Bui (Migration)

[2018] AATA 3804

Bui (Migration) [2018] AATA 3804 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Bach Van Bui

CASE NUMBER:  1726272

DIBP REFERENCE(S):  BCC2016/2415612, CLF2012/248711, OSF2012/029638

MEMBER:K. Chapman

DATE:3 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 Partner (Residence) visa.

Statement made on 03 September 2018 at 4:51pm

CATCHWORDS

MIGRATION – Cancellation – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – incorrect information provided to the Department – failure to declare the birth of the Sponsor’s child with another woman – separated prior to the grant of the Subclass 801 visa – credibility issues – answered questions in an evasive manner – changed evidence during the hearing – evidence suggests that the applicant was aware of the Sponsor’s other relationship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 101, 104, 107, 107A, 109, 349A, 359AA, 375A

CASES

MIAC v Khadgi (2010) 190 FCR 248

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. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 Partner (Residence) visa under s.109(1) of the Migration Act 1958 (‘the Act’).  

2. The applicant, Ms Thi Bach Van Bui, is a 61 year old national of Vietnam. On 10 February 2012, she applied for a Prospective Marriage Subclass 300 visa sponsored by Mr Dinh Minh Nguyen. On [date], a child of the sponsor was born to another woman in Vietnam, Ms Thi Binh Nguyen. This child, [Child 1], is an Australian citizen by descent. The birth of this child was not declared to the Department by the applicant and her Subclass 300 visa was granted on 12 September 2012. She arrived in Australia on 9 October 2012. On 17 December 2012, the applicant made a combined application for Partner Subclass 820 and 801 visas. The applicant was granted a Subclass 820 (Partner (Temporary)) visa on 18 December 2012. She was granted the Subclass 801 Partner (Residence) visa on 4 December 2015.

3. The delegate cancelled the visa on the basis that the applicant had not complied with sections 101(b) and 104 of the Act in that she failed to disclose information and notify changes in circumstances in the above two visa applications. The delegate determined that the applicant failed to notify changes in circumstances with respect to her Subclass 300 visa application by not notifying of the [birth] of the child fathered by the sponsor to another woman. Further, the delegate determined that the applicant provided incorrect information in her combined Subclass 820 and 801 visa applications by not declaring this child of the sponsor.

4. In September 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on the basis that she failed to comply with sections 101 and 104 of the Act. This NOICC was despatched to an address matched from Centrelink records. She was previously issued with a NOICC in July 2017 that was despatched to her last notified address to the Department. The applicant did not respond to either NOICC. On 11 October 2017, the delegate cancelled the applicant’s Subclass 801 visa.

5. The applicant appeared before the Tribunal on 12 June 2018 to give evidence and present arguments. The Tribunal also took oral evidence in person from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant confirmed she understood the interpreter. The applicant was represented in relation to the review by her registered migration agent. Pre-hearing written submissions and evidence were submitted to the Tribunal and have been duly considered. The applicant requested, and was granted, a period of three weeks following the review hearing to respond to information raised with her pursuant to s.359AA of the Act and to submit any further material. She provided a response and further material within the aforementioned time frame which have been duly considered by the Tribunal. On 17 August 2018, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting her to comment on or respond to apparent inconsistencies in her oral evidence and that of the sponsor regarding events following their engagement. On 31 August 2018, the applicant provided a response which has been duly considered by the Tribunal.

6. For completeness, the Tribunal notes that submissions were made on behalf of the applicant concerning the provision of material in the Departmental file pertaining to the grant of the Subclass 801 visa. Prior to the review hearing, the Tribunal provided all material in its possession to the applicant (less that covered by a s.375A certificate which is discussed in further detail below). Shortly after the Tribunal received a copy of the Subclass 801 visa grant correspondence from the Department, it was conveyed to the applicant in a prompt fashion by Registry staff. The Tribunal notes that at the review hearing the representative stated she was happy to proceed with the grant letter having been provided. The Tribunal is satisfied that no unfairness arose regarding this matter.

7. Further, the representative made submissions contending that the interpreting services, whilst not defective, contributed to confusion on the part of the applicant such that inconsistencies in her evidence should be given less weight. The Tribunal notes that at no stage did the applicant raise any objection to the interpreting services, it observed the applicant and the interpreter to engage in free flowing exchanges, and it was the representative who has sought to cast doubt in relation to the passage of information. Following careful consideration, the Tribunal does not accept that the use of the interpreting services during the hearing placed the applicant at any disadvantage or caused her any confusion. The Tribunal also notes that the representative, in submissions, sought to cast the applicant as a vulnerable person on account of her age, personal circumstances and educational attainment, contending that such matters should see less weight given to inconsistencies in her evidence. The Tribunal observed the applicant to participate freely in the hearing and to be under no obvious difficulty in comprehending the proceedings. Whilst the Tribunal accepts, as raised by the representative, that the hearing room was slightly warm on the day this matter was mitigated initially through the use of a fan (which was taken away due to noise), followed by an internal door being opened to increase air flow. At no stage was a request made for the hearing to be adjourned to another day and the Tribunal is satisfied that no unfairness was caused given its observation of the applicant being able to continue with the hearing without any obvious display of discomfort. Having carefully considered all relevant submissions and circumstances, the Tribunal is satisfied that the review hearing was conducted in a fair and reasonable manner.   

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   ISSUES AND LAW

9. The issues in the present case are whether the grounds for cancellation are made out, and if so, whether the visa should be cancelled.

10. 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.

11. 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.

12. By virtue of s.107A of the Act, the possible non-compliances that may be specified pursuant to s.107 include non-compliances in respect of any previous visa held by a person.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Evidence at the review hearing

13. The applicant’s oral evidence to the Tribunal may be summarised as follows. She was invited to comment upon the two NOICC’s sent to her by the Department and she indicated she did not receive the initial NOICC as it was sent to the sponsor’s address (which was her address recorded with the Department). The applicant advised that she initially separated from the sponsor in early May 2015, returned to the joint residence in late May 2015 and “left for good” around June or July 2015. The applicant confirmed the aforementioned evidence to the Tribunal on several occasions. Accordingly, the Tribunal is satisfied that there is no confusion surrounding this evidence, as was subsequently contended by the representative in her submissions. The applicant advised she and the sponsor legally divorced in December 2016. The applicant confirmed to the Tribunal that she separated from the sponsor prior to her being granted the Subclass 801 visa (which was granted on 4 December 2015). When asked by the Tribunal why she did not advise the Department of this circumstance, the applicant responded, somewhat unconvincingly, that she didn’t know how to do so. When asked by the Tribunal how she knew she had been granted the Subclass 801 visa, the applicant indicated the visa grant correspondence was sent to the sponsor’s residence and his daughter advised her of its contents.

