Dao (Migration)

Dao (Migration) [2019] AATA 3707 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Duy Bao Dao
CASE NUMBER:  1821268
DIBP REFERENCE(S):  BCC2017/2974958, CLF2011/100006
MEMBER:Hugh Sanderson
DATE:29 May 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 801 (Spouse) visa.
Statement made on 29 May 2019 at 1:28pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect answers in visa application – genuine and exclusive relationship – previous marriage and child not disclosed – no divorce finalised from first wife – sponsor was not aware of his previous marriage – false Single Status Certificate from Vietnam – late advice of current relationship with new partner – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 97-101, 107-109, 359
Migration Regulations 1994, 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 801 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had provided incorrect answers in his visa application. The issue in the present case is whether that ground for cancellation is made out and, if it has, whether the visa should be cancelled.

Background

The applicant is a citizen of Vietnam and is currently 38 years old. He first entered Australia on 30 August 2009 holding a Student visa. He then applied for and was granted a Subclass 820 Partner (Temporary) visa on 24 September 2012 and was subsequently granted a Subclass 801 Partner (Residence) visa on 17 September 2013. He was sponsored in his Partner visa application by Thi Bich Phuong Nguyen.
When he applied for the Partner visa, the applicant stated in the application that he had never been married or in a de facto relationship before and did not disclose that he had any children or any other dependents. He claimed that he met the sponsor over the Internet in March 2005 and met her in person in Vietnam on 18 May 2008. In February 2009 the sponsor’s relationship with her second husband ended. The sponsor travelled to Vietnam in July 2009 and they claim to have expressed their love for each other at that time. It was claimed that when the applicant travelled to Australia in 2009 he commenced living with the sponsor and her children.
The applicant and the sponsor were married on 11 October 2010 in Hamilton, NSW. In the marriage certificate, the applicant’s conjugal status was stated to be never validly married. The conjugal status of the sponsor was stated to be divorced.
The Department received information which indicated the applicant had provided incorrect information when applying for the Partner visa. The Department wrote to the applicant on 21 March 2018 with a Notice of Intention to Consider Cancellation Under Section 109 of the Migration Act.
The Department noted that the applicant had provided the following information in respect of his Partner visa application:
·On page 9, to the question “Have you been married before?” the applicant answered “No.”
·On page 13, the applicant was required to provide details of all his children and he declared “N/A”.
·On page 19, to the question “Are either of you still legally married to another person?” the applicant answered “No”.
·The applicant provided a marriage certificate showing he married the sponsor on 11 October 2010.
·The applicant provided a statutory declaration in which he declared that he had never been married nor lived in a de facto relationship with anybody before marrying his sponsor.
·When interviewed by the Department the applicant provided details of the development of the relationship.
Investigations by the Department provided the following information:
·The applicant had previously married a woman in Vietnam which took place on 9 October 2005;
·The applicant has a child of this relationship who was born on 19 August 2006;
·The applicant remains married to his wife in Vietnam and they have not been divorced; and
·The single status certificate provided in support of the Partner visa application was fraudulently obtained.
The applicant responded to the notice by providing information in support of his claims that he had been in a genuine relationship with his sponsor. He provided character references. He provided a statement dated 29 March 2018 where he made the following claims:
·He first met the sponsor when he was separated from his wife but he did not tell the sponsor that he was married;
·He applied for a divorce in Vietnam in 2009, but did not follow it up and did not receive any divorce certificate;
·After he got married to the sponsor, he called his first wife and told her that he had got married and told her to take care of herself and their child;
·His first wife did not indicate to him that he was still married to her;
·Even if they were not married, the relationship between himself and the sponsor was genuine and they were in a de facto relationship;
·He arranged for his parents to get the Single Status Certificate from the authorities in Vietnam which they did without any problems; and
·He will obtain the divorce certificate within eight weeks.
The applicant provided a further statutory declaration dated 14 May 2018 where he made the following claims:
·He acknowledged the errors in the initial application and provided what he considered was the correct information;
·Although it was alleged that he had provided a bogus Single Status Certificate, the applicant said that he had never provided such document;
·The basis of the Department’s decision was that he was in a genuine and continuing relationship with the sponsor and even if he was not married, they were in a de facto relationship;
·It was incorrect when he had stated that he filed an application for a divorce in Vietnam, but he had merely given a friend the task to do this and paid him money to do so;
·He apologised for providing incorrect information to the Department;
·He is now in a relationship with Thi Lan Anh Chu who is not an Australian permanent resident, but they have a child, Kristina, who was born on 30 April 2018 and is an Australian citizen;
·The applicant has worked in Australia and has always complied with Australian laws;
·He is actively involved in the Buddhist Association and does charity work; and
·If his visa was cancelled, he would not have the opportunity to care for his child and this would adversely affect her rights.
The delegate who considered the application noted the following:
·The applicant provided false information by saying that he was single and by failing to disclose he had a child;
·By not providing this information it would appear that the relationship between himself and the sponsor was never genuine; and
·The applicant intentionally provided incorrect information to gain the visa to which he otherwise may not have been entitled.
The delegate concluded that as the applicant had provided incorrect answers in his visa application he had failed to comply with s.101(b) of the Act. The delegate then considered whether the visa should be cancelled. The delegate took into account the information provided by the applicant and noted the following issues:
·The applicant’s marriage to his sponsor was invalid as he was married at the time of that marriage and therefore the marriage certificate is a bogus document;
·The applicant based his application for a Partner visa on being the spouse, as defined in s.5F of the Act, of the sponsoring partner and not her de facto partner, as defined in s.5CB of the Act;
·On the evidence before the delegate, it appeared that the visa was granted on the applicant misrepresenting his relationship status with the sponsor raising a concern as to the credibility of all information provided in support of that application;
·The decision to grant the applicant the Partner visa was based in part on the incorrect information provided by the applicant and he would not otherwise have been entitled to the grant of that visa;
·The personal circumstances of the applicant, including the new claim that he had asked a friend to apply for the divorce on his behalf, did not adequately explain why he provided incorrect information in his application;
·The applicant claimed to be in a relationship with a new partner who, at the time, was being sponsored for a Partner visa by a different person and the applicant and his new partner have a child together;
·The citizenship application of the applicant and his new partner’s daughter is pending and will be assessed on its merits;
·There is always some hardship caused when families are required to depart Australia;
·There appears to have only been limited contribution to the Australian community made by the applicant;
·No dependents’ visas would be cancelled if the applicant’s visa is cancelled; and
·If he was required to live in Vietnam, as the applicant’s child, Kristina, is only three months old this would not cause her any distress.
Taking all these matters into account, the delegate found that the grounds for cancelling the visa outweighed the reasons not to cancel and declined to exercise the discretion not to cancel the visa. Accordingly, the applicant’s Subclass 801 Partner (Residence) visa was cancelled.

