Diep (Migration)

[2020] AATA 1621

Diep (Migration) [2020] AATA 1621 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duy Trat Diep

CASE NUMBER:  1823768

DIBP REFERENCE(S):  BCC2016/1936855 CLF2018/193641

MEMBER:Michael Cooke

DATE:29 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 29 April 2020 at 4:20pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect information in mother’s visa application – applicant listed as adult dependent student – adverse information that applicant was working full-time – university records – enrolled but not attending – father’s death, mother’s illness and necessity to work – discretion to cancel visa – credibility – anonymous claim of fraudulent partner visa and marriage – timing of divorce in relation to cancellation of visa – current circumstances – elderly Australian citizen mother’s illness, treatment and mental health – estranged sister could provide care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 99, 101(b), 107, 107A, 109(1), 359AA, 376
Migration Regulations 1994 (Cth), rr 1.05A, 2.41, Schedule 2, 143.321

CASE
MIAC v Khadgi (2010) 190 FCR 248

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

2. The delegate cancelled the visa on the basis that the applicant provided incorrect answers in Departmental forms that were part of his application to migrate. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 30 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Thanh Huong Phan, who is the applicant's mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. Following the hearing (in response to the s.359AA invitation) the applicant submitted additional information to the Tribunal as follows:

   oPost-Hearing submission

   oCertificate of Australian citizenship of the Applicant's mother, Ms Thanh Huong Phan ("Ms Phan");

   o02. Medical certificate for Ms Phan's attendance with the Applicant;

   o03. Operation report relating to Ms Phan's cancer operation;

   o04. A letter of support from Dr Diep Giang;

   o05. A letter of support from the Vietnamese Women's Association;

   o06. A letter of support from the Vietnamese Artists Union in Australia; and

   o07. A letter of support from the Vietnamese Catholic Community Sydney.

6. The submission presented as follows:

   Re: Duy Trat Diep – Review Applicant

   We refer to the hearing before Presiding Member Cooke on 30 September 2019, with Mr Duy Trat Diep (“Applicant”) in attendance.

   We make this submission under the Applicant’s instructions to provide further evidence and information in support of the Applicant’s request for the Presiding Member to make a decision to not cancel the Applicant’s visa based on compelling reasons and circumstances that exist.

   Compelling reasons to not cancel the Applicant’s visa

   We respectfully submit that, as per the Applicant’s oral evidence at hearing, his mother, who is an Australian citizen (see Attachment 1), desperately needs him in Australia to continue caring for her and supporting her during her recovery and continued treatment from cancer. We submit that these circumstances and the relevant evidence in support of these claims present sufficiently compelling and strong reasons for the Presiding Member to exercise the discretion not to cancel the Applicant’s visa.

   As per the Applicant’s previous and current instructions and evidence, we submit that Ms Phan is considerably old and faces many significant health concerns, including cancer for which she underwent an operation in November 2019. We submit that the Applicant has been, and will continue to be, the only person available and capable of caring for and supporting Ms Phan during this time—particularly in her recovery, as well as the day-to-day care for which Ms Phan is heavily reliant on the Applicant.

   We submit that the medical documents submitted herewith (see Attachments 2 – 3), in conjunction with the oral evidence provided at hearing, presents a clear picture of the level of care and dependence that Ms Phan has on the Applicant and demonstrates sufficient reason for the Presiding Member to exercise the discretion not to cancel the Applicant’s visa.

   Letters of support

   In addition to the medical documents referred to above, the letter of support from Dr Diep Giang (see Attachment 4), who is Ms Phan’s family doctor, clearly sets out Ms Phan’s numerous conditions and the level of care and support—including physical and mental—that she requires from the Applicant, which demands his continued presence and stay in Australia.

   Dr Giang’s letter of support includes reference to chronic pain and inflammation, which requires physiotherapy, as well as the consequential depression, anxiety, insomnia, and tension headaches—for which she receives additional counselling from a psychologist—as serious and significant reasons that Ms Phan desperately needs the Applicant to remain with her. Importantly, Dr Giang’s letter makes clear that Ms Phan’s suffering includes detriment to her mental and physical health that has been exacerbated by the looming threat of the Applicant’s departure and removal from Australia. We respectfully request that the Presiding Member consider this letter of support with appropriate and significant weight in your consideration and exercise of your discretion.