14. The applicant confirmed that she was residing at her current address, and not that of the sponsor, at the time of the Subclass 801 visa grant. Subsequently, the applicant sought to retreat from her earlier evidence that she had left the relationship with the sponsor prior to the grant of the Subclass 801 visa. Her attempt to do so was inconsistent with her very clear earlier evidence and was presented in an unconvincing fashion. Accordingly, the Tribunal does not accept the applicant’s subsequent evidence regarding this matter. Further, the Tribunal raised with the applicant that it might have difficulty accepting her evidence that she did not know how to inform the Department of her separation from the sponsor, inviting her comment. The applicant maintained her position that she did not know how to contact the Department, adding she was stressed at that time. The Tribunal observed the applicant to provide her evidence on this matter in an evasive fashion and it does not accept the genuineness of it.

15. For completeness, the Tribunal notes that submissions were made contending that the relationship had not broken down prior to the grant of the Subclass 801 visa. Bank records indicating that pension payments to the sponsor had not altered in the relevant period were cited as an indication that the relationship had not broken down. Following careful consideration, the Tribunal prefers the spontaneous, unambiguous initial evidence of the applicant confirming she “left for good” around June or July 2015, to the ex post facto attempt to resile from this evidence and deny the relationship had ended prior to the grant of the Subclass 801 visa.    

16. The applicant confirmed to the Tribunal that she signed her Subclass 300 Prospective Marriage visa application. She also confirmed she signed her combined Subclass 820 and 801 Partner visa application. The applicant indicated she was introduced to the sponsor by her cousin. The applicant lived in Dong Nai Province in Vietnam at that time and the sponsor resided at Inala in Queensland. In 2011 they met each other in Vietnam and thereafter remained in telephone contact. After meeting face to face a few times, the sponsor asked the applicant to marry him. The applicant described having a big engagement celebration on 25 June 2011, with 18 tables present. It was held at her family home in Dong Nai Province, Vietnam. The applicant stated that her family, friends and neighbours attended the celebration, whilst none of the sponsor’s family attended. The applicant indicated the sponsor hails from Phu Yen Province. The applicant confirmed to the Tribunal that none of the sponsor’s family attended the engagement ceremony on 25 June 2011.

17. When asked by the Tribunal to describe what happened next immediately after the engagement ceremony, the applicant provided a vague account advising initially that they travelled to Da Lat and Cambodia together, then indicating nothing happened after the engagement ceremony and that the travel took place later on. The applicant then changed tack with her evidence, advising the sponsor stayed in her family home and that sometimes he went to Saigon for business without her. The Tribunal raised the inconsistency in her evidence with the applicant and she settled on the sponsor staying at her residence for a few days following the engagement, then proceeding by himself to Saigon for business a few days at a time. The applicant told the Tribunal that the sponsor was in Vietnam for around 6 months on the visit from Australia when he became engaged to her. When asked by the Tribunal if she resided with the sponsor for the majority of the time on his visit to Vietnam, the applicant indicated she lived with her mother and children, with the sponsor sometimes being in Saigon. She then added that they spent the majority of their time together in Da Lat. When the Tribunal raised with the applicant that her evidence on this issue was vague, she cited confusion and settled again on her narrative that the sponsor went back and forth from Saigon to her family residence.

18. The applicant advised that the sponsor said he would complete the visa paper work for her. She indicated that once the sponsor returned to Australia from Vietnam on this 2011 visit, he decided to proceed with that paper work. When asked by the Tribunal to confirm her role in the visa application, the applicant indicated that she completed her portion in Vietnam and the sponsor completed his portion in Australia. She confirmed this evidence to the Tribunal. Of note, submissions were made by the representative that the applicant had only a minimal role in completing the Subclass 300 Prospective Marriage visa application and substantially relied upon the guidance of others. The applicant also subsequently sought to retreat from her initial oral evidence concerning this matter. Following careful consideration, the Tribunal prefers her spontaneous initial evidence on this topic to the ex post facto attempt to cast doubt upon such evidence. Accordingly, the Tribunal finds that the applicant actively participated in the completion of her Subclass 300 visa application and was fully aware of its contents.

19. The applicant advised that after she was granted the Subclass 300 visa (on 12 September 2012) the sponsor did not return to Vietnam. After the applicant arrived in Australia (on 9 October 2012) she married the sponsor on 14 October 2012 at his residence in Inala. The applicant confirmed that she signed her combined Subclass 820 and 801 Partner visa application. When asked by the Tribunal to outline the circumstances of the sponsor’s children, the applicant advised he has three adult children. The applicant maintained that she was unaware of a fourth child of the sponsor until 2014. She apparently found out by locating money transfer receipts in the sponsor’s clothing. When asked by the Tribunal if she declared all of the children of the sponsor in her Subclass 300 and 820/801 visa applications, the applicant advised that the sponsor did the applications not her. For reasons previously expressed, the Tribunal does not accept that the applicant was unaware of the contents of her visa applications.  

20. When asked by the Tribunal to outline the circumstances of the sponsor’s youngest child, the applicant provided very vague evidence in a defensive fashion. She denied knowing the name of the child ([Child 1]) and only knew the mother as ‘Binh’. The applicant indicated that whilst she learned the sponsor had another child she did not know about him until the visa cancellation notice. She learned of Binh’s name through a friend. The Tribunal drew to the applicant’s attention that her Partner visa was cancelled on the basis that she didn’t declare the existence of this youngest child and asked if she knew the child’s name. She denied knowing the name and advised she was jealous and didn’t want to know his particulars. When asked by the Tribunal if she could provide any further particulars regarding the child or Binh, the applicant indicated she overheard a telephone conversation between the sponsor and Binh in 2014 after finding the money transfer receipt. The Tribunal observed the balance of the applicant’s evidence concerning the particulars of the sponsor’s youngest child and his mother to be delivered in a defensive fashion with much vagary. The Tribunal formed the impression that the applicant was not forthcoming with her evidence regarding this topic.