Information to the Tribunal

The applicant provided further information to the Tribunal including the following:
·Statutory Declaration by the applicant;
·Receipt of divorce application between the applicant and his first wife in Vietnam;
·Divorce Order dated 6 February 2019 where the Federal Circuit Court of Australia pronounced the divorce between the applicant and his second wife, finding the marriage was proved and that there were no children of the marriage to whom s.55A(3) of the Family Law Act applied;
·Evidence of the applicant’s employment;
·Statutory Declaration of the applicant’s current partner, Ms Chu;
·Report from Dr Lowy, clinical psychologist, dated 5 March 2019; and
·Statutory Declarations by friends of the applicant and the sponsor in support of the application including Thi Phuong Thao Do, Ngoc Long Trinh, and Hassam El-Kurdi.
The applicant appeared before the Tribunal on 13 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Chu and Dr Lowy. Other witnesses were present to give evidence including Mr El-Kurdi, Mr Trinh and Ms Do, however the applicant’s agent said that they would not be called to give evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing with Mr Poynder of counsel.
The Tribunal commenced the hearing by explaining to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. If he required further time, he could request an adjournment.

Information of the applicant

The applicant provided details of where he had been living. He said that he first started living with Ms Chu in early 2017. He could not be precise as to when this was, but said that it was before Tet in 2017 (which fell on 28 January 2017) and believed that it was either in January or February 2017 or maybe even November or December 2016. He said that after that time he was living with Ms Chu and two other people, Duc and Huong, who were a couple. He provided details of his work in Australia.
The applicant said that he travelled to Vietnam in 2014 to visit his mother. In 2016 he returned to Vietnam for a holiday after he had sold his bakery business and wanted a break and to visit his family. He said that his mother and three sisters continue to live in Vietnam. He said that his daughter from his first marriage is currently 12 years old. He said that he did not have much contact with her but when he was in Vietnam in 2016 she stayed with his mother for three or four days at the same time that he was staying with his mother. He said that his daughter lives with her mother, but he could not provide any further details of his daughter’s or first wife’s situation. He said that he sends money to his daughter for birthdays and on holidays such as Tet. He said that he does not have much contact with his daughter but would call her on her birthdays. He said that he had no contact with his daughter while he was claiming to live with his second wife.
The Tribunal asked the applicant why he had provided false information by failing to disclose that he was married and had a child living in Vietnam when he applied for his Partner visa. The applicant said that he applied for the visa with his second wife and did not want to lose her love of him. He said that as they were in love in 2007 he did not want to damage the relationship by saying that he was already married. He claimed that when he and his second wife worked together he told her that he had lived with another person and she had said that she did not care about the past and he accepted that.
The Tribunal indicated that it was not plausible that the applicant would not tell his second wife that he had been married and had a child when his second wife had been married on two previous occasions and had three children from those relationships. She had also indicated that she did not care about the past so there was no reason why he would not have been able to tell her of his first marriage and the fact that he had a child. The applicant said the state of his mind was that he did not want to lose her.
The applicant confirmed that the three children of his second wife lived with them when they were living together. He said that all the children were treated by them as children of their family.
The Tribunal asked the applicant about the divorce application with his second wife that he made. He confirmed that he filed the application after obtaining legal advice. He said that as he knew he had a visa problem and had another partner he wanted to apply for a divorce to get all the paperwork done. He said that he didn’t want to repeat the same mistake with his current partner.
The Tribunal noted that in the divorce order it was found that there were no children of his relationship with his second wife. This did not appear to be correct as his second wife had three children who were treated by both parties to the marriage as children of their family. It appeared, therefore, that the applicant had provided false information to the Federal Circuit Court when he applied for this application. The Tribunal asked the applicant to provide an explanation for this, however, on the advice of Mr Poynder, the applicant declined to answer.
The Tribunal asked the applicant why he applied for a divorce and provided information to the Federal Circuit Court that his marriage to his second wife was valid when he was aware that the marriage was invalid as he remained validly married to his first wife at the time of that marriage. A discussion took place with no answer being given by the applicant and then on the advice of Mr Poynder, the applicant declined to answer.
The applicant said that the person who was sponsoring Ms Chu for her Partner visa, Mr Vuong, lived about five minutes away from their Bankstown home. He was not sure when Ms Chu and Mr Vuong stopped living together, but believed that it was in about mid-2016. He was not sure if Ms Chu had any continuing contact with Mr Vuong.
The applicant said that Mr Trinh was aware that he and Ms Chu were living together from early 2017. The Tribunal explained to the applicant the process under s.359AA of the Act set out above. The Tribunal put to the applicant a letter from Mr Trinh dated 13 November 2017 which Ms Chu had provided to the Department in support of her Partner visa application. This stated that he was aware that Ms Chu and Mr Vuong were living together in her rented property and that there was a further lease which would start on 13 November 2017 and would be ongoing for a six-month period. The Tribunal explained to the applicant why this information was relevant.
On the advice of Mr Poynder, the applicant declined to answer. It was requested that the information be put to the applicant pursuant to s.359A of the Act. Other information that the Tribunal had regarding the application would also be put to the applicant pursuant to s.359A of the Act.
The applicant said that he visited the Buddhist temple in Bankstown about twice a month. He said that he usually goes with Ms Chu. He said that he did not know if Ms Chu goes to the temple with any other people. He said that Ni Su Thich Bao Troung was an abbot at the temple. He said that the abbot knew that he and Ms Chu were in a relationship and had been living together since the beginning of 2017. He could not explain why the abbot would have provided a letter dated 13 November 2017 saying that Ms Chu and Mr Vuong were a happy couple and love each other.
The applicant said that Hassam El-Kurdi was a friend of his. He said that he was a friend of his before he started his relationship with Ms Chu. He could not explain why Mr El-Kurdi had provided a letter dated 28 November 2017 claiming that he had leased a holiday rental property in September 2017 to Ms Chu and Mr Vuong or why he would say that they are of good character who at all times show respect and honesty.
The applicant said the sponsor’s mother and brother continue to live in Vietnam. He said that she did not have any relatives living in Australia. He said that he did not have any relatives who live in Australia.

