-certified translator – casual affair rather than relationship or cohabitation – travel to care for father rather than visit partner – affair/relationship ceased, with some contact through children – some relationship with children, financial support and child visa applications – some downplaying of significance of affair/relationship – grounds not made out on evidence – present circumstances including new relationship and young adult step-children not relevant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 104(1), 107, 109(1), 359A, 375A
Migration Regulations 1994 (Cth), r 1.09A

CASE
Cao v MIAC [2007] FMCA 225             

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is [the applicant], who is a [Age]-year-old Vietnamese national.  [The applicant] is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.

3. On 17 October 2003 the applicant applied for an offshore Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa on the basis that the applicant was the fiancé of [Ms A], whom the applicant claims to have first met on 28 September 2002 in Saigon when [Ms A] was [Age] years of age, and the applicant was [Age] years of age. [Ms A] was born in Vietnam but had Australian citizenship conferred on her [in] September 1987.

4. [Ms A] had been married once previously on [Date] to [Mr B] and that marriage produced one child, [Miss C] born on [Date]. [Ms A] and [Mr B] divorced on [Date].

5. The Subclass 300 visa was granted to the applicant on 10 June 2004. The applicant first arrived in Australia [in] July 2004 as the holder of the Subclass 300 visa, which was valid to 10 March 2005.

6. On [Date] the applicant and [Ms A] were married in Melbourne. On 27 October 2004 the applicant applied for an onshore Combined Partner (Class UK) (Subclass 820) Provisional Partner visa and (Class BS) (Subclass 801) Permanent Partner visa on the basis he was the spouse of [Ms A].

7. On 20 April 2005 the applicant was granted a Subclass 820 Partner Provisional visa that was valid to 6 August 2007 when he was granted a Subclass 801 Partner Permanent visa.

8. On 2 August 2012 the applicant applied for his first onshore Five-Year Resident Return (Class BB) (Subclass 155) visa as a permanent resident of Australia, which was granted the same day and was valid to 16 October 2017.

9. The applicant was granted five subsequent onshore Subclass 155 visas on:

   ·16 October 2017;

   ·19 January 2019;

   ·7 November 2019;

   ·23 October 2020; and

   ·23 November 2021.

10. On 11 December 2019 the applicant applied for conferral of Australian citizenship, however, on 12 December 2019 the Department determined the application was invalid.

11. On 31 March 2021 the Department received two Child (Migrant) (Class AH) (Subclass 101) visa applications for [Miss D] and [Miss E] respectively, which were sponsored by the applicant on the basis that the applicant is the father of both children.

12. In support of those two Child visa applications, the applicant provided to the Department the birth certificates, which state the applicant is the biological father and [Ms F] is the biological mother of both children. [Miss D] was born on [Date] and [Miss E] was born on [Date].   

13. In support of the applications for the Child visas the applicant provided a written statement to the Department which had been translated from Vietnamese into English. In his statement to the Department the applicant stated:

    ·[Ms A] and he were divorced on [Date];

    ·Their marriage produced no children;

    ·From 2005 to 2020 he was in de facto relationship with [Ms F] having travelled back to Vietnam since 2005;

    ·He and [Ms F] cohabited together and had two children who he now wishes to sponsor to Australia to live.

14. On 6 June 2022 the applicant’s sixth Subclass 155 visa was cancelled by a delegate of the Minister under s 109 of the Act. It is the cancellation of the applicant’s sixth Five-Year Resident Return visa that is the subject of this review.

15. On 15 June 2022 the applicant was granted a Bridging E (Class WE) (Subclass 050) visa that had conditions 8101 (No Work), 8506 (Notify New Address) and 8207 (No Study) from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) attached.

16. On 29 June 2022 the applicant was granted a second Bridging E (Subclass 050) visa with the same conditions that were attached to his first Bridging E visa. At the time of this decision the applicant continues to hold his second Bridging E visa.

17. In October 2018, the applicant moved into a premises with [Mrs G], who is [Age] years old and her two children. [Mrs G] is an Australian citizen. By early 2019 the applicant and [Mrs G] became a de facto couple and their relationship has continued since, including that they continue to live together at the time of this decision.

18. [Mrs G] has two children from a previous relationship who lived with her at the time the applicant moved into their premises, but who have recently moved out for different reasons. [Mrs G]’s eldest child is [Mr H] who was born and raised as female but identifies as male and is referred to in these reasons, now being aged [Age] years, as [Mr H]. [Mrs G]’s youngest child is [Ms I], who is aged [Age] years, and is referred to in these reasons as [Ms I]. [Mr H] and [Ms I] are both Australian citizens.    