21. When asked by the Tribunal to outline her present circumstances, the applicant advised that she is divorced and the sponsor is caring for his youngest child. She added that there is no way she would go back to him. The applicant advised that the child and his mother reside in Vietnam. The applicant has difficulty accepting that the sponsor was unfaithful to her for many years. The Tribunal asked the applicant to outline her family circumstances. She advised that she has a cousin and a niece in Australia. The applicant confirmed this to be correct. In Vietnam the applicant has an older sister, two younger sisters, an older brother and a younger brother. She confirmed she had five siblings residing in Vietnam. The applicant also has an elderly mother, an adult son, an uncle and an aunt currently residing in Vietnam. The applicant has more than ten cousins residing in the United States of America. The applicant resides in Australia with her cousin and an adult child of the cousin. Another adult child of the cousin lives in Sydney and the applicant’s adult niece resides elsewhere.

22. The applicant advised that after her relationship with the sponsor ceased she “got a sore arm” and obtained payments from Centrelink. Her wrist was swollen and she received injections which helped somewhat. Centrelink wanted the applicant to work so in 2017 she obtained a job in a restaurant in Darra, Queensland where she still works. The applicant advised that her Centrelink payments were stopped because she is a part owner of the restaurant in Darra. When asked by the Tribunal when she became a part owner the applicant advised she could not remember. The Tribunal raised with the applicant that it might have difficulty accepting that she could not remember when she became a part owner in the restaurant, inviting her comment. The applicant responded that the other owner in about April or May “put her name down”. The applicant advised she always paid taxation on her income and does not receive Centrelink payments now. The Tribunal observed the applicant’s evidence regarding her part ownership of the restaurant in Darra to be delivered in a vague and unconvincing fashion. The Tribunal notes that it subsequently asked the applicant if she had made any contribution to the Australian community to which she replied, “no” because she doesn’t know English, doesn’t drive and she stays at home.     

23. The applicant confirmed to the Tribunal that she had never failed to comply with any visa requirements whilst she has been in Australia. The Tribunal drew to her attention that she gave earlier evidence indicating she separated from the sponsor prior to the grant of the Subclass 801 visa and that failing to declare this separation might tend to suggest she failed to comply with visa requirements, inviting her comment. The applicant responded that she “doesn’t know anything to declare.” The Tribunal raised with the applicant that it might have some difficulty accepting that she had applied for a Partner visa and didn’t know she had to declare separation from the sponsor to the Department, inviting her comment. The applicant replied that she was stressed and shocked at the time and didn’t know what to do. She advised the Tribunal that she had never breached any laws in Australia. The Tribunal views the applicant’s attempt to disavow knowledge of the requirement to advise the Department of the relationship breakdown, with respect to her Partner visa, to be unconvincing given the centrality of a continuing relationship to the grant of the Subclass 801 visa. 

1. The Tribunal raised with the applicant that if her visa is cancelled she would be an unlawful non-citizen subject to detention, it would be difficult for her to make visa applications in Australia, she would be liable for removal from Australia and she would likely face difficulties obtaining another Australian visa in the future, inviting her comment. The applicant replied that she didn’t do anything illegal. At this point the applicant’s representative submitted that the applicant did not understand the questions posed to her and raised the matter of the room being warm. The Tribunal granted an adjournment following which the representative contended that the applicant is a poorly educated person aged 61 years, lacks command of the English language, relied upon an unregistered offshore agent to assist with her Subclass 300 visa application and these matters should be taken into account. The Tribunal notes that it has carefully considered the aforementioned matters. For reasons previously expressed, the Tribunal does not accept that there was a problem with the interpreting service or the applicant’s comprehension of the proceedings. There is no medical evidence before the Tribunal to suggest that the applicant suffers any impairment with regard to cognitive ability or any other medical condition which might affect her understanding of the proceedings. The Tribunal did not observe the applicant to be in any obvious difficulty with respect to her age or for any other reason. Whilst the Tribunal accepts that the applicant and representative found the hearing room to be warm at times, steps were taken to mitigate this issue (as previously outlined) and the hearing proceeded without any obvious difficulties. Further, the Tribunal notes that the topic of the unregistered offshore agent was not raised by the applicant in her initial oral evidence, rather that evidence was suggestive of her playing an active role in the offshore visa application. The Tribunal prefers that initial oral evidence given its spontaneity.

2. The Tribunal raised the legal consequences of the applicant’s visa being cancelled with her again (as it had done prior to the adjournment) and invited her comment. She replied that she cannot return to Vietnam because her brother and sister are old, have their own families and cannot look after her. The applicant advised that her adult son cannot assist her now as his wife (the daughter in law of the applicant) does not want the applicant to interfere in their life. The applicant advised that she had loved the sponsor and had tried to reconcile with him. She indicated she is worried, stressed and would not know what to do for a living in Vietnam if she returned. She blamed the sponsor for her circumstances due to him fathering his fourth child. She does not want to return to Vietnam. The Tribunal raised with the applicant that given her wide circle of family resident in Vietnam it might have difficulty accepting she would receive no family support if she returned. She replied that her siblings are poor, lived in bad conditions and relied upon children to look after them.

