Chou (Migration) - [2018] AATA 1055

Chou (Migration) [2018] AATA 1055 (9 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Master Sebastian Chou
CASE NUMBER:  1717032
DIBP REFERENCE(S):  BCC2017/2688341
MEMBER:Kira Raif
DATE:9 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Partner) visa.

Statement made on 09 March 2018 at 11:25am

CATCHWORDS
Migration – Cancellation – Partner (Residence) (Class BS) – Subclass 820 (Partner) – Visa applicant is a minor child – Unable to stay in Australia if his mother’s visa is cancelled – Degree of hardship – Spent entire life in Australia – Close relationship with Aunt in Australia – Financially supported by family in Australia and through Centrelink – Child’s best interests – Father lives in Cambodia – Benefit of being with both parents in Cambodia – Access to adequate health care in Australia
LEGISLATION
Migration Act 1958, ss 109, 140, 359A
Migration Regulations 1994, r 2.08
CASES
MIAC v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 28 July 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).
The visa applicant is a minor child born in August 2014. His mother made an application for a partner visa and was granted the temporary visa in June 2012. The applicant was included in the mother’s application for the permanent visa upon birth and the visa was granted in September 2014. In May 2017 the mother was issued with the Notice of Intention to Cancel her visa under s.109 and the visa was subsequently cancelled on 28 July 2017. The visa held by the applicant was cancelled on the same day under s.140 of the Act as a consequence of the cancellation of the mother’s visa. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 18 January 2018 to give evidence and present arguments. The applicant’s mother gave evidence on behalf of the applicant. The Tribunal also received oral evidence from a number of witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a visa because his mother was granted the visa, in accordance with r.2.08 of the Migration Regulations 1994 (the Regulations). The visa held by the applicant’s mother Ms Chandy Chou was cancelled on 28 July 2017 and the Tribunal affirmed that cancellation on 8 February 2018. This information was the subject of the Tribunal’s s.359a letter to the applicant and the Tribunal has considered the applicant’s written submissions in response.
In his written submission to the Tribunal of 16 January and 22 February 2018 the applicant argues that the delegate incorrectly identified the statutory provision under which he was granted the partner visa and notes that he may have continued to hold the Subclass 801 visa. The Tribunal is mindful that the decision under review is the cancellation of the temporary visa. It is not in dispute that the applicant held the partner visa which he was granted as a newborn child and he was added to his mother’s application. Whether or not the applicant may be the holder of another visa, or his entitlement to the bridging visa, are not matters for this Tribunal.
The Tribunal finds the applicant is a person to whom s.140(1) does not apply because he was not granted a visa on the basis of being a member of the family unit of his mother. The Tribunal finds that the applicant is a person who held a visa only because Ms Chou held a visa. As Ms Chou’s visa was cancelled, the Tribunal finds there are grounds for cancelling the applicant’s visa under s.140(2) of the Act.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The purpose of visa grant to the applicant is to enable him to be with his mother. At the time of this decision, the mother’s visa has been cancelled. The applicant is unable to fulfil the purpose of the visa by remaining in Australia if his mother is not able to remain in Australia.
The extent of compliance with visa conditions
The Tribunal is not aware of any non-compliance with visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant was born in Australia and has lived his entire life in Australia. The Tribunal acknowledges that he may be used to the Australian way of life and may not speak another language fluently. However, given his age, the Tribunal is of the view that the visa applicant will have no difficulty adapting to a different environment or a new country or learning another language. The Tribunal is mindful that the applicant’s father resides in Cambodia while his mother is no longer a holder of a permanent visa and has no right, at present, to remain in Australia on a permanent basis.
The applicant told the Tribunal (through his mother who gave evidence on his behalf) that the child’s father never provided financial support to the child and Ms Chou stated she was not sure how she would survive in Cambodia. The Tribunal is mindful that while in Australia, the family had financial support from various other sources, including Centrelink, so there may simply have been no need for the child’s father to provide financial support. The family’s circumstances may well be different if the family were to live in Cambodia and the child’s father may have better capacity to provide financial support to the family.