    The primary decision of a delegate of the Minister

19. The applicant provided the Tribunal with a copy of the primary decision.

20. The delegate cancelled the visa on the basis that the applicant failed to keep the Department informed about the circumstances of his new relationship with [Ms F] and failed to inform the Department that [Ms F] was pregnant with his child at the time his application for the Subclass 801 Permanent Partner visa, which was based on his spousal relationship with [Ms A], was being processed. As a result, the delegate found the applicant breached s 104 of the Act at the time of processing his application for the Subclass 801 Permanent Partner visa and therefore there was a ground to cancel the applicant’s current Subclass 155 visa for his previous breach of the Act.

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

    Tribunal hearings on 19 September 2023, 20 October 2023 and 14 March 2024

22. The applicant appeared before the Tribunal on 19 September 2023, 20 October 2023 and 14 March 2024 to give evidence and present arguments, in person.

23. The first Tribunal hearing had to be adjourned after only a short period due to technology issues associated with the interpreter participating by video.

24. The Tribunal also received oral evidence from:

    ·[Ms F] and [Ms A] during the 20 October 2023 hearing; and

    ·[Mrs G], [Mr H] and [Ms I] during the 14 March 2024 hearing.

25. [Mrs G], [Mr H] and [Ms I] attended all three of the Tribunal hearings in person to give evidence and support the applicant.

26. Each of the Tribunal hearings was conducted with the assistance of an interpreter in the Vietnamese and English languages. 

27. The applicant was represented in relation to the review by a migration lawyer, Mr Mark Northam of Northam Lawyers. Mr Northam is referred to in these reasons as the applicants’ representative or the representative. The representative attended each of the Tribunal hearings in-person and was assisted by [Ms J] who also attended each of the Tribunal hearings.

28. The representative provided extensive oral and written submissions to the Tribunal throughout this review. The representative’s written submissions were of high quality providing the Tribunal with relevant and probative evidence. The representative’s submissions were overall of considerable assistance to the Tribunal in the conduct of this review.

29. At the commencement of each Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and at the commencement of each hearing the Tribunal asked the applicant whether the applicant could understand the interpreter and whether he had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated each time he could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal.

30. At the commencement of the second Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

    Submissions

31. The Tribunal received submissions from the representative on behalf of the applicant on 17 September 2023, 19 September 2023, 13 October 2023, 19 October 2023, 27 February 2024 and 28 March 2024. These submissions attached documents including:

    ·an eight-page written statement from the representative, dated 15 September 2023;

    ·a one-page statement from the applicant in support of the Child visa applications lodged on 31 March 2021;

    ·an uncertified translation and an untranslated extract of Vietnamese law No. 47/2014/QH13 in relation to entry, exit, transit, and residence of foreigners in Vietnam;

    ·a certified translation and an untranslated birth certificate for [Ms F]’s eldest child [Miss D], date of registration: [November] 2007, extracted from the Birth Register of Ho Chi Minh City, dated 18 October 2012, showing she was born on [Date], her biological father is the applicant and [Ms F] is her biological mother, although each of the entries for each parent’s year of birth and residence are both shown as “[Blank]”;

    ·a certified translation into English of a birth certificate for [Ms F]’s youngest child [Miss E], date of registration: [October 2012], showing she was born on [Date], her biological father is the applicant and [Ms F] is her biological mother; showing the applicant’s residence in Vietnam was ‘[Address 1], District 5, Ho Chi Minh City’;

    ·a translated and an untranslated Vietnam police family registration document issued by the Ho Chi Minh City Police Department and dated 7 July 2022, confirming that [Ms F]’s address from January 2000 to the present of 2022 is ‘[Address 2], District 3, Ho Chi Minh City’;

    ·An initial and updated timeline of the applicant’s immigration history and personal circumstances in Australia (and Vietnam);

    ·Statements and statutory declarations declared by the applicant (multiple declarations), [Mrs G], [Mr H], [Ms I], [Ms F], [Mr K] (a friend with [medical condition] who the applicant assists) and [Mr and Mrs L] (friends of [Mrs G] and the applicant);

    ·Medical reports for [Mrs G], [Ms I] and [Mr K];

    ·Copies of the child visa applications made by [Miss D] and [Miss E];

    ·Financial documents for the applicant and [Mrs G] including statements for a bank account in their joint names, utility bills in joint names, tax information for the applicant and superannuation information for [Mrs G];

    ·Response to a letter sent by the Tribunal in accordance with the process set out in s 359A of the Act which included an updated statutory declaration from the applicant;

    ·Summary of the applicant’s movement records including when [Ms A] accompanied the applicant in Vietnam during their marriage; and

    ·a six-page written statement from the representative, dated 27 March 2024.

    Certificate issued by the delegate under section 375A of the Act

32. On 8 August 2023 the Tribunal sent the applicant a letter informing him that a delegate of the Minister had issued a certificate under s 375A of the Act on 16 June 2022. A copy of the s 375A certificate was attached to the Tribunal’s letter. The effect of a s 375A certificate is to prevent the Tribunal from providing the applicant with copies of documents the Department provided to the Tribunal on specific public interest grounds.