Information of Ms Chu

Ms Chu provided details of where she had been living. She said that she stopped living with Mr Vuong who had sponsored her for a Partner visa at the beginning of 2016. She said that she started living with the applicant at the beginning of 2017, but could not be any more precise than this.
Ms Chu said that her mother and brother live in Vietnam. Her brother is studying and her mother has a wholesale clothes business.
Ms Chu said that she sometimes goes to the Buddhist temple with the applicant and also sometimes with her friends. She said that the last time she attended the temple with Mr Vuong was at the end of 2016. She said that she had not attended the Buddhist temple after that time with Mr Vuong and only went with him on one or two occasions when they were living together.
The Tribunal asked Ms Chu what discussions she had had with the applicant about her Partner visa application. Ms Chu said that they did not talk about their former partners. She said that she could not recall what happened with the application, she only knows that it was refused in 2017. The Tribunal put to Ms Chu that if she was claiming to live with and be in a genuine relationship with the applicant and they provided each other the emotional support which would be expected in a genuine relationship that she would have discussed with him her Partner visa application to be able to live in Australia. She said that she did not talk about her former relationship. The Tribunal noted this but asked what she discussed with the applicant about her then current application before the Department. She said that it was just for the purpose of paperwork that she was putting things to the Department. She said that she could not remember if she talked to the applicant about the application before the Department.

The Tribunal asked Ms Chu what documents she had provided to the Department in support of her application for a Partner visa. On the advice of Mr Poynder, Ms Chu declined to answer.
The Tribunal noted that Ms Chu had said that she had only attended the Buddhist temple with Mr Vuong on one or two occasions and never after the end of 2016. The Tribunal asked Ms Chu why the abbot of the Buddhist temple would have provided a statement dated 13 November 2017 which said that he sees Mr Vuong and Ms Chu at the temple and sees that they are a happy couple and love each other. On the advice of Mr Poynder, Ms Chu declined to answer.
The Tribunal asked Ms Chu why Mr Trinh would have provided a statement dated 13 November 2017 claiming that she and Mr Vuong were renting a property together and had rented that property starting on 13 November 2017 and ongoing for six months when she was claiming she had not been living with Mr Vuong since the beginning of 2016. On the advice of Mr Poynder, Ms Chu declined to answer.
The Tribunal asked Ms Chu why Mr El-Kurdi would have provided a statement dated 28 November 2017 claiming that he had leased a holiday rental property to her and Mr Vuong for the period 29 September 2017 to 1 October 2017 when she was now claiming that she was not in a relationship with Mr Vuong. On the advice of Mr Poynder, Ms Chu declined to answer.

Information of Dr Lowy

Dr Lowy gave evidence by way of telephone link. Dr Lowy said that she did not have much professional contact with Vietnamese families, saying that she had only seen one or two other Vietnamese clients. She said that she had not seen the applicant or Ms Chu at any other time. She said that she believed that Vietnam was a third world country and it would be difficult for anybody to live there. She based this opinion on her general knowledge and what had been told to her by some Filipino clients. She said that she had never been to Vietnam.
Dr Lowy said that she believed the applicant talked to his child who was living in Vietnam several times each year. She said that she was not able to provide an opinion about this child or how her separation from the applicant affected her development as this would depend on many things, including whether her mother had re-partnered and other factors which she did not know.
Dr Lowy said that it was important for the development of the child that they have the love and care of both their parents. She said that she believed that if the applicant and Ms Chu returned to Vietnam with their daughter and gave her the love and affection she believes they give to her in Australia she will be able to develop appropriately.

Divorce application

The applicant’s agent, Janice Vu, wrote to the Tribunal on 11 April 2019 acknowledging that she had given the applicant advice in respect of his family law matters. Ms Vu stated that in March 2018 the applicant sought legal advice from them in light of the Department’s notification of intention to cancel his visa and wanting to end his marriage to the sponsor. Ms Vu claimed that she gave him incorrect advice that he should apply for a divorce. She was aware of the full background of the applicant’s case and the fact that he remained married to his wife in Vietnam at the time he married his sponsor. She acknowledged that she was aware that the children of the sponsor would be considered children of the marriage and incorrectly answered “No” when she prepared the application online.
Ms Vu stated that after this issue was raised during the hearing she obtained advice from a family law expert who confirmed the application for the divorce was the wrong procedure and that an application for a degree of nullity should have been made. Steps had now taken place to set aside the divorce decree and apply for a decree of nullity of marriage.
Ms Vu apologised for providing the incorrect advice to the applicant. She argued that the applicant should not be held responsible for providing incorrect information in respect of that divorce application.