   Finally, we submit that the additional letters of support from various community organisations that Ms Phan is involved in (see Attachments 5 – 7) provide further information that ought to weigh against cancelling the Applicant’s visa. Importantly, we submit that these letters attest to the level of involvement, contribution, and connection that Ms Phan has to Australian and the Australian community. A decision to cancel the Applicant’s visa and remove him from Australian would effectively remove the assistance and support that Ms Phan certainly requires in order to continue her interaction and contribution to these communities and Australia broadly.

   As the letters of support attest, Ms Phan has had a long history of involvement with her broader community and for much of this time, she has been dependent on the Applicant for care and support. We submit that the connection that Ms Phan has to Australia will be indirectly yet severely affected by the Applicant’s removal and departure from Australia. We submit that significant weight ought to be afforded to these letters—both individually and jointly—in deciding whether it is appropriate to cancel the Applicant’s visa.

   Conclusion

   We submit that the information submitted herewith has provided adequately compelling reasons for not cancelling the Applicant’s visa. We submit that the consequences of a cancellation and the ongoing impact on his mother far outweigh any possible reasons for cancelling the visa.

   We hope that the Presiding Member will make a reasonable and favourable decision for our client.

7. The Departmental file has an attached s.376 certificate. The Tribunal has found it valid and on 20 April 2020 it made the Certificate available to the applicant for his comment. The “gist” of the information in the Certificate had been disclosed to the applicant previously in the hearing - pursuant to s.359AA of the Act. Further comment (see above) was made after Tribunal invitation at the hearing.

8. The applicant did not respond to the Tribunal offer to further comment on the validity of the s.376 Certificate at time of writing.

9. 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

   The Hearing

10. The Tribunal noted that the applicant had provided a divorce certificate dated 2018 with his former wife Ms LE and read out the document dated 26 November 2018. He informed the Tribunal he married her in 2013 and he was cancelled in 2018. They had a big argument wherein she blamed him. She decided to divorce the applicant and she went back to Vietnam.

11. The Tribunal asked the applicant how he managed to have the required 12 months marital separation prior to the divorce. The applicant insisted that they got divorced in 2018 at the time he was cancelled yet the law would have required them to be separated for 12 months prior to that - meaning 2017. The applicant said when his visa was cancelled, they fought about it and it affected her so much Ms LE wished to divorce. She then went back to her family and stayed in Vietnam. One day she asked him to go to a lawyer in Cabramatta and sign some documents. After she went back to Vietnam he had no response from the lawyer and contacted the lawyer and asked what was happening. He was asked to wait, as she had left a piece a piece of paper for him to sign.

12. The Tribunal explained that the cancellation decision was made on 10 August 2018. The actual divorce order was made on 25 October 2018. In order to divorce the applicant would have had to been separated for 12 months. Yet at the same time they should have been separated he was saying they were in a good relationship and that she helped him look after his mother. He was effectively saying they had not been separated. He said he understood the Tribunal but the day he signed the divorce was around June or after August. The Tribunal then explained the matter again. He claimed he was still living with his wife and was not separated in 2018. How then did he manage to get a divorce from his spouse? He said after his visa was cancelled, he had gone to the lawyer. The Tribunal asked him to explain how he was not separated. He said he did not know a lot about the law. He went and signed the document and he did not know what she said to the lawyer. The Tribunal suggested, therefore, that it was all her fault and he just signed the document. He said yes.

13. The Tribunal then referred to a s.376 Certificate on the Department file dated September 2019. The Tribunal read out the Certificate details to the applicant in full. The Tribunal then elaborated ‘the gist’ of the confidential information to the applicant. The Certificate Departmental file number was referred to by the Tribunal and the basis for issuing a Certificate was explained to the applicant. The Tribunal could not reveal the source but would inform him of the ‘gist’ of the information in the Certificate and allow him to comment. Basically, informants had supplied information to the Department which was confidential in nature.

14. The Tribunal then advised the applicant (pursuant to s.359AA of the Act) of the ‘gist’ of the Certificate information. It informed him he had the opportunity to comment on it immediately or later after discussion with his representative. The Tribunal then explained again what it proposed to do - for clarity sake. It explained that the information could be a reason or form part of the reason for affirming the decision. The Tribunal insisted it had not made up its mind as this was a brand-new review. It explained that, for instance, he had given new information concerning his divorce to the Tribunal.