33. The Tribunal explained in its letter to the applicant providing him with a copy of the s 375A certificate and inviting the applicant to comment on it that:

    ·The certificate applies to 13 documents on the Department file provided to the Tribunal. The Tribunal formed a preliminary view that the certificate had been properly executed, identified relevant public interest grounds against the disclosure of the documents to the applicant and therefore the certificate binds the Tribunal, subject to any submissions the applicant chose to make, including but not limited to about the validity of the certificate; and

    ·The material particulars of the information in the 13 documents the certificate applies to are that the documents are internal emails and forms between the team or section of the Department assessing the applicant’s sponsorship of two Child visa applications referring information in those applications to the team or section of the Department that assesses whether a visa should be cancelled or not. The documents include the sharing of information in the Child visa applications with the Cancellations team and the Cancellations team seeking a copy of the applicant’s Partner visa applications file from Departmental archives and the team assessing the Child visa applications following up with the Cancellations team several times in relation to the whether cancellation of the applicant’s Resident Return visa would occur or not. Attached to some of the emails are formal referral and assessment forms and copies of documents provided by the applicant in support of the applicant’s Partner visa applications.

34. The applicant did not provide a written response to the Tribunal’s letter about the s 375A certificate and did not seek that the Tribunal release the documents or the information in the documents covered by the certificate to the applicant.

    Letter from the Tribunal to the applicant sent in accordance with the procedure set of s 359A of the Act

35. On 13 February 2024 the Tribunal sent the applicant a letter in accordance with the process set out in s 359A of the Act. That letter specified the inconsistencies between the applicant’s evidence and [Ms A]’s evidence as follows:

The applicant’s evidence	[Ms A]’s evidence
1.    You were in a genuine spouse relationship with [Ms A].	[Ms A] alleges you only married [Ms A] to achieve your preferred migration outcome of living in Australia, you used her money for your own purposes, and you ruined her life.
2.    You were in a genuine spouse relationship with [Ms A].	[Ms A] alleges that in your many trips back to Vietnam during your marriage to [Ms A], you did not allow [Ms A] to travel with you. [Ms A] alleges you did not allow [Ms A]’s daughter to call you ‘father’.
3.    You returned to Vietnam to care for your father and were never in a de facto relationship with [Ms F]. You and [Ms F] have two daughters together as a result of infrequent, casual intimacy.	[Ms A] alleges you were in a de facto relationship with [Ms F] and lied to [Ms A] about that and used [Ms A]’s money to support your family in Vietnam.
The applicant’s evidence	[Ms A]’s evidence
4.    You are telling the truth about your relationships and circumstances.	[Ms A] alleges you were not truthful with [Ms A] about the purpose of your visits to Vietnam or about your relationship with [Ms F] and [Ms A] does not consider you to be a person who is truthful or who can be trusted.
5.    You lived at your father’s property in Vietnam and never lived with [Ms F[.	[Ms A] alleges [Ms A]’s mother had friends in Vietnam who claim you were living with a woman, when [Ms A] tried to contact you in Vietnam a woman answered the phone and when [Ms A] and a cousin went to Vietnam just prior to your divorce they found you were not living with your father.
6.    Your purchase of a house with [Ms A] demonstrates that you were in a genuine spouse relationship, and you contributed financially to that purchase.	[Ms A] alleges you did not contribute financially at all to your relationship with [Ms A], supporting her allegations that your marriage to [Ms A] was contrived by you to achieve your preferred migration outcome only.

1. The Tribunal’s letter explained the relevance of this information to the applicant’s review and also explained the consequences for the applicant’s review if the Tribunal relied on the information in the Tribunal’s letter.

2. In his response to the Tribunal’s s 359A letter the applicant provided a five-page statutory declaration declared on 27 February 2024. The applicant responded to the numbered points above as follows:

   1.The applicant continued to live with [Ms A] after obtaining his Australian permanent residency in August 2007 and they purchased the house together in March 2009, demonstrating it was a genuine spouse relationship. The applicant earned a modest income which he used in part to financially support his daughters in Vietnam and did not use [Ms A]’s money to do this. When the applicant and [Ms A] separated in 2011 the applicant left their car, which they purchased in 2005 for AUD50,000 with [Ms A] for her use, which [Ms A] later sold without consulting the applicant. The applicant also set out in detail the support he provided to [Ms A] during their marriage, including the support to [Ms A]’s daughter and niece who came to live with them in 2007.

   2.The applicant declares that [Ms A]’s travels back to Vietnam were limited by the availability and timing of her annual leave not by the applicant not letting [Ms A] return with him to Vietnam. The applicant declares it is not true that he did not allow [Ms A]’s daughter to call him ‘father’ and he treated [Ms A]’s daughter as his own daughter including, for example, teaching her to drive.