3. The applicant advised she completed education to grade seven level in Vietnam. She maintained that if she cannot remain in Australia she will face hardship in Vietnam. The Tribunal raised with the applicant that her representative had submitted a news article regarding elderly poverty in Vietnam and asked her of the relevance of it to her, noting she was not mentioned in the article. The applicant advised that her sister is 67 years old, has lots of medical problems and relies upon her children. The wife of her brother had a stroke and another brother of the applicant is a priest. The Tribunal raised with the applicant that the representative submitted a copy of Departmental notes regarding her interview with Departmental officers on 9 April 2012 in which she stated, “…I have a good life here in Vietnam. But I love him so I am prepared to leave my life here for him.” The Tribunal indicated that the aforementioned might tend to suggest that she won’t face difficulties if returning to Vietnam, inviting her comment. The applicant replied that when she still lived in Vietnam she sold items in the market, at that time her son was unmarried and she made enough to live off with her life being good. She advised that as her son is now married her circumstances would be different. The applicant told the Tribunal that she had given truthful evidence, she cannot live in Vietnam, she trusted the sponsor who had a child with another person, she is struggling and she cannot control what he did.

4. The sponsor gave oral evidence to the Tribunal which may be summarised as follows. He advised that he met the applicant through his cousin, they met in person in 2011 and proposed marriage within a few weeks of this meeting. He confirmed that an engagement ceremony was held on 25 June 2011 at the applicant’s family home in Dong Nai Province. The sponsor told the Tribunal that only family members of the applicant attended this engagement ceremony and none of his own family attended. The sponsor confirmed this evidence to be correct. When asked to outline what happened after the engagement ceremony, the sponsor initially described that he lived in a hotel nearby the applicant’s home. He then advised that the night of the engagement ceremony he went out with friends and then stayed in a hotel in Saigon by himself. The sponsor indicated that he could not live with the applicant at that time due to cultural reasons. He then advised he returned to the applicant’s home town, thereafter travelling back and forward from it.

5. When asked by the Tribunal if he had ever stayed in the same residence overnight with the applicant after the engagement ceremony, the sponsor advised that he had not and that he only stayed in a hotel nearby. The sponsor indicated he would stay at that hotel usually for two to three nights then he would go back to Saigon for up to a week then he would head back to Dong Nai. The sponsor outlined that in the three weeks following the engagement ceremony, he stayed in hotels at Dong Nai, Saigon and also Thuc Duc (a District of Saigon). He explained that he was visiting friends and drinking with them at this time. The sponsor advised that he was in Vietnam for about 5 to 6 months on his visit in 2011 when he became engaged to the applicant.

6. When asked if anything of note occurred in his life in the three weeks following the engagement ceremony, the sponsor advised that he started dating another girl whom he had previously met. He confirmed the first time he went out with the girl was following his engagement to the applicant. He described having an affair with her in a hotel. Her name is Ms Binh Thi Nguyen. When asked by the Tribunal if he became engaged or married to Binh during this time, the sponsor stated that he was not married to her and they had an affair. He added that Binh required him to have a celebration and this was held in November 2011. When asked by the Tribunal, the sponsor denied becoming engaged to Binh shortly after his engagement to the applicant. When asked by the Tribunal if he became engaged to Binh a few months after becoming engaged to the applicant, the sponsor replied “yes”. He confirmed this response to the Tribunal.

7. When asked by the Tribunal to describe his relationship with the applicant after departing Vietnam on this 2011 visit, the sponsor indicated it was very good. The sponsor also confirmed to the Tribunal that he became engaged to Binh prior to returning to Australia from this 2011 visit. The sponsor indicated he married the applicant in Australia at his home on 14 October 2012. The sponsor initially advised Binh told him she was pregnant a few months after marrying the applicant. When the Tribunal asked when the baby was born, the sponsor advised he was born on [date] and indicated he first learned Binh was pregnant towards the end of 2011 at [a certain] stage of the pregnancy.   

8. The sponsor advised that he has four children, the three oldest reside in Australia and the youngest lives in Vietnam. The sponsor indicated that he did not declare all of these children in the Subclass 300 and 820/801 visa applications because he was hiding the birth of [Child 1], who is now [age years old]. The sponsor informed the Tribunal that he is not sure how the applicant found out about the child but he thinks she found a money transfer receipt or heard him on the telephone talking. He indicated this was around the end of 2014. The sponsor advised that the child is doing well, he has no relationship with his mother ‘Binh’ and he is currently single. The sponsor advised that it was his mistake which has resulted in the current situation for the applicant. Following the evidence of the sponsor, the applicant was invited to make comment. She indicated she tried to reconcile with the sponsor but due to her jealously she could not. She stated that when she left his residence she knew she had made a mistake but had no lawyer or advice at that time. She did what she had to do at the time and was shocked to discover the sponsor’s infidelity. After providing the applicant with the opportunity to make comment upon the sponsor’s evidence an adjournment was taken.

9. Following the adjournment, the Tribunal indicated it would raise certain information with the applicant. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with her that Departmental file OSF2012/029638 at folio 51 contains an English language translation of a ‘Relationship Explain Letter’ (the Vietnamese version is at folio 52) which she signed and submitted in relation to her Prospective Marriage visa application. It states in part, “Before he return to Australia, he says that he want us to live together, to share each other in our old ages. Therefore, we formally introduce to our family on 10^th May 2011. In June 19^th 2011, Mr Minh returned to Vietnam to prepare for our engagement which is in June 25^th 2011. Then we went to Quy Nhon to visit some cousins (Quy Nho is his hometown). We plan for our wedding ceremony in Australia that will take place at 47 Goldfinch St, Inala, Queensland 4077 on 5^th May 2012.” This file also contains at folio 79 notes from her interview with the Department on 9 April 2012 where she indicated 18 tables with family members, including the sponsor’s nephews and nieces, attended the engagement ceremony.

10. The Tribunal further raised with the applicant that Departmental file BCC2016/2415612 at folio 9 contains photographs submitted by the sponsor to the Department in support of an application for Australian Citizenship by Descent in respect of his son, [Child 1] born on [date]. The photographs submitted by the sponsor depict him with Ms Thi Binh Nguyen becoming engaged or married at a ceremony held on 10 July 2011 (which is approximately 2 weeks after the applicant held an engagement ceremony with him) and also show her in a wedding dress (a copy of the photographs were provided to the applicant). The delegate’s visa cancellation decision also refers to an email sent by the sponsor on 29 July 2016 advising that his engagement with Ms Thi Binh Nguyen was organised on 10 July 2011, that following the engagement they split up and he then learned she was pregnant, and sent money every month to support the child.