Response to s.359A letter

The Tribunal wrote to the applicant on 29 March 2019 pursuant to s.359A of the Act. In that letter, the Tribunal referred to the Department’s decision to refuse the Partner visa application of Thi Lan Anh Chu and information provided by witnesses in support of that application. The Tribunal explained the reasons why this information would be a reason to affirm the Department’s decision. The applicant was invited to comment on or respond to this information by 12 April 2019. An extension of time was provided for the applicant to respond to the information.
The applicant provided a statutory declaration dated 11 April 2019. In that statement, the applicant made the following claims:
·He started living with Ms Chu in January 2017 and he had never personally known her husband, Mr Vuong, who sponsored her for her visa;
·It was the intention of the applicant and Ms Chu that when he obtained his citizenship he would sponsor her as his partner for a visa to remain in Australia;
·He first met Mr Vuong after he took Ms Chu to her lawyer after she had been refused her Partner visa on 24 April 2018 and he asked Mr Vuong to withdraw all his paperwork as he would now be sponsoring Ms Chu and he agreed to do this;
·The applicant’s sponsor, Ms Nguyen, had threatened to cause him trouble with the Department, asking him why she bothered sponsoring him when she could have sponsored somebody else and would have got $50,000 or $60,000;
·When the Department contacted the applicant in June 2017 advising him that his invitation to a citizenship ceremony was withdrawn this caused him great concern and worry and he had also been advised that Ms Nguyen had reported him to the Department as being previously married;
·As they both had their own migration issues, the applicant and Ms Chu decided to look after their own affairs and not be involved in each other’s matters;
·When their child, Kristina, was born she was an Australian citizen as the applicant held the right to reside permanently in Australia at that time;
·The applicant had in 2017 taken steps to divorce his first wife in Vietnam and provided a series of emails dated from 3 August 2017 to 4 August 2018 asking a friend in Vietnam to assist him in obtaining a divorce;
·The applicant was not aware that the people who provided statements in support of his application had also provided statements in support of the claim that Ms Chu was still in a relationship with the sponsor of her application;
·He never read the decision refusing Ms Chu’s visa as he does not read English;
·The applicant was never involved in the preparation of any documents in support of Ms Chu’s visa application because he was concerned about his own immigration issues and did not provide any help to Ms Chu;
·The applicant denied being complicit in any way in the provision of false information provided by witnesses, who also provided documents in support of his application, in support of Ms Chu’s visa application;
·The applicant is deeply regretful that he provided false information when applying for his Partner visa;
·The applicant has now made full disclosure of the true facts of his life and he believes that he would have been granted a Partner visa on the basis of his de facto relationship with Ms Nguyen if he had provided the correct information;
·The applicant has worked hard in Australia and tried to contribute to the Australian community and supports his current partner and their child;
·His child, Kristina, is an Australian citizen and should be able to live in Australia;
·The applicant could not provide for his partner and child if he were required to return to Vietnam and has no one to support him in Vietnam;
·Ms Chu has said that if she and the applicant are required to return to Vietnam she would want Kristina to stay in Australia without them;
·Ms Chu is pregnant again with their second child.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 of the Act as set out in paragraph 7 above.
The Department’s allegation was that the applicant provided incorrect information when he claimed that he had not been previously married and did not have a child at the time of the application. The Department alleged further that the applicant provided incorrect information when the applicant provided the marriage certificate of himself and the sponsor as this was not a valid document as it had been obtained by providing false information when the applicant claimed that he had never been validly married and was not married at the time he entered into the purported marriage with the sponsor.
The applicant has now acknowledged that he provided incorrect information to the Department when he claimed in his application that he had not previously been married and that he did not have a child. The applicant has acknowledged that at the time of the application he was legally married to Thi Phuong Doan and that he had a child of that relationship, Phuong Tram Anh Dao, who was born on 19 August 2006.
The applicant has acknowledged that the marriage certificate provided in support of the Partner visa application is a bogus document. The applicant has acknowledged that in obtaining the marriage certificate he falsely claimed that he had never been validly married and was not married at the time of his marriage to the sponsor.
For these reasons, the Tribunal finds that there was non-compliance with s.101 of the Act by the applicant in the way described in the s.107 notice.

Should the visa be cancelled?

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).
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. The Tribunal has considered these prescribed circumstances and other issues when considering whether to exercise the discretion to cancel the applicant’s visa.
While these factors 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 Procedures 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.

The correct information

The correct information was that the applicant was married at the time of the application and had not made any application to divorce his wife at the time of the application. He had a child from his marriage who he had not disclosed to the Department in the application.

The contents of the document

The applicant provided a marriage certificate in support of the Partner visa application. This was to provide evidence that the applicant and the sponsor were validly married to enable an assessment of the Partner visa on the basis of being in a spousal relationship as defined in s.5F of the Act.
The marriage certificate is a bogus document because it was issued due to false information provided by the applicant when obtaining that certificate. The applicant falsely claimed that he was not married and was free to marry under Australian law. The applicant at the time of the issuing of the marriage certificate was still married to his wife in Vietnam and had not taken any legal steps to divorce his wife.