   3.The applicant not directly address items three to six above but did declare it is not true that [Ms A] observed the applicant’s motorbike parked outside [Ms F]’s residence in Vietnam, denies that a woman ever answered his phone while he was in Vietnam and asserted [Ms A] is making these claims with the aim of having the applicant deported from Australia.

3. The Tribunal gives the applicant considerable credit in arranging for [Ms A] to be available to the Tribunal as a witness, knowing their relationship did not end well and that [Ms A] would give evidence that would be adverse to the evidence and claims of the applicant.

   Tribunal decision

1. The Tribunal has had regard to the oral evidence of the applicant and [Ms F], [Ms A], [Mrs G], [Mr H] and [Ms I] and all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the Department’s Notice of Intention to Consider Cancelation of a visa (NOICC) issued to the applicant on 17 May 2022 and the applicant’s response to the NOICC.

2. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. 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.

4. 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.

   Did the notice comply with the requirements in s 107?

5. A delegate of the Minister sent the applicant a NOICC on 17 May 2022.

6. Having reviewed the NOICC and considered the requirements of s 107 of the Act, the Tribunal finds:

   ·the delegate reached the relevant state of mind that there was non-compliance with the Act;

   ·the NOICC contains sufficient particulars of the non-compliance; and

   ·the NOICC complies with the statutory requirements of s 107 of the Act.

   Was there non-compliance as described in the s 107 notice?

7. 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 ss 104 in the following respects:

   ·The applicant commenced a new de facto relationship with [Ms F] in 2005;

   ·In November 2007 [Ms F] gave birth to their first child;

   ·In October 2004 as part of the applicant’s application for Subclass 820 and Subclass 801 Partner visas sponsored by [Ms A], the applicant answered questions in the application that he was married to [Ms A], they had a mutual commitment to a shared life together to the exclusion of all others from 25 September 2002, they intend to maintain a lasting relationship and their relationship has not ceased;

   ·In completing the provisional and permanent visa applications, the applicant declared he would keep the Department informed of any changes to his personal circumstances  when both of his visa applications were being considered;

   ·The applicant also declared in his visa application that he would inform the Department if his relationship with his partner breaks down or ends in divorce, separation or death before his visa applications are decided;

   ·The answers provided by the applicant referred to above were correct at the time the visa applications were lodged and at the time of assessment of his application for the Subclass 820 visa;

   ·On 28 September 2006 as part of the applicant’s response to a request for information in relation to the processing of his Subclass 801 visa application, the applicant informed the Department that he and [Ms A] have a genuine and continuing relationship and that all information he has provided in responding to the Department is complete, correct and up-to-date in every detail;

   ·On 31 March 2021 the applicant sponsored [Ms F]’s daughters for Child (Subclass 101) visas, providing the statement paraphrased in paragraph 13 of these reasons;

   ·This information caused the delegate to find that the applicant’s following answers in his combined visa application in October 2004 were no longer correct at the time of the processing of his Subclass 801 visa application:

   oThat he and [Ms A] intended to maintain a lasting relationship; and

   oTheir married relationship had not ceased;

   ·The applicant provided a statutory declaration on 28 September 2006 stating he was in a genuine and continuing relationship with [Ms A] and they had a mutual commitment to a shared life as husband and wife to the exclusion of all others which was incorrect and he failed to keep the Department informed that he was in a new de facto relationship with [Ms F] and that [Ms F] was pregnant with their child and his relationship with [Ms A] had broken down.

8. The applicant contends that he has not provided incorrect information to the Department and has not failed to keep the Department informed of what is the correct information.

9. The applicant’s evidence is that the person who assisted him to prepare the Child visas, [Mr M] also prepared the English version of the applicant’s undated statement titled “STATEMENT In relation to my sponsorship of children”. The applicant submits that [Mr M] prepared the applicant’s statement in English by using Google translate. The applicant claims there were the following errors in the translation of what the applicant said in Vietnamese into the written English version of his statement provided to the Department:

   ·“I was in a de facto relationship with [Ms F]…”

   ·“We cohabited…”.

10. The representative submitted that the applicant, when describing his relationship with [Ms F]:

    … used the Vietnamese word “mối quan hệ” which translates to “temporary relationship” and is often used to describe an “affair” or “fling”.

11. In relation to the use of the word “cohabited” in the applicant’s statement the representative submitted:

    A similar misunderstanding apparently occurred with the use of the word “cohabitation”, despite [the applicant] clearly indicating in Vietnamese to the migration agent that while he and [Ms F] had sexual encounters in Vietnam, usually when they were away for a weekend or short trip together, they did not live together in Vietnam. The children of [the applicant] and [Ms F] live with [Ms F] and [the applicant] drops by only for visits. Additionally, it is clear that a word such as “cohabitation” is far beyond the rudimentary English skills of a person at the English language level of [the applicant].