11. The Tribunal further raised with the applicant that during the review hearing the sponsor stated he was not engaged to Binh until around November 2011 and that both of them informed the Tribunal in oral evidence that none of his family attended their engagement ceremony. Additionally, the Tribunal drew to the applicant’s attention that Departmental movement records demonstrate the sponsor was outside of Australia between 19 June 2011 and 19 December 2011.

12. The Tribunal indicated that the above information is relevant as it tends to suggest that inconsistent information has been provided to the Department and the Tribunal, it casts doubt on her and the sponsor’s truthfulness and credibility, it tends to suggest that she was aware of the sponsor’s relationship with Ms Thi Binh Nguyen, and it tends to suggest she was aware of the birth of [Child 1] prior to the grant of the Subclass 300 visa. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. Following clarification by the Tribunal, the applicant confirmed that she understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to this information. She requested an adjournment to consider her position, which was duly granted. Following the adjournment the representative requested the applicant be permitted to respond in writing, the applicant confirmed this herself and the Tribunal duly granted the request. Ultimately, the Tribunal granted the applicant a period of three weeks to respond following submissions by the representative that she was busy at this time of year. The response of the applicant was received within the aforementioned time frame and has been duly considered (as is described in further detail below).

13. The applicant confirmed to the Tribunal that she had no further oral evidence to provide. The representative was invited to make oral submissions. These may be summarised as follows. The representative took issue with the interpreter referring to the term ‘children’ in Vietnamese during the hearing whilst the applicant has one child. The Tribunal notes the applicant did not raise this with the Tribunal herself at any stage and in conjunction with reasons previously expressed does not accept that the interpreting services were deficient. The representative contended that the applicant’s lack of English language ability, age, and lack of education were relevant factors regarding the completion of the visa application. Further, regarding the applicant’s lack of knowledge regarding her ownership arrangements for the restaurant in Darra, the representative contended the aforementioned factors demonstrate she relies upon others to enter into arrangements. The representative stated that she might provide documents in relation to the business subject to instructions. The Tribunal notes that no documents, other than references in written submissions, were ultimately provided. It was contended that the media article referring to elderly persons in Vietnam without family support facing hardship highlights the case for the applicant. Additionally, it was submitted the applicant would not have a good life in Vietnam now given her son is married, which he was not at the time of the Departmental interview, and the applicant’s relationship with the daughter in law is not close. The representative advised all other responses would be in writing. The Tribunal has carefully considered all of the submissions raised. As previously outlined, the Tribunal granted the applicant a period of three weeks to respond to the s.359AA information due to the busy schedule of the representative.

    Section 375A Certificate

14. The Tribunal notes that a Certificate pursuant to s.375A of the Act dated 2 November 2017 is contained in Departmental file BCC2016/2415612 with respect to folios 11-12 and 21-28. The Certificate indicates disclosure of the material would be contrary to the public interest because of the following reasons, ‘Folio 11-12: This is the internal document that shows the procedures used to obtain information required for the visa cancellation. Disclosure of this document to the public hinders DIBP’s ability to perform required checking by making operational contacts and requirements public knowledge’, and ‘Folio 21-28: This is information provided by DIBP from Centrelink. This information is provided under the Social Security (Administration) Act 1999, A New Tax System (Family Assistance) (Administration) Act 1999 and the Student Assistance Act 1973. The information provided is known to the applicant however the methods of obtaining this information are contained within this folio. Disclosure of this information to the public compromises the integrity of how both DIBP and Centrelink obtain and share information, thus hindering the operational procedures of both departments.’

15. During the review hearing, the Tribunal provided a copy of the s.375A Certificate to the applicant and invited submissions upon its validity. The applicant’s representative contended that all folios should be disclosed as the grounds cited in the Certificate were unlikely to be applicable to all of the material and that redaction should be sufficient to protect any information otherwise. Written submissions buttressed these contentions. The Tribunal took an adjournment to consider the aforementioned submissions. Following the adjournment, the Tribunal advised it held the preliminary view that the Certificate is valid given public interest grounds are specifically stated. Accordingly, the Tribunal provided the ‘gist’ of the material to the applicant at the review hearing.

16. The gist of the material is that folios 11-12 contain a Departmental checklist for the processing of visa cancellations, which is of an administrative character. Further, folios 21-28 contain documents relating to a request from the Department to Centrelink for the full name, address and contact number history for the applicant. Such information was provided to the Department and is administrative in character. The Tribunal invited submissions upon the gist of the material. The applicant’s representative contended that there were no valid reasons why a checklist and Centrelink information could not be provided. The Tribunal carefully considered the material and submissions, then advised that it proposed to place no weight upon any of the material given it is not relevant to the review. The representative contended that she could not comment upon the relevance and indicated this topic was currently being considered in an unrelated High Court application. Following careful consideration, the Tribunal has placed no weight upon any of the material covered by the s.375A Certificate dated 2 November 2017.

    Material received by the Tribunal following the review hearing

17. The Tribunal received written submissions and evidence following the review hearing in accordance with the time frame agreed to with the representative. These submissions expanded upon those made prior to and during the review hearing and are summarised as follows. As previously outlined, contentions were raised regarding the ability of the applicant to comprehend the proceedings (including with regard to translation), temperature of the hearing room and provision of s.375A information. For reasons previously expressed, the Tribunal is satisfied that the applicant was provided with a fair opportunity to present her case, fully understood the proceedings and was provided with all information relevant to the review.

18. A news article was submitted indicating, inter alia, that ‘70% of all marriages experience an affair.’ This article does not make reference to the applicant or to cultural considerations pertaining to relationships among persons of Vietnamese origin. It is contended this article supports the conclusion that the sponsor had an affair unbeknown to the applicant. Given the generic content of the article, the Tribunal affords it low weight. Further, submissions were made that the relationship between the applicant and sponsor was genuine until its dissolution, the sponsor did not maintain a relationship with Ms Binh Nguyen (for example by travelling infrequently to Vietnam between 2011 and 2016, with a submitted copy of his Passport indicating three visits following his last 2011 trip), the sponsor held an engagement ceremony with ‘Binh’ “…to ‘smooth over’ the fact the Sponsor did not intend to continue his relationship with her”, the applicant was duped by the sponsor, inconsistencies in evidence regarding attendance at their own engagement ceremony are attributable to confusion arising from various visits to relatives following the event, and the sponsor was simply mistaken in the hearing about the date of his engagement to Binh due to stress in the hearing. In summary, a central theme of contentions on behalf of the applicant is that inconsistencies in her evidence (including with respect to material provided to the Department) are attributable to factors other than a lack of credibility, thus supporting the ultimate submission that it is the sponsor who has responsibility for not declaring his fourth child and the applicant is effectively an innocent bystander.