15. The Tribunal said some informants told the Department adverse information prior to his cancellation. These individuals decided to tell the Department information which contradicted information he had told the Department himself. For instance, there were the campus and full-time student issues from his time in Vietnam that were newly revealed in the delegate’s decision record. The Department officers went back to the university and discovered that he had not been a full-time student as claimed. He had subsequently explained why that happened and why he had not attended as often as he wished to attend. He had admitted he was not there all the time and he had to get a job. The informants, however, gave a different story.  He then admitted he was working and that it was not full-time. The Department believed that the allegation was true. There was a further claim that he provided bogus documentation. There was also a serious allegation that his marriage to his former wife was fake and contrived for financial benefit and a positive visa outcome.

16. The Tribunal explained further that he had claimed he was dependent on his mother to get the Contributory Parent visa - which he was successfully granted. The Tribunal opined that usually a full-time student would be regarded as a dependent - even if he were an adult. The applicant, in response, insisted that until 2010 he was dependent on his mother but in June 2010 the family lost their father. They had to survive on what money they had as the family business had closed. Family financial problems were exacerbated with his mother’s ill health. He decided he could not lose his mother. His family was not rich. They had struggled to survive and maintain the children as students.  He used the money for her treatment, so this was how he survived – effectively he had to work.

17. The Tribunal explained to the applicant that the decision was not specifically about compassion for his earlier situation. It was about making a statement to the Department that was not true. A foreign national, when signing a document, had to ensure it was true when signed. If later the person were found out to have given incorrect information by the Department, it could cancel the person’s visa.

18. He was asked by the Tribunal was he working and was he studying at the time. He said that after 2011 his mother told him to go back to university. In March 2011, he went back but they refused to accept his payment and he had to go the Head Office. He told them about his mother’s situation, and they allowed him to return. One month later he was asked by the Department was he working currently or studying, and as he was studying he said he was studying. So, he did tell the truth - he insisted to the Tribunal

19. The Tribunal then referred to the allegation of a contrived marriage where he had been paid to sponsor his ex-wife. The reason he gave the Tribunal for their divorce was that she was upset that this happened (cancellation) and she decided to call it quits.  The Tribunal then observed that there was a direct correlation between the fact that he had not delivered the visa and her decision to divorce him. The law did not discount the possibility that permanent residency might be an inducement to marry a person - but as long as the relationship was genuine and continuing it was lawful.

20. However, in his case the allegation was that the relationship was not genuine and purely contrived. The applicant said he discussed this with her after the cancellation. He had asked her whether she had used him to get the permanent visa. They did not have children for instance. He said they fought a lot and she blamed him. She said that he was the cause of the problem. He had destroyed her dream and she would have to go back to Vietnam and she was angry. The Tribunal said the contrary view was that she paid him for the visa. He did not deliver the visa and that was why there was a big problem. As there was no real marriage anyway there was no problem with divorcing.

21. The Tribunal opined that, from his earlier evidence, the applicant could not tell the Tribunal even when exactly they separated. Earlier in the hearing he had also told the Tribunal that his ex-wife had not even been living with him. He informed the Tribunal that she came over to help him attend to his mother. The Tribunal observed that the ex-wife seemed to be living elsewhere. The applicant said, in response, that his wife rented a place near him in Parramatta. She did not want to look after his mother all the time. She wanted to work. So, he stayed with her some time and he stayed with his mother because she was the more important person after her liver operation. The Tribunal presented him with an alternative scenario. The marriage was fake. The ex-wife lived in her residence and he lived in his. He replied that the Tribunal scenario was not true.

22. The Tribunal then explained that it was talking to him about his ex-wife because there were already issues with him telling the truth in Departmental paperwork when he sent in documentation. Effectively if he signed it - he owned it - in general. The Tribunal informed him that what someone says is the truth must be the truth. The applicant agreed. The Department could not check every case for the truth but that was its expectation otherwise there would be no integrity in the system. There was a question throughout about the applicant’s credibility and truthfulness. Informants, who appeared reliable in their knowledge of the applicant, told a different story than what he told. Also, as a witness at the hearing, his evidence had been very unconvincing and unclear about his divorce proceedings. He insisted to the Tribunal in response that he had told the truth. He had not seen his ex-wife at all and maybe she had discussions with the lawyer. He agreed his marriage had broken up after the cancellation. He did not understand much about the divorce. He did not know much as he was too involved in his own problems. He signed because he had authorised her to do everything.

23. The Tribunal then refreshed the applicant about his case. It referred to the informants and told him that the Department believed the informants. This was because of intensive investigation and the quality of the information particularly their personal knowledge of his activities after weighing up the evidence. The Department delegate then had to provide him with procedural fairness which he did. The Tribunal itself had canvassed further information about his marriage. The Department then asked itself whether their investigations confirmed their theories. He had been granted permanent residency a long time. The university investigation was regarded as sufficiently correct and thorough to cancel his visa. The Tribunal was now undertaking a brand-new review based on all this information. The s.376 Certificate allowed the Tribunal to use the information but only after exploring it and asking him for his responses. Then there were other discretionary considerations before making the decision whether to affirm or set aside the cancellation.