12. The Tribunal in its hearing invitation to the applicant asked the applicant to provide any evidence available of the claimed translation errors. The applicant did not make [Mr M] available to the Tribunal to give evidence in relation to the claimed translation errors or obtain a written statement or statutory declaration from [Mr M]. The applicant told the Tribunal that [Mr M] is an old man who relied on his daughter to assist with completing the child visa applications and the applicant trusted them to translate what he said accurately. The applicant told the Tribunal that he told [Mr M]’s daughter that he had a relationship with [Ms F] where they sometimes had sex, but he did not tell her that they ever lived together. [Ms J] from Mr Northam’s office contacted [Mr M] in Vietnam and as a fluent Vietnamese speaker [Ms J] was able to find out that the translation of the applicant’s statement in support of the applications for child visas was done by “someone in the office” of [Mr M]. [Ms J] provided a copy of the applicant’s statement written in Vietnamese and the translation completed by [Mr M]’s office.

13. The Tribunal was not able to replicate the error the applicant claims [Mr M] made using Google translate. When the Tribunal entered the Vietnamese term “mối quan hệ” into Google translate the English translation produced was “relationship”. Similarly, when the Tribunal entered the term “de facto relationship” into Google translate the Vietnamese translation produced was “mối quan hệ thực tế”.

14. The Tribunal notes that the applicant provided two certified translations of his daughters’ birth certificates from Vietnamese into English in support of the Child visa applications lodged on 31 March 2021. Those certifications state the translations were made by [Mr N] of [Translation Co. Ltd] and the certification includes [Mr N]’s Vietnamese identity card number and a street address for his employer and state the translations were made on 12 January 2021.

15. Since that time the applicant has also provided a certified translation into English of a request made by [Ms F] in Vietnamese for a certification by the police of Ho Chi Minh City as to her residential address between January 2000 and 14 July 2022 and the police’s hand-written certification of the same, with the original document in Vietnamese this translation was made from also being provided to the Tribunal. The certification states the translation was made on 12 September 2023 by a National Accreditation Authority for Translators and Interpreters (known as NAATI) accredited translator.

16. It seems incongruous to the Tribunal that the applicant obtained certified translations of his daughter’s birth certificates in support of the Child visa applications but for the critical document of his statement in support of those applications the applicant relied on [Mr M] using Google translate to write his statement in English. Adding to this incongruity for the Tribunal the applicant since then has used an accredited translator when providing additional documents to the Tribunal.

17. The Tribunal asked the applicant about this during the third Tribunal hearing. The applicant told the Tribunal that he was aware [Mr M] and his office had made successful visa applications for others and he trusted them to be professional and he has no idea whether they were certified or professional translators.

18. The applicant told the Tribunal he got certified translations of his daughters identity documents because he had paid for a package of services from [Mr M] and it was the people in [Mr M]’s office who decided which documents needed certified translation and which documents did not.

19. The applicant gave evidence that he did not cohabit with [Ms F], they were not in a de facto relationship while he was married to [Ms A], it was a casual affair and did not affect his commitment to or relationship with [Ms A] and therefore [Ms F]’s pregnancy in 2007 was not relevant to the processing of his Subclass 801 visa and did not need to be disclosed to the Department.

    Applicant’s relationship with [Ms F] whilst married to [Ms A]

20. The applicant provided his Government movement records to the Department dated 30 May 2022 as part of the applicant’s response to NOICC. After the applicant first arrived in Australia in on 31 July 2004 and married [Ms A] on 3 October 2004, he returned to Vietnam on six occasions between then and the grant of the Subclass 801 Partner visa on 6 August 2007 as follows:

    ·[November] 2004 to [January] 2005 (59 days);

    ·[April] 2005 to [August] 2005 (126 days);

    ·[December] 2005 to [April] 2006 (114 days);

    ·[June] 2006 to [July] 2006 (14 days);

    ·[September] 2006 to [October] 2006 (12 days); and

    ·[December] 2006 to [March] 2007 (98 days).

21. These day calculations do not include the day of return to Australia. This means between the applicant’s first arrival in Australia as the fiancé of [Ms A] and the grant of the Subclass 801 Partner visa, being a total of 1,101 days, he spent 423 days in Vietnam and approximately 678 days in Australia. The Tribunal asked the applicant about why he returned to Vietnam for such periods at what was the commencement of his cohabitation with [Ms A]. The applicant told the Tribunal he was caring for his father in Vietnam although the Tribunal notes there is a lack of evidence about the medical conditions and general health of the applicant’s father until the period from 2014 to September 2017.