1. It was also submitted on behalf of the applicant that she learned of the sponsor’s affair and child about May 2015. Further, it is contended that the applicant and sponsor “…attempted to repair their relationship and despite separation they still both held the view that the relationship could and would continue.” Additionally, submissions were made that the applicant met all of the criteria for the Subclass 801 Partner visa grant on 4 December 2015, including that they “…had not yet decided that the separation was in a permanent basis”…“…both parties still had a mutual commitment to a shared life together”…“…their relationship was genuine and had the capacity to continue if the couple could reconcile their differences.” Bank records of the sponsor were submitted to demonstrate that his rate of pension did not increase until August 2016, as would be expected of a single person, therefore seeking to buttress the assertion that the applicant and sponsor were still in a spousal relationship until that time.    

2. Further, as was contended at the review hearing, it was submitted on behalf of the applicant that her circumstances in Vietnam have changed since the marriage of her son there. Her son’s marriage documentation was submitted to the Tribunal and it accepts that he is married. The marriage of her son is said to be the catalyst for the applicant falling into poverty if she returns to Vietnam. It was also submitted that the applicant is part owner of a restaurant in Darra, Queensland which she owns with her cousin and if she departs Australia both her and the business would suffer detriment. The Tribunal notes that no persuasive primary documentation was submitted in relation to this business.

3. On 17 August 2018, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting her to comment on or respond to apparent inconsistencies in her oral evidence and that of the sponsor regarding events following their engagement. This correspondence drew to the applicant’s attention that, inter alia, she gave oral evidence indicating the sponsor had stayed at her residence (family home) for a time following their engagement, whilst the sponsor specifically stated that he could not live with her at the time due to cultural reasons so he did not stay in the applicant’s residence overnight following the engagement ceremony, preferring to split his time between a hotel nearby the family home and hotels in Saigon when he travelled there for business.

4. On 31 August 2018, the applicant provided a response to the s.359A invitation which has been duly considered by the Tribunal. In summary, the response contends that the apparent inconsistencies were not correctly identified by the Tribunal, the apparent inconsistencies are not relevant to the review, and that inconsistencies in the evidence of the applicant and sponsor are in the main attributable to the personal characteristics of the applicant and the use of interpreting services (as have been previously outlined) and they do not undermine the credibility of the applicant. The Tribunal has carefully considered all of the submissions and evidence raised before, during and following the review hearing.

   Did the notice comply with the requirements in s.107?

5. Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

6. The Tribunal notes that an initial NOICC dated 27 July 2017 was sent to the applicant’s last known address with the Department (the sponsor’s address). A subsequent NOICC dated 6 September 2017 was despatched to the applicant’s current address located through Centrelink records. The Tribunal refers to this correspondence dated 6 September 2017 as ‘the NOICC’. No response to the NOICC was submitted by the applicant.  

7. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage the provisions of s.107 of the Act. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.

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

8. 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 sections 101(b) and 104 of the Act.

9. The delegate’s visa cancellation decision, which the applicant provided a copy of to the Tribunal, provides the following information. She applied for the Subclass 300 Prospective Marriage visa on 10 February 2012. On [date], a child of the sponsor was born to another woman in Vietnam, Ms Thi Binh Nguyen. The birth of this child was not declared in the Form 47SP visa application at Question 64 and the applicant did not notify the Department of a change in her circumstances prior to initial entry into Australia, contrary to s.104 of the Act in the view of the delegate. The Subclass 300 visa was granted on 12 September 2012 and the applicant arrived in Australia on 9 October 2012.

10. Further, the applicant applied for a combined Subclass 820 and 801 Partner visa on 17 December 2012 in Brisbane. At Question 64 of that visa application, the applicant did not declare the fourth child of the sponsor born on [date]. The Departmental delegate determined that the applicant provided an incorrect answer and failed to comply with s.101(b) of the Act. The applicant was subsequently granted the Subclass 820 temporary visa on 18 December 2012 and the Subclass 801 permanent visa on 4 December 2015.

11. On 21 March 2016, the Department learned of the birth of the sponsor’s child on [date] when an application for Australian Citizenship by Descent was lodged at the Australian Consulate-General in Ho Chi Minh City. The sponsor is listed as the father of the child in that application, DNA testing confirms this circumstance, and the sponsor sent email correspondence to the Department in 2016 confirming that he organised his engagement with Ms Thi Binh Nguyen on 10 July 2011 but due to misunderstandings and personality clashes they split up and he decided to sponsor another Vietnamese lady ‘in due course’. The aforementioned information appears to have triggered the issuance of the NOICC.

12. The applicant contends that she was unaware of the sexual relationship between the sponsor and Ms Binh Nguyen, and the birth of their child, at the time of her visa applications and for some years thereafter. Accordingly, it is submitted on her behalf, that she is an innocent victim of the sponsor’s promiscuous conduct and she has not transgressed either s.101(b) or 104 of the Act. For the following reasons, the Tribunal has serious concerns with the credibility of the applicant and the sponsor, not accepting the victim narrative submitted on her behalf.

13. As outlined above, numerous inconsistencies and vagary permeate the evidence submitted in support of the applicant. For example, the applicant gave initial oral evidence informing the Tribunal that she became aware of the sponsor’s child in 2014, initially separated from him in early May 2015 and “left for good” around June or July 2015 prior to the grant of the Subclass 801 visa. Subsequently she sought to retreat from this evidence to indicate she learned of the child in 2015 and remained in the relationship with the sponsor until 2016 (these matters being specifically stated in post hearing written submissions). The applicant’s evidence that she did not know how to inform the Department of her relationship breakdown prior to the grant of the Subclass 801 visa was vague and unconvincing.