Ms Chou told the Tribunal that the child’s father, Mr Ben, does not care for her or the child. However, the Tribunal is mindful that she did sponsor Mr Ben for the visa and continued to do so until as recently as July 2017. Ms Chou’s evidence is that she would have appealed the decision to refuse the visa, suggesting there is still an ongoing relationship. The Tribunal does not accept Ms Chou’s claim about Mr Ben’s lack of support or indifference toward the child. The Tribunal has formed the view that if the applicant were to leave Australia, he would have parental support from both his father and his mother.
Ms Chou told the Tribunal about the close relationship her son has with her sister, stating that her sister’s family provide a stable environment for the child. The Tribunal accepts that evidence and accepts that it may cause some hardship if the child is removed from that environment.
Circumstances in which ground for cancellation arose
The ground for cancellation arose because the visa held by the applicant’s mother was cancelled and the applicant held the visa because his mother held the visa.
Past and present conduct of the visa holder towards the department
Nothing adverse is known about the applicant’s conduct towards the Department.
Whether there are mandatory legal consequences
If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make further visa applications in Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention. The applicant may be subject to an exclusion period in relation to future visa applications.
Whether there would be consequential cancellations under s.140
The cancellation of the applicant’s visa is itself a consequential cancellation. There would be no consequential cancellations as a result of this cancellation.
Whether any international obligations would be breached as a result of the cancellation
There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The Tribunal is mindful that the applicant is eligible to apply for a protection visa if she believes Australia owes her protection obligations. As such, the Tribunal does not consider that Australia’s non-refoulement obligations would be breached.
The Tribunal has considered the best interests of the applicant, who is a minor child. These have been addressed in some detail in relation to the cancellation of his mother’s visa and the Tribunal’s reasoning, which is equally applicable here, is reproduced below.
Ms Chou claims that if she is to leave Australia, her son will travel with her and this would cause a huge upheaval in his life. The Tribunal acknowledges that the child was born in Australia and has not lived in any other country. However, the child is aged three and a half and, at that age, he would have little difficulty adapting to a new environment or learning a new language (if there is a need for it, given the child’s communication with his mother). The Tribunal is also mindful that the child’s father resides in Cambodia and the mother no longer has a visa to remain in Australia. If the child is to leave Australia with his mother, he will have the benefit of both parents, which he does not have in Australia, and that may be of benefit to the child’s development. The Tribunal is of the view that the child’s best interests would be served by having both parents and that it would be contrary to the child’s best interests for the child to remain in Australia given that neither of his parents is a holder of Australian visas.
Dr Kwok states in her report submitted to the Tribunal that in this case, the child’s move to Cambodia may affect the child’s access to education, healthcare and economic opportunities but there is little probative evidence to satisfy the Tribunal that such opportunities would not be available to the child in Cambodia and no reference in Dr Kwok’s report to any probative evidence on which her observations are based. The Tribunal is not satisfied on the evidence before it that the child will not have access to adequate education and healthcare in Cambodia. The report also suggests that there is a culture in Cambodia where sexual infidelity by women is criticised. Even if that is the case, it is unclear to the Tribunal how the community in Cambodia would be aware of the applicant’s infidelity, given that the applicant would return to Cambodia with the child of her relationship with Mr Ben and will have the opportunity to live with the father of her child. The Tribunal is not satisfied that the community in Cambodia would be familiar with the applicant’s visa issues or experiences in Australia unless the applicant chooses to disclose that information.
Dr Kwok notes that the child is being raised in a safe environment in Australia while if his mother returns to Cambodia, she may suffer from depression and mood disturbance and that would affect the child’s growth. The Tribunal is mindful that the mother’s visa has now been cancelled and unless she is granted another visa, she may be required to leave the country. The Tribunal does not accept on the evidence before it that the applicant’s mother will be unable to access relevant help from health professionals in Cambodia. Ms Chou told the Tribunal in oral evidence that women in Cambodia cannot access healthcare and that mental health is not covered by the health system in Cambodia, but she presented no probative evidence to support these claims and the Tribunal is not required to accept these uncritically. Ms Chou claims healthcare in Cambodia is not the same as it is in Australia particularly in relation to mental health, but the issue before the Tribunal is not whether healthcare in Cambodia is comparable to Australia but whether it is adequate, and Ms Chou has not satisfied the Tribunal that she would not have access to adequate healthcare in Cambodia. Thus, the Tribunal does not accept that the family will be unable to access requisite health care in Cambodia and the Tribunal does not accept the child’s well-being would be adversely affected as a result.