22. The primary decision also notes that the applicant spent the period [September] 2007 to [June] 2009 (659 days) in Vietnam during which time the applicant’s eldest daughter was born on [Date].

23. The primary decision states the delegate notes that that the applicant was in Vietnam between [August] 2012 and [July] 2017 (nearly five years) departing just over a month before the birth of his second daughter.

24. The Tribunal asked the applicant and separately [Ms F] about their relationship. The applicant told the Tribunal:

    ·He could not recall the month he met [Ms F] but recalled it was at a birthday party but could not recall whose party it was;

    ·They became intimate only a few days after the party;

    ·They did not see each other very often, only when he had the time or when he had a chance to call [Ms F] on the telephone;

    ·The applicant did not wear his wedding ring and did not think [Ms F] cared whether he was married or not but when she asked once he responded indirectly and she did not ask again;

    ·The applicant did not care or know whether [Ms F] had other relationships;

    ·[Ms F] was not married at the time and the applicant thinks [Ms F] has not ever married;

    ·The applicant and [Ms F] did not have any other children together;

    ·The applicant last saw [Ms F] in late 2019 or early 2020;

    ·The applicant knows [Ms F]’s daughters are his children because they look like him;

    ·The applicant did not consider a deoxyribonucleic acid (DNA) test to be necessary and they are expensive in Vietnam;

    ·The applicant and [Ms F] ceased being intimate after the birth of [Ms F]’s second daughter in September 2012;

    ·The applicant did not attend the births of [Ms F]’s daughters but picked up [Ms F] and each baby from the hospital. The applicant then took them to [Ms F]’s home but did not stay with them or spend a lot of time with them;

    ·[Ms F]’s daughters identify the applicant as their father and call him ‘dad’;

    ·The applicant provided some financial support but for [Ms F]’s daughters only usually by getting friends to take money to [Ms F], although he did not do this regularly;

    ·When the applicant spent 280 days in Vietnam in 2020 he visited [Ms F]’s daughters but did not spend a lot of time with them because he was focussing on repairing his father’s dilapidated residence;

    ·When the applicant spent 56 days in Vietnam in 2020 he visited [Ms F]’s daughters but did not spend a lot of time with them;

    ·The applicant did not live with [Ms F] and her daughters after his divorce from [Ms A] but would stay overnight sometimes if [Ms F]’s daughters wanted him to;

    ·The applicant does not have a relationship with [Ms F] now other than through their two daughters;

    ·[Ms F]’s daughters want to come to Australia because the applicant has regularly told them what life is like in Australia;

    ·[Ms F] will have the same rights in relation to her daughters if they come to Australia but to the applicant’s knowledge [Ms F] does not have any plans to visit or move to Australia.

25. [Ms F] gave the following evidence about her relationship with the applicant:

    ·[Ms F] met the applicant in around April 2005;

    ·[Ms F] saw the applicant infrequently after the party but had met several times before they became intimate;

    ·[Ms F] and the applicant did not see each other very often throughout the rest of 2005 and 2006;

    ·[Ms F] only had a relationship with the applicant, who did not tell her he was married, but she did not ask him if he was either;

    ·[Ms F] did not see her relationship with the applicant as a long-term one because he lived overseas (in Australia) but she loved the applicant and wanted to have a baby with him but did not tell the applicant that because she was afraid the applicant may not agree to have a baby together;

    ·The applicant did not ever tell [Ms F] he loved her because they treated each other as friends;

    ·During that time, between 2005 and 2007, [Ms F] did not see anyone else and did not ever get married or have another relationship such that she knows the applicant is the father of her daughters;

    ·[Ms F] could not recall when she last saw the applicant;

    ·[Ms F] could not recall whether the applicant attended the birth of her daughters but did recall he visited;

    ·[Ms F] could not recall how she got home with each baby when she left hospital but did recall her mother was with her;

    ·The applicant would visit [Ms F]’s daughters whenever he was in Vietnam when his caring responsibilities for his father allowed, but did not spend time with [Ms F];

    ·The applicant would send money through friends for [Ms F]’s daughters a couple of times each year and each time it would generally be around AUD300, which [Ms F] would spend on her daughters;

    ·The applicant continued to provide financial support until he was unable to work;

    ·The applicant visited [Ms F]’s daughters in 2020 and stayed overnight sometimes if her daughters wanted him to;

    ·[Ms F] could not specifically recall the applicant’s 2022 visit but did recall that each time the applicant returned to Vietnam he would visit [Ms F]’s daughters;

    ·[Ms F]’s daughters call the applicant ‘dad’;

    ·The applicant did not tell [Ms F] when he got divorced from [Ms A];

    ·[Ms F] is happy for her daughters to go to Australia if they are happy and get to spend more time with the applicant as their father;

    ·[Ms F] was not aware of what her daughter’s living arrangements would be in Australia or matters such as where they would go to school;

    ·[Ms F] is prepared to be separated from her daughters if they have a better environment to live in for the future in Australia; and

    ·[Ms F] does not have any plans to visit or move to Australia as she has an elderly mother to care for in Vietnam.