14. The applicant’s outline of activities with the sponsor following their engagement ceremony on 25 June 2011 was inconsistent and vague. The Tribunal notes that the inconsistencies between her oral evidence and that of the sponsor regarding this period were raised with her pursuant to the post-hearing s.359A invitation. Her response to that invitation, seeking to deny the extent of inconsistency, and to minimise the relevance and weight of any inconsistency present, is not accepted as credible by the Tribunal for the following reasons. The Tribunal disagrees with the submissions of the representative that it has incorrectly identified inconsistency between the applicant and sponsor’s oral evidence regarding their post engagement activity. The Tribunal finds that they gave an inconsistent version of events surrounding whether they stayed in the same residence overnight following their engagement as previously outlined. This matter undermines the credibility of both the applicant and the sponsor in the view of the Tribunal. Further, for reasons previously expressed, the Tribunal does not accept that the applicant misunderstood the proceedings or that inconsistencies in her evidence do not undermine her credibility. Additionally, the Tribunal does not accept that matters of credibility are ‘irrelevant’ to the review as contended on behalf of the applicant. Rather, given the nature of the inconsistencies between the evidence of the applicant and the sponsor, they point to the parties being dishonest in their interactions with the Department and the Tribunal. Such matters of credibility, in the view of the Tribunal, are reasonably relevant to an assessment of whether the applicant failed to advise the Department of the updated circumstances concerning the birth of [Child 1].

15. The applicant’s attempt to disavow knowledge of the circumstances of the child of the sponsor and of her involvement in restaurant ownership in Darra were also unconvincing and vague. The s.359AA information raised with the applicant further outlines inconsistencies in her evidence submitted to the Department with her Subclass 300 visa application, regarding activities following her engagement, and that provided to the Tribunal on this topic. Following careful consideration, the Tribunal does not accept that confusion is the cause of such inconsistency given the general lack of credibility observed in relation to the applicant. For completeness, the Tribunal does not accept that jealously on behalf of the applicant, or her age, comprehension of English, alleged reliance upon others to enter into arrangements, or any other circumstance pertaining to her reasonably accounts for the aforementioned inconsistency in her evidence, vagary or defensive demeanour displayed.

16. The Tribunal finds it implausible, to the point of being fanciful and far-fetched, the contention that the applicant and sponsor became engaged to each other on 25 June 2011 in a large ceremony, with the sponsor then becoming engaged to Ms Binh Thi Nguyen in a similar ceremony on 10 July 2011, without the knowledge of the applicant. In particular, the written submission indicating the sponsor held an engagement ceremony with ‘Binh’ “…to ‘smooth over’ the fact the Sponsor did not intend to continue his relationship with her”, is not accepted by the Tribunal in light of the aforementioned credibility matters. That the applicant on several occasions gave initial oral evidence unfavourable to her position, then made ex-post facto attempts to diminish the strength of such evidence, reflects poorly upon her general credibility.

17. Considering the credibility issues cumulatively, the Tribunal forms the view that the applicant and sponsor participated in a contrivance in order to secure a visa outcome for the former. The Tribunal therefore places low weight upon the evidence and submissions (including by way of media articles and other documents) seeking to portray the applicant as an innocent victim of the sponsor’s conduct. It follows that the Tribunal places higher weight upon the matters which demonstrate a lack of credibility on the part of the applicant and the sponsor. Accordingly, the Tribunal is satisfied that the applicant was aware of the relationship between the sponsor and Ms Binh Thi Nguyen at the time of the Subclass 300 visa application and was aware of the birth of [Child 1] prior to the grant of that visa. The Tribunal further finds that the applicant did not notify the Department of a change in her circumstances prior to initial entry into Australia and she provided an incorrect answer in her onshore Partner visa application by failing to declare the existence of [Child 1]. Therefore, the Tribunal finds that there was non-compliance with s.101(b) and s.104 of the Act by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

18. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

19. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information;

    ·     the content of the genuine document (if any);

    ·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

    ·     the circumstances in which the non-compliance occurred;

    ·     the present circumstances of the visa holder;

    · the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

    ·     any other instances of non-compliance by the visa holder known to the Minister;

    ·     the time that has elapsed since the non-compliance;

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches; and

    ·     any contribution made by the holder to the community.

20. The correct information in relation to the change of circumstances for the applicant in relation to her answer to Question 64 in the Subclass 300 visa application, and with respect to the answer to Question 64 in her onshore Subclass 820/801 visa application, is that the sponsor has a fourth child, [Child 1], born on [date]. For reasons previously expressed, the Tribunal finds that the applicant was aware of this information at the relevant times and she should have declared it to the Department. These circumstances strongly weigh in favour of cancelling her Subclass 801 visa. The Tribunal notes that there is no circumstance in the present matter regarding the content of a genuine document and accordingly no weight is given to that prescribed circumstance.

21. The Tribunal forms the view that the decisions regarding the applicant being granted a Subclass 300 visa, immigration cleared, granted a Subclass 820 visa and granted a Subclass 801 visa were based wholly or partly on incorrect information. That is, that the applicant did not advise the Department of the birth of [Child 1] as previously outlined. Given that being in a genuine fiancée and spouse relationship, respectively, are critical requirements for grant of Subclass 300 and 820/801 visas, had the birth of Master Nguyen been known the applicant likely would not have been granted these visas and permitted entry into Australia. These circumstances weigh strongly in favour of cancelling the applicant’s Subclass 801 visa.

22. As previously outlined, the Tribunal finds that the applicant was aware of the relationship between the sponsor and Ms Binh Thi Nguyen, and the birth of their child, prior to the grant of the Subclass 300 and 820/801 visas. The Tribunal finds that the applicant and sponsor participated in a contrivance to secure a migration outcome for the former and that she deliberately chose not to declare the existence of [Child 1] to the Department. Following careful consideration, the Tribunal finds that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 801 visa.