The likely effect on the decision to grant the visa if the correct information had been provided

The applicant applied for the visa on the basis of his marriage to the sponsor. The application was, therefore, based on the applicant being in a spousal relationship as defined in s.5F of the Act. It is argued on behalf of the applicant that if the correct information had been provided then the application would have been assessed on the basis of the parties being in a de facto relationship as defined in s.5CB of the Act and, based on the assessment made by the Department in the current application, the applicant would have satisfied the criteria of being found to be in a de facto relationship with the sponsor.
The claim that the applicant had not been previously married must be considered with the overall claims made by the applicant in support of the application. He claimed that he was introduced to the sponsor in March 2005, before he was married to his wife in Vietnam. He claimed that they continued to communicate after that time chatting on the Internet and telephoning each other. He claimed that they met each other in person for the first time in 2008 in Ho Chi Minh City. At that time he was living with his wife and child. He claimed they met each other on a number of occasions after that in Vietnam despite continuing to live with his wife and child over that period.
The applicant stated in his statutory declaration dated 29 March 2018 (at paragraph 3) that he considered his marriage with his wife came to an end in late 2008 and when he left Vietnam in 2009. He continued to live with his wife and child until he travelled to Australia on the Student visa. In the submissions filed by his agent dated 15 May 2018 it is claimed he separated from his wife in 2007 but continued to live in the same house for the sake of their child.
If the correct information had been provided, this would have called into question the claims made by the applicant and the sponsor as to the development of their relationship and whether they had ever been in a genuine and continuing relationship or had a mutual commitment to a shared life to the exclusion of all others. It is likely that the knowledge that the applicant was married at the time of the start of the relationship and continued to be married to his wife in Vietnam would have allowed the Department to conduct further enquiries as to the genuineness of the relationship.
The failure to provide information about the applicant’s daughter also raises a concern as to the genuineness of the relationship between the applicant and the sponsor. The Department may have considered that even though the applicant’s daughter was a non-migrating child of the applicant that she may have been required to undergo a health assessment. Although it is argued by the applicant that it was not likely that this would be done by the Department, the fact that he did not provide this information prevented the Department making that assessment.
Although the applicant may have been assessed as meeting the criteria for the grant of a Partner visa on the basis of being in a de facto relationship with the sponsor, the fact that he did not provide the correct information prevented the Department from carrying out further investigations to properly assess the application on the claims made by the applicant and the sponsor in support of that application.

The circumstances in which the non-compliance occurred

The applicant claimed the reason he did not disclose his marital status or the fact that he had a child to his wife in Vietnam was because he did not want to disclose this information to his sponsor as he was afraid she may be jealous and he may have lost his relationship with her. The Tribunal does not accept this.
The sponsor at the time of the claimed marriage had been married on two previous occasions. She had two children to her first husband who she divorced in 1997. She had a child to her second husband who she divorced in March 2010. The fact that the sponsor had previously been married on two occasions and had three children from her two marriages indicates that she would not have had any concerns as to the fact that the applicant had been married and had a child from that relationship. As the sponsor had been married twice before and had three children from her prior relationships, with her second marriage only ending in divorce in March 2010 meaning that she would have only separated from her second husband in early 2009 or late 2008, the Tribunal does not accept that she would have been jealous if the applicant had advised her that he was married but had separated from his wife in 2008, which he now claims.
The fact that the applicant claims the sponsor was not aware of his marriage and that he had a child of that relationship indicates the parties did not provide the degree of companionship and emotional support which would be expected in a genuine relationship. It indicates that the applicant was not committed to the relationship and that he did not consider the relationship was long term if he failed to disclose to the sponsor that he had a child from his first marriage who he now claims he has a continuing relationship with and to whom he provides support.
The applicant has provided various claims as to whether he considered he had validly divorced his wife. In his statutory declaration sworn on 29 March 2018 (at paragraph 29) he claims that he filed a sole divorce application before he left Vietnam and his application was accepted after he paid the filing fees. He believed that the divorce had been granted but he did not follow this up.
He states further in that statutory declaration that he asked his parents to obtain a single status certificate as he thought there were no issues with regards to his divorce from his wife. He claimed that he was at that time arranging for his family to obtain the divorce certificate.
In the applicant’s statutory declaration dated 14 May 2018, he claimed (at paragraphs 30, 31 and 32) that the information he gave previously about applying for a divorce before he left Vietnam was incorrect. He claimed that he asked a friend in August 2009 before he left Vietnam to type up his application and he gave him money to lodge that application. He claimed that he did not follow this up and he sincerely regrets his error. He claimed that he believed the marriage with his first wife had been officially ended.

In his most recent statutory declaration dated 11 April 2019, the applicant claims (at paragraph 35) that in 2017 he sent emails to a friend in Vietnam asking for his assistance to clarify if he was divorced and to help him organise the divorce. He attached copies of the messages sent with an English translation.
The messages indicate that the applicant commenced the discussion with his friend on 3 August 2017. The message sent on 21 August 2017 states “Uh, I would like to ask about unilateral divorce in Vietnam. Can I do it if I do not return to Vietnam. Please help me, my friend”.
This message does not indicate that the applicant is requesting information to find out if he had been divorced, but was a request for assistance to obtain a divorce from his wife. This is inconsistent with the statutory declarations the applicant made on 29 March 2018, 14 May 2018 and indeed the current statutory declaration made on 11 April 2019. This also indicates the applicant was aware that he had not validly divorced his wife in Vietnam prior to the Department writing to him with the notice of intention to consider cancelling his visa on 21 March 2018.
The applicant appeared to do little to obtain the divorce until 18 April 2018, after the Department had written to him with a notice of intention to consider cancelling his visa. Again, this indicates the applicant was aware that he had not validly divorced his wife and chose to provide a statement to the Department at that time that he believed that he had been validly divorced knowing it to be false.
The applicant claims that he has now been referred to a solicitor in Vietnam who lodged a divorce application on 24 December 2018. The Tribunal accepts that the applicant is now taking substantive steps to obtain a divorce in Vietnam from his wife, however, it does not explain why he has consistently provided false information to the Department in various statutory declarations in response to the notice of intention to consider cancelling his visa. It appears the fact that prompted the applicant to properly finalise his previous marriages is his relationship with Ms Chu and desire to marry her.
The applicant claims to apologise for these errors and be remorseful for the fact that he provided this information. The Tribunal does not accept the applicant is genuinely remorseful for providing false information. The Tribunal finds the only remorse the applicant has is the fact that the false information he provided in support of the application has been discovered and the fact that he faces adverse repercussions as a result of his providing that false information. The claims that he has made as to obtaining a divorce from his wife in Vietnam since the Department advised of their considering cancelling his visa indicates he continues to be willing to provide false information to obtain an immigration outcome he desires.
The Tribunal finds the applicant deliberately provided the false information to the Department in support of his Partner visa application in order to support that application and avoided providing information to the Department that could have led to further investigations into the genuineness of that relationship.