26. The Tribunal was not convinced by the evidence of the applicant and [Ms F] and the submissions of the representative that the applicant and [Ms F] were not in a de facto relationship from mid-2005 until at least late 2012 and possibly longer. The Tribunal formed the strong impression, but does not find, that the applicant and [Ms F] gave their evidence in both a manner and substance that was intended to deliberately downplay the significance of their relationship. This has caused the Tribunal great concern that their relationship between mid-2005 and late 2012 was of more significance to each of them than their oral evidence to the Tribunal revealed.

27. The Tribunal does not base this view on the inability of either the applicant or [Ms F] to recall specific details of the development of their relationship given the time period some of their evidence related to.

28. The Tribunal also does not base this view on [Ms A]’s evidence that the applicant only used her for money and did not contribute financially to their marriage. The Tribunal gives very limited weight to these and the other allegations of [Ms A] that the applicant responded to, reasonably in the Tribunal’s view. The Tribunal gives some weight to [Ms A]’s allegation that when [Ms A] visited Vietnam just prior to her divorce from the applicant, she found the applicant was not living with his father because this is based on [Ms A]’s first-person observation and the applicant did not respond directly to this allegation. [Ms A]’s evidence, or the observations of her mother’s friends in Vietnam that the applicant was living with an unnamed woman, do not prove in a manner the Tribunal finds probative that the applicant was living with [Ms F] at either times.

1. The Tribunal was also not convinced by the evidence of the applicant or the submissions of the representative about the translation errors in the applicant’s statement in support of the Child visa applications. The failure to have this key document to the Child visa applications translated by a certified translator when other documents were and the inclusion in that document of critical errors that were not out of context in the applicant’s broader circumstances led the Tribunal to doubt the explanation for those ‘errors’ put to the Tribunal. Again, this is not a finding that translation errors did not occur.

2. After the third Tribunal hearing the representative submitted on behalf of the applicant:

   The applicant stands by his testimony that he did not commence a de facto relationship with [Ms F] in Vietnam during any time that the partner visa with [Ms A] was under consideration. The unfortunate mis-translation of the Vietnamese word into “de facto” by staff or other unknown persons employed by the applicant’s former migration agent [Mr M] in Vietnam should not be relied upon for a variety of reasons including lack of evidence of a properly trained translator doing the translating, but more fundamentally because the evidentiary requirements of reg 1.09A of the Migration Regulations 1994 (Cth) that would establish a de facto relationship under the migration law are clearly not met.

   There is no official authority similar to Office of the Migration Agents Registration Authority (OMARA) to regulate the “Migration agent” profession in Vietnam. Anyone who has some English knowledge and Australian migration procedure can open a business and call himself/herself a “migration agent”. Additionally, OMARA does not require Migration agents who operate outside Australia to be registered. As a normal practice of the migration office in Vietnam, the applicant provides all documents to the agent, who will translate all necessary documents. As a packaged service, the applicant completely trusts the agent to do the right thing. The applicant would turn up and sign whatever documents were produced by the agent, without questioning the content of the documents word by word.

   It is a cultural and norm in Vietnam to call someone in a “de-facto” relationship, even if they are living together for a short time or long time period, or in a boyfriend/girlfriend relationship, or just exchanging sex temporarily without a legal document. As the agent in Vietnam explained, as long as a person has a child with another person, whether it is unplanned or accidental, the person is deemed to have a de-facto relationship, which is outside of the definition in the reg 1.09A of the Migration Regulations As discussed, an applicant cannot simply “declare” they are in a de facto relationship and have the Department simply “accept” the declaration – that would go against the entire evidence-based approach that provides the foundation of our migration legislation in Australia and as such should be rejected in favour of a dispassionate examination of the evidence against the legal requirements under 1.09A which, we submit, will clearly favour the applicant’s position that no de facto relationship existed.

   This is further supported by the multiple family registration documents in evidence showing that [the applicant] at no point during the relevant time period prior to the grant of the permanent partner visa lived with [Ms F]. Similarly, the fact that the applicant had casual sexual relations with [Ms F] to the extent that she became pregnant with their child some months before the permanent partner visa with [Ms A] was approved does not invalidate or negate the applicant’s married relationship with [Ms A] under Australian law, and arguments that advance the idea that Australian marriages are somehow nullified, legally ended, or otherwise terminated have no basis in Australian law, lest every married person who has an affair would find themselves with a legally-dissolved marriage as a matter of law. This argument must be rejected as being without any basis in law.