24. The Tribunal then allowed the applicant an adjournment of five minutes to discuss matters with his representative.

25. The representative requested the Tribunal to allow time for a further submission of a ‘considered response’ following his original evidence. He referred to the s.376 Certificate which he granted was valid. He referred to the confidential information. The Tribunal said it had a thorough understanding of the applicant’s mother’s health and the claim that it was sufficiently bad that he was needed in Australia. The applicant had claimed that his sister was not available to help his mother and she needed him to stay from a health point of view.

26. The Tribunal then outlined the various adverse issues from the available information. It referred to the Departmental paperwork ‘Form 40’ which had been furnished by the applicant prior to his emigration and signed on 20 April 2011. His mother also signed it. It elaborated his written responses to the dependency and reliance on another person issues and which were outlined in the Department decision on the Tribunal file. It explained the legal concept of ‘basic needs’. It showed that he ticked the box ‘yes’. He was asked on the paperwork to give reasons why he was not employed. He had written ‘studying full time university and due to the assignments, I have not been able to look for work and I have been taking English language lessons and all my time is committed to study’. There was also another document. In these documents it was disclosed that he insisted he studied full-time and was dependent on his mother. He denied the ability to look for jobs. He explained his study regime. He denied working and did not disclose earnings or work history. He disclaimed the ability to look for a job. The delegate was initially satisfied with this information and thus he was granted the visa.

1. Following the investigation, he was accused of providing fraudulent information as part of the visa application by falsely claiming to study full-time in order to fulfil the dependency criterion. He had been working full-time in a Nike store from 2009-10 in Ho Chi Minh City it was claimed. In December 2017 the Department began integrity checks. Their conclusion was that he had paid fees and was enrolled but his course participation declined. He did not study from June 2010 onwards. The problem was that he submitted incorrect information. He had told the Tribunal and Department why that happened, but the point was that it did happen being the provision of incorrect information. Even the Hong Bang University disclosed he had not been studying since June 2010.

2. He said in response that what the Department said was not fair. When he answered the questions in 2011, he was not actually working. The Tribunal said that the investigation disclosed he had not answered correctly 5 questions. He maintained in March 2011 he went back to study on campus and in October 2011 he went to Australia. He said he presented information to Hong Bang University and they allowed him to return. It was not fair.

3. The Tribunal then returned to the decision (on the Tribunal file) where the above claim was addressed. His representative had responded to the Department. He agreed he had not sat any exams since 2010. He said he went back to school and was studying. The Tribunal said that he may have been enrolled when he got the visa, but he was not studying full time according to the University. He did not sit any exams and his behaviour was not indicative of a full-time student according to authentic documents produced during the integrity check. He had provided wrong information. The only reason the Department investigated years later was because of informants.

4. The Tribunal then gave the applicant a summary of his situation and why a cancellation had been provoked. There was the University investigation and, furthermore, the alleged fake marriage to his ex-wife. All this was information sourced from informants. There was the suggestion that the applicant may have told so many untruths that he had a credibility problem because he might have a history of not telling the truth and not being a truthful witness.

5. The Tribunal then examined the applicant’s mitigation claims as part of the cancellation review and the submissions regarding hardship to his mother if the cancellation were affirmed. He informed his mother had became a citizen. His problem with his sister begun in April 2015. He came to the home and his sister and his mother had a bad argument. His hand was broken in an accident and he could not work. He took her with him. The relationship between his sister and her husband and his mother had broken down. When they sold the Vietnamese property - she wanted to buy a house alone. The sister and brother-in-law wanted some money to purchase a truck to use in a proposed driving school and she refused because she wanted to buy a house. There was abuse from them that they had helped her to migrate but she had not helped them in return. So, he had tried to survive. He and his mother were separated from his sister. He wondered whether people who knew him had reported him after the family relationship was broken. His sister divorced and his brother-in- law blamed the money issue for the dissolution of the marriage. The applicant stated that he owned the mortgage on their house and was responsible for it. The applicant insisted she was reliant on him and, if he were to leave, she could suffer hardship. Her health would decline irreversibly. Seven years had elapsed, and it was based on allegations from a disgruntled family member. He was a taxpayer