Generally, the Tribunal is not satisfied the applicant’s mother would not have adequate mental health support, or other adequate health care, in Cambodia. The Tribunal is not satisfied that the mother’s health, including mental health, would be adversely affected by the cancellation of her visa and the Tribunal does not accept that the child’s interests would be affected as a result of the applicant’s health.
Dr Kwok states in her report that Mr Ben’s level of support and involvement in the child’s life is questionable given his current lack of interest. The basis for such an observation is unclear (and to the extent that the information is supplied by Ms Chou, the Tribunal does not consider her evidence probative because the Tribunal has formed the view that she is not a person of credibility). The Tribunal is mindful that on Ms Chou’s evidence, Mr Ben sought the partner visa on the basis that he wanted to take care of the child. The child’s mother and Mr Ben had gone to considerable trouble and expense to enable Mr Ben’s migration to Australia, including substantial application fees, legal fees and DNA testing. The psychological report refers to regular contact between Mr Ben and the child. On Ms Chou’s evidence, Mr Ben’s visa application was on foot until as late as 31 July 2017. The Tribunal considers that in such circumstances, the assertion that Mr Ben does not plan to provide any support or have any involvement in the child’s life and has no interest in the child to be baseless. The Tribunal is mindful that Ms Chou provided the same oral evidence to the Tribunal but when the Tribunal questioned her about her sponsorship and the information supplied in that sponsorship, the applicant’s evidence became evasive. Ms Chou was unable to explain to the satisfaction of the Tribunal why she initially sponsored Mr Ben for the visa claiming to be in a committed and a loving relationship and to be very happy with that relationship, have continued to sponsor him and why now when it became more useful for her visa to claim no support from Mr Ben, her evidence has become entirely different. The Tribunal is not satisfied Ms Chou told the truth about her relationship with Mr Ben, including the claimed lack of support, and Mr Ben’s relationship with the child. The Tribunal is of the view that if the child were to return to Cambodia, he will have support from his father, as well as his mother.
Ms Chou told the Tribunal that the child is used to living in Australia and would find it difficult to adapt to life in Cambodia, but the Tribunal is of the view that at the age of three and a half, the child should be able to adapt to the new environment without much difficulty.
The Tribunal does not accept that the child will be denied various opportunities by relocating to Cambodia. The Tribunal does not accept that Ms Chou would be denied access to adequate healthcare if she does have any condition that would affect her ability to care for the child, and the Tribunal does not accept that any claimed medical condition would prevent Ms Chou from providing care to the child. The Tribunal does not accept that the child’s father has no interest in the child and will not care for, and support, the child. The Tribunal acknowledges that the child now lives in a safe environment and may have a close relationship with his aunt and uncle, but the Tribunal is mindful that if the child were to live in Cambodia, the child will have access to both parents, which might be of benefit to the child.
The Tribunal acknowledges and accepts the evidence of the child’s aunt that they treat the child as their own but the Tribunal does not consider that this relationship needs to cease even if the child were to leave Australia. There will be opportunities for visits and electronic communication. There is also no guarantee that the child will continue to live with his aunt in the future, so that the aunt may not necessarily have a chance to have such a close relationship with the child in the long-term future. As for the child being ‘devastated’ by his separation from his aunt, as his mother suggests, the Tribunal is not satisfied on the evidence before it that the child will be so adversely affected at the age of three and a half. The Tribunal has formed the view that the best interests of the child do not require his presence in Australia and would not be adversely affected by the cancellation of the visa. The Tribunal is of the view that the child’s best interests may be served if he were to live with his parents and the Tribunal notes that neither parent holds, at present, the permanent visa to remain in Australia.
There is no suggestion that the applicant or his mother had suffered family violence. The Tribunal acknowledges the applicant’s subclass 801 visa remains unresolved although the applicant concedes he may not be entitled to that visa.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa because his mother’s visa was cancelled. The applicant can no longer fulfil the purpose of his stay in Australia. The Tribunal acknowledges that some hardship may be caused if the visa is cancelled but the Tribunal has formed the view that at his age, the child’s best interests are to remain with his parents and neither of the child’s parents have a permanent visa to remain in Australia. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Partner) visa.
Kira Raif
Senior Member