   The proposition that sexual infidelity by one of the parties to a married relationship does not necessarily take the relationship outside the definition of spouse or de facto is supported by the case of Cao v MIAC [2007] FMCA 225 where Riley FM at [36] and [42] made it clear that sexual infidelity by one party to a partner relationship does not necessarily mean that married relationship has broken down irretrievably or ceased.

3. The Tribunal finds there is considerable force to these submissions in the context of the NOICC issued by the Department in this review.

4. As set out in paragraph 45 of these reasons, the Department’s NOICC alleges the applicant’s breach of the Act as being a breach of s 104(1) of the Act which relevantly provides:

   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.

5. The allegations in the NOICC about the applicant’s non-compliance with s 104 are quite specific including that the applicant failed to inform the Department about his new circumstances during the processing of his application for the Subclass 801 Permanent Partner visa being:

   ·That the applicant’s marriage to [Ms A] had ended prior to the 6 August 2007 grant of the Subclass 801 Permanent Partner visa; and

   ·The applicant entered into a de facto relationship with [Ms F] “some time in 2005” and [Ms F] was pregnant with their child at the time of processing of his application for the Subclass 801 Permanent Partner visa.

6. On the evidence before the Tribunal, the Tribunal is not satisfied either of these grounds are made out. The Tribunal is not satisfied, its concerns about the evidence of the applicant and [Ms F] and the passionate evidence of [Ms A] notwithstanding, that the applicant’s marriage to [Ms A] had ended prior to 6 August 2007 given the broader circumstances of the applicant including the subsequent joint purchase of major assets such as a house.

7. The Tribunal is also not satisfied that there is sufficient probative evidence before the Tribunal that the applicant had entered into a de facto relationship with [Ms F] “some time in 2005”. This is despite the very detailed questioning of the applicant, [Ms F] and [Ms A] by the Tribunal across multiple Tribunal hearings. The fact that the applicant has two children, born in [Year] and [Year], regularly returned to Vietnam to visit the children and provided ongoing financial support to the children each support a finding that the applicant’s relationship with [Ms F] was more than the mere casual affair as presented to the Tribunal. The Tribunal’s doubts about the evidence of the applicant and [Ms F] about their relationship adds weight to this support.

8. However, without more, that evidence is not sufficient in the Tribunal’s view to sustain a finding the applicant breached s 104(1) in the manner described in the NOICC.

9. The applicant’s regular visits to [Ms F]’s daughters and his undocumented financial support of them is capable of alternate explanation including that it represents the applicant fulfilling what he perceived as personal moral responsibilities to his claimed children. The Tribunal found the claims of the applicant and [Ms F] that the applicant’s financial support was for the children only to be artificial and contrived.

10. If the NOICC had been limited to [Ms F] being pregnant to the applicant in 2007 prior to the grant of the Subclass 801 Permanent Partner visa, given the timing of relevant events, then that alone would have grounded a breach of s 104 in the Tribunal’s view. Whilst that allegation is made in the NOICC it is not that allegation of itself that is identified as a breach of s 104.

11. The NOICC limits the alleged breaches to a failure to disclose the applicant being in a de facto relationship with [Ms F] and a failure to disclose what the Department identified as the related ending of his married relationship to [Ms A].

12. For these reasons, the Tribunal finds that the non-compliances alleged against the applicant did not occur in the way described in the s 107 notice or NOICC. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    Conclusion

13. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the NOICC given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise. It follows that the delegate’s decision to cancel the visa must be set aside.

    Other matters

14. The Tribunal received statutory declarations and oral evidence from [Mrs G], [Mr H] and [Ms I] which is not summarised in these reasons. This is because the Tribunal has found a ground for the cancellation of the applicant’s visa has not arisen.

15. [Mrs G], [Mr H] and [Ms I] attended all three Tribunal hearings and waited until the end of the third hearing to give their evidence. The Tribunal found they each gave their evidence openly and spontaneously, without effect or exaggeration and were each an impressive witness. Also impressive was their support of and obvious affection for the applicant.

16. The Tribunal requested and received considerable documentation in relation to the relationship of [Mrs G] and the applicant. The representative remarked during one hearing that the Tribunal was seeking information akin to that usually supporting a Partner visa application. This was a reasonable observation. The Tribunal sought this level of information and spent considerable time taking the oral evidence of [Mrs G], [Mr H] and [Ms I] for a specific reason.

17. If the Tribunal had found there was a ground for cancellation of the applicant’s visa, then the information provided about the applicant’s relationship with [Mrs G] and the oral evidence of [Mrs G], [Mr H] and [Ms I] would have been relevant to the Tribunal’s assessment of the ‘present circumstances of the visa holder’ discretionary consideration. This consideration would likely have weighed greatly against the cancellation of the applicant’s visa.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Michael Ison
    Senior 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.

    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.