The present circumstances of the applicant

The applicant claimed his relationship with his sponsor ended in December 2013, three months after he was granted the Subclass 801 Partner (Residence) visa. He provided statements claiming that the relationship was genuine until that time. In light of the fact that the applicant has previously provided false information to the Department and to the Tribunal in relation to the steps he claimed to have taken to obtain a divorce from his wife in Vietnam, the applicant’s credibility is questionable. The Tribunal has not, however, made any assessment as to whether the applicant was in a genuine relationship with the sponsor until December 2013.
The applicant claimed he had taken steps to rectify the fact that he had provided a bogus document, that being the marriage certificate to his sponsor. He claimed that he wanted to correct this misinformation.
The applicant applied for and was granted a divorce from his sponsor. A decree nisi was granted on 6 February 2019 and the decree became absolute on 7 March 2019. In the divorce order the Court declared it was satisfied there were no children of the marriage to whom s.55A(3) of the Family Law Act applied.
During the hearing before the Tribunal it was noted that obtaining a divorce for an invalid marriage was not the correct procedure. It also appeared that the applicant provided false information in that application by claiming there were no children of the marriage. If, as was claimed, the parties were in a genuine relationship and the three children of the sponsor were treated by both parties to the marriage as children of their family then they would fall under the definition of children of the marriage under s.55A(3) and should have been disclosed by the applicant in his application. The applicant acknowledged that he did not do this.
The applicant’s agent provided a letter from Janice Vu, the principal of the firm acting for the applicant. She claimed that she acted for the applicant in relation to advising him of how to resolve the issue of his marriage to the sponsor and advised him of the course of action he should undertake by applying for a divorce. She also claimed that when lodging the application online she failed to disclose the fact that there were children of the claimed marriage and answered “no” to that question. She apologised for this error.
It was stated that steps are now being taken by consulting a family law expert to set aside the divorce decree and apply for a decree of nullity in respect of the marriage.
The Tribunal accepts that it appears to have been due to the incompetence and flawed advice from Janice Vu rather than any deliberate action by the applicant that led to the application for the divorce being applied for and granted and the failure to disclose the three children of the sponsor who would be considered children of the marriage, if that marriage was valid, pursuant to s.55A(3). The Tribunal does not place any weight on the fact that the applicant applied for the divorce and failed to refer to the children when considering whether his visa should be cancelled.
The applicant claims now to be in a relationship with Thi Lan Anh Chu. She is a citizen of Vietnam. They claim to have been in a relationship since January 2017. At that time, Ms Chu was the applicant for a Partner visa on the basis of a claimed relationship with Chien Thang Vuong. That application was refused by the Department on 24 April 2018 with the Department finding Ms Chu was not the spouse of her sponsoring partner. Ms Chu, at that time, was claiming that she was in a genuine and continuing and exclusive relationship with Mr Vuong despite the fact that she is now claiming to have been in a relationship with the applicant and was pregnant to him. This issue is discussed further below. Ms Chu has applied for a review of the decision of the Department refusing the application on the basis that she will be seeking ministerial intervention to allow a visa to be granted to her. At this time, it appears that there is no basis for Ms Chu being granted any visa to reside in Australia and she remains in Australia on a Bridging visa.
The parties have a child together, Kristina, born on 30 April 2018. The applicant and Ms Chu took steps to obtain for Kristina an Australian passport on the basis that she was a child of the applicant who held, at that time, the right to reside permanently in Australia. Kristina’s citizenship was confirmed on 10 September 2018, after the applicant was aware the Department had made a decision to cancel his visa. It is claimed that Ms Chu is pregnant again to the applicant. The issues with respect to the applicant’s child are discussed below.
The applicant is currently employed with Ho Ho Top Foods Pty Ltd as a baker. He is supporting himself, Ms Chu and their child. The applicant has shown significant initiative to be able to obtain employment and, if his visa was cancelled and he was required to return to Vietnam, the Tribunal finds that it is likely that he would be able to find alternative employment there. The Tribunal accepts that the income and conditions that he would be able to obtain from any employment in Vietnam are likely to be not as advantageous as he has or can obtain in Australia.
The applicant has a child who remains living in Vietnam with his wife. It is claimed that the applicant is now providing support to this child, but there is little independent or credible information which would indicate the applicant has provided any emotional or financial support for this child at any time since he left Vietnam in 2009.
The Tribunal accepts that the applicant wishes to remain in Australia and has attempted to establish ties in Australia. He has employment and social contacts with the Vietnamese community in Australia, and in particular the Buddhist temple that he attends.