23. The applicant submits that her present circumstances weigh against the cancellation of her visa. She contends that the marriage of her son to a woman with whom she has a strained relationship means she lacks family support if she returns to Vietnam. Given the serious credibility concerns developed by the Tribunal in relation to the applicant, it does not accept that she has such a difficult relationship with her son now which would see him abandon her if she returned to Vietnam or that her other extensive family membership group would fail to assist her in that country. It follows that the Tribunal does not accept the applicant would be plunged into poverty if she returns to Vietnam, in the manner advanced on her behalf including by way of the media article in this regard referred to above. Rather, the Tribunal forms the view that the applicant has embellished this aspect of her claims for the purposes of the review. The Tribunal accepts that the applicant has resided in Australia since 2012, is 61 years of age, has some family members in Australia (but less than in Vietnam), would not enjoy the same standard of living in Vietnam as she currently does in Australia, and plays a role in managing a restaurant in Darra (although the lack of persuasive evidence concerning this matter, combined with her own oral evidence indicating she has not made a contribution to the Australian community as she doesn’t know English, doesn’t drive and she stays at home, tends to diminish the gravity of this contribution). These matters weigh against cancelling her visa. However, on balance, the Tribunal finds that the present circumstances of the applicant, particular given her extensive family connections in Vietnam, weigh slightly in favour of cancelling her Subclass 801 visa.

24. The Tribunal has carefully considered the subsequent behaviour of the applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act. As outlined above, the Tribunal does not accept that the relationship between the applicant and the sponsor was continuing at the time of the Subclass 801 visa grant (including by way of them living separately and apart on a permanent basis) and notes this matter was canvassed with the applicant during the review hearing. The Tribunal prefers the initial spontaneous oral evidence of the applicant indicating the relationship concluded with her departing the sponsor’s residence around June or July 2015, to other evidence seeking to maintain the relationship was continuing past the time of this visa grant. Accordingly, the Tribunal finds that the applicant failed to comply with s.104 of the Act by not notifying the Department of a change in her circumstances, so that the answer to Question 77 in the combined 820/801 Partner visa application form (‘Has the relationship ceased?’) was incorrect in the new circumstances, prior to the grant of the Subclass 801 visa. The Tribunal finds that this circumstance weighs strongly in favour of cancellation of the applicant’s Subclass 801 visa. For completeness, the Tribunal notes that it is not satisfied the relationship between the applicant and the sponsor was other than a contrivance designed to secure a migration outcome. However, for the purposes of the review, the Tribunal finds that there are no other known instances of non-compliance and this prescribed circumstance is given no weight either in favour of, or against, cancellation of the applicant’s visa.

1. The fourth child of the sponsor was born on [date]. Accordingly, over six years have elapsed since the applicant’s non-compliance with s.104 of the Act. The applicant made the combined application for Partner Subclass 820 and 801 on 17 December 2012 and therefore around five and a half years has elapsed since the applicant’s non-compliance with s.101(b) of the Act. Following careful consideration, the Tribunal finds that the aforementioned passage of time weighs slightly against cancelling the applicant’s Subclass 801 visa. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal affords no weight to this prescribed circumstance.

2. The applicant contends that she has made a contribution to the community by way of recently part owning and working in a restaurant in Darra, Queensland. The Tribunal accepts this evidence, however, given persuasive evidence regarding this matter is scarce and considering the applicant’s own oral evidence regarding her limited contribution to the Australia community (described above), lower weight is afforded to this contribution than would otherwise be given. The applicant also contends that she plays a role in her community and has family relationships in the community (which are outlined above). Following careful consideration, the Tribunal finds that the aforementioned matters weigh moderately against the cancellation of her Subclass 801 visa.

3. While these circumstances must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

4. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention. As outlined above, the mandatory legal consequences of visa cancellation were canvassed with the applicant at the review hearing. If the applicant’s Subclass 801 visa is cancelled she will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. She may also be subject to s.48 of the Act which limits further specific visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to Vietnam. In the circumstances of the present review, the aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 801 visa.

5. There is no evidence before the Tribunal suggestive of any consequential visa cancellations pursuant to s.140 of the Act if the applicant’s Subclass 801 visa is cancelled. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of her visa. There is no evidence before the Tribunal suggesting that any international obligations would be breached as a result of the cancellation of the applicant’s Subclass 801 visa, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. For completeness, the Tribunal does not accept that the applicant is an elderly, uneducated woman without family protection in Vietnam such as to give rise to non-refoulement obligations. In any event, she could canvass such claims in an application for a protection visa but has not done so. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of her visa.

6. The Tribunal has considered all other relevant matters, including the degree of hardship that may be caused to the applicant and her family members if her Subclass 801 visa is cancelled. For reasons previously expressed, the Tribunal accepts that the applicant will not enjoy the same standard of living in Vietnam as in Australia if her visa is cancelled. However, the Tribunal is not satisfied that any undue hardship would be experienced by the applicant given her extensive family connections in Vietnam. The Tribunal notes the applicant advised she had an injury to her arm, however as there is no medical evidence before it to suggest there is an ongoing problem, she advised that Centrelink payments ceased with respect to the injury, and she is able to work, the Tribunal finds that no undue hardship on account of medical reasons would be experienced by the applicant if her visa is cancelled. The Tribunal accepts that there would be some upset for the applicant, her family members in Australia and her friends in Australia if her visa is cancelled. This is moderated by the ability for the applicant to reunite with the majority of her family in Vietnam if she returns to that country. On balance, the Tribunal finds the aforementioned matters weigh slightly against the cancellation of the applicant’s Subclass 801 visa.

7. The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 801 visa. For reasons previously expressed, the Tribunal does not accept the applicant was an innocent victim of the sponsor’s conduct, rather it finds that she participated in a contrivance designed to secure a migration outcome. In doing so there was non-compliance with s.101(b) and s.104 of the Act by the applicant in the way described in the s.107 notice. On balance, following much consideration, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.

8. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 801 Partner (Residence) visa.

   K. Chapman
   Member

   
   

   ATTACHMENT – Migration Act 1958 (extracts)

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)      purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)           no incorrect answers are given or provided.

   104Changes in circumstances to be notified

   (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

   (4)Subsection (1) applies despite the grant of any visa.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)      giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)      visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

   108Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

   109Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.