Subsequent behaviour concerning his obligations under the Act

The applicant responded to the notice of intention to consider cancelling his visa by acknowledging that he had provided false information to the Department by claiming that he had not previously been married and did not have a child.
As set out above, in responding to the Department the applicant has provided inconsistent information as to the claim that he had taken steps to divorce his wife in Vietnam. This includes claiming that he had taken steps personally to organise a divorce from his wife prior to his departing Vietnam in 2009, that he had organised for a friend to apply for a divorce from his wife immediately after he left Vietnam, and finally claiming that he was taking steps in 2017 to apply for a divorce.
The applicant only made admissions in respect of his marriage to his wife in Vietnam and the fact that he had a child after incontrovertible evidence had been put to him that he had provided false information in respect of his application. He continued to claim that he had taken steps to divorce his wife despite knowing that this information was not correct. The Tribunal does not place any weight in favour of the applicant as to the admissions he has made in light of the fact that the admissions were only made after clear evidence was provided showing he had provided false information and he continued to provide incorrect information as to steps he had taken to divorce his wife in Vietnam.

Any other instances of non-compliance

There is no information before the Tribunal of any other instances of non-compliance of the applicant in respect of his application for and the granting of the Partner visa.

Time that has elapsed since non-compliance

The Partner visa application was lodged on 24 June 2011, almost eight years prior to this decision. The applicant has resided primarily in Australia since that time with only relatively short periods where he has travelled overseas.

Breaches of the law

There is no information before the Tribunal which would indicate the applicant has breached any criminal laws.

Contribution to the community

The applicant has provided a number of statements from friends attesting to his good character and the contribution he has made to the community. The credibility of some of the people making these claims, and in particular Mr El-Kurdi, Ms Vo and Mr Trinh, is questionable in light of evidence discussed below. The Tribunal accepts, however, that the applicant has been involved with the Buddhist temple at Bankstown and has participated in volunteer work there.
The Tribunal places some weight in favour of the applicant on this contribution. The contribution, however, appears minimal and there is little information which would indicate he has made any significant contribution and has placed a priority on earning an income for himself. The activities within the temple appear to be aimed at advancing his own social interests rather than providing any long-lasting benefit to the community.

Effect of any cancellation on a child

The applicant has a child to his relationship with Ms Chu, Kristina, who was born on 30 April 2018 and is now one year old. It was claimed that she became an Australian citizen on 10 September 2018 on the basis of her father holding the right to reside permanently in Australia. That citizenship was granted to her after the Department had made a decision cancelling his visa. Ms Chu, at that time, held a Bridging visa on the basis that she had been refused a Partner visa claiming to be in a relationship with a different person and was seeking a review of the Department’s decision refusing that application.
It is claimed that Ms Chu is again pregnant to the applicant, however, no information has been provided with respect to this child.
The applicant provided a report from Dr Lowy in respect to various aspects of the applicant’s relationship with Kristina. It is clear the applicant and Ms Chu have a good relationship with each other and with their child. Dr Lowy gave the opinion that it was important for Kristina that she have her mother and father present as she develops. She gave the opinion that if the applicant was to return to Vietnam as a result of his Partner visa being cancelled and Ms Chu and Kristina were to remain in Australia there would be a disruption to the family unit as well as to the father/daughter relationship which would have adverse consequences on Kristina’s physical and psychological well-being in the present as well as in the future.
Dr Lowy did not have any significant experience in dealing with Vietnamese families. She claimed to have seen one or two other Vietnamese clients and did not have any specialist knowledge as to life in Vietnam. She described Vietnam as a third world country and it would be difficult for anybody to live there although had never been there herself. She claimed she had obtained this information by being told by some of her Filipino clients. She believed that if the applicant and Ms Chu returned together to Vietnam with Kristina they would be able to give her the same love and affection she would receive in Australia and would be able to develop appropriately.
Kristina’s parents are both Vietnamese citizens. Ms Chu’s Partner visa application has been refused and she is currently seeking a review by the Tribunal on the basis that she will then apply for ministerial intervention. She does not appear, at this time, to be entitled to apply for or be granted any visa to reside in Australia.
Both the applicant and Ms Chu have extended family members who continue to live in Vietnam. They have no close relatives living in Australia. The applicant’s eldest daughter continues to live in Vietnam. There is nothing to indicate the parties would not be able to return to Vietnam with Kristina to live and provide all the financial and emotional support to ensure she develops properly. There is nothing to indicate if the applicant and his family were living in Vietnam they would not get support from their extended families who continue to live there.
It is claimed that if Ms Chu is required to depart Australia she intends to leave Kristina in Australia, despite having no family or any other person available to look after her. It is claimed that she would leave Kristina to become a ward of the state. The Tribunal does not accept this. The report from Dr Lowy indicates Ms Chu has a close relationship with Kristina and that the threats made by Ms Chu to abandon Kristina are made to obtain an immigration outcome rather than a genuine intention to abandon her daughter.
The Tribunal accepts that if the applicant, Ms Chu and Kristina were allowed to remain in Australia they may face greater opportunities than if the family is required to return to Vietnam. The Tribunal gives some weight to this factor when considering whether the visa should be cancelled.

Other relevant considerations

The applicant claimed that he has been in a relationship with Ms Chu since January 2017. At that time, Ms Chu was claiming to the Department that she was in a genuine and continuing and exclusive relationship with the sponsor of her Partner visa application, Mr Vuong. Ms Chu continued to make representations to the Department that she was in a genuine and exclusive relationship with Mr Vuong up until the Department issued a decision on 24 April 2018 refusing the application.
Ms Chu has applied for a review of the decision of the Department before the Tribunal. She now claims the basis of that application for a review is to then seek ministerial intervention.
In support of her application, Ms Chu provided a number of documents including statements from friends claiming her relationship with Mr Vuong was genuine. This included a letter from Trinh Thi Vo from the Bankstown Buddhist Temple dated 13 November 2017 claiming they often saw Ms Chu and Mr Vuong attending the temple together and that they were a happy couple in love with each other. Trinh Thi Vo was one of the signatories of the petition from the Bankstown Buddhist Temple claiming that they knew the applicant and he was often at the temple. The fact that Trinh Thi Vo issued a statement dated 13 November 2017 claiming that Ms Chu was in a relationship with Mr Vuong while claiming to be a close friend of the applicant indicates he is willing to provide false information to the Department.
Ms Chu in support of her Partner visa application provided a letter from Mr El-Kurdi claiming that Ms Chu and her sponsor had leased a holiday rental property commencing 29 September 2017. He claimed that they were of good character who at all times show respect and honesty and integrity in all aspects of their life and he was proud to be associated with them. The letter was dated 28 November 2017. At that time, Ms Chu had been living with the applicant for 11 months and was pregnant with his child.
Mr El-Kurdi provided two statements in support of the applicant. The first statement dated 26 March 2018 claimed he had been a close friend of the applicant since 2015. He claimed he showed a high degree of integrity in all aspects of his life. He provided a second statutory declaration dated 8 March 2019 claiming that the applicant and Ms Chu were in a genuine relationship and he sees them every week. He claimed Ms Chu and his wife had a close relationship.
The Tribunal finds Mr El-Kurdi has been willing to provide false and misleading information to the Department to support any claim made by the applicant and Ms Chu to be able to obtain an immigration outcome they wish. That both Ms Chu and the applicant have used Mr El-Kurdi to provide statements in support of their matters before the Department indicates that they have been aware that Mr El-Kurdi has been providing false information for the other party.
Ms Chu in support of her Partner visa application provided a letter from Ngoc Long Trinh dated 13 November 2017 claiming that Ms Chu and her sponsor were currently living together in a home at Bankstown. Mr Trinh also provided a statutory declaration in support of the current application claiming to be the landlord of the applicant and Ms Chu who he stated he was aware had been living together since February or March 2017. He claimed they moved out of the home in July 2017 and he would visit them at their home.
The Tribunal finds Mr Trinh has been willing to provide false and misleading information to the Department to support any claim made by the applicant and Ms Chu to be able to obtain an immigration outcome they wish. That both Ms Chu and the applicant have used Mr Trinh to provide statements in support of their matters before the Department indicates that they have been aware that Mr Trinh has been providing false information for the other party.
In his response to the s.359A letter when these issues were raised with him, the applicant denied that he was aware that Mr El-Kurdi and Mr Trinh provided statements in support of Ms Chu’s application which, on the evidence now before the Tribunal based on the claims of the applicant and Ms Chu, were false and misleading. The applicant claims that he was so involved in his own migration issues that he was not involved or aware of any of the claims being made by Ms Chu in respect of her application. The Tribunal does not accept this.

When it has suited them, the applicant and Ms Chu have been actively involved in each other’s migration issues. They have supported each other, when it is convenient, in making claims as to why they should be able to remain in Australia. They have accompanied each other to their respective migration agents. The friends they have relied upon to provide evidence in support of their claims, even when those claims are patently false, are mutual friends of the applicant and Ms Chu. They had been living together throughout the period when these false statements were provided.
When the applicant initially responded to the Department’s notice of intention to consider cancelling his visa he made no mention in his statutory declaration dated 29 March 2018 of the fact that he was in a relationship with Ms Chu. He made no mention of the fact that Ms Chu was pregnant with their child and was due to give birth a month later. It was only after the Department issued the decision refusing Ms Chu her Partner visa on the basis of her sponsorship by and claimed relationship with Mr Vuong that the applicant provided information claiming he had been in a relationship with Ms Chu and had a child with her which would provide a reason not to cancel his visa.
The fact that the applicant did not refer to his relationship with Ms Chu until after her Partner visa application was refused indicates he has been complicit with Ms Chu in providing false and misleading information to the Department in support of her application. The Tribunal finds that he has been aware of the false and misleading information provided by Ms Chu to the Department and has supported her in obtaining that information to try to deceive the Department into believing she was in a genuine and continuing relationship with Mr Vuong. The fact that the applicant has been complicit with Ms Chu in providing further false and misleading information to the Department must be given weight when considering whether to exercise the discretion not to cancel the applicant’s visa.

Overall assessment

The Tribunal has considered all the circumstances of the applicant and his family both individually and cumulatively. The most significant reason for not cancelling the applicant’s visa is how the cancellation of the visa would affect his daughter, Kristina. Kristina is an Australian citizen based on an application brought by her parents even though at the time she was officially confirmed as an Australian citizen the Department had cancelled the applicant’s Partner visa and both he and Ms Chu only held Bridging visas. As set out above, the Tribunal finds that if the applicant’s visa is cancelled it is likely that the applicant, Ms Chu and Kristina will all return to Vietnam to live together. The Tribunal acknowledges that the opportunities that are available to Kristina in Vietnam are likely to be less than the opportunities and advantages she would have if living in Australia.
Against this, however, is the deliberate and intentional action by the applicant to provide false and misleading information to the Department. The Tribunal finds that the applicant was complicit in Ms Chu’s providing false and misleading information in respect of her Partner visa application. The Tribunal finds that both the applicant and Ms Chu have arranged for their friends to provide false and misleading information to the Department. The fact that the applicant has repeatedly provided false and misleading information in respect of his relationship with his wife in Vietnam, his attempts to obtain a divorce from his wife in Vietnam, his relationship with his sponsor and Ms Chu’s relationship with Mr Vuong must be given considerable weight when considering whether the applicant’s visa should be cancelled.
Having considered all the information before the Tribunal as set out above, the Tribunal finds the grounds for cancelling the visa outweigh the reasons not to cancel the visa.
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

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

Hugh Sanderson
Member

ATTACHMENT – Migration Act 1958 (extracts)

Interpretation

(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.

Interpretation

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).

Completion 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.

Information 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.

Incorrect 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.

Visa 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.

Notice of incorrect applications
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.

Decision 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.

Cancellation 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.

[2019] AATA 3707

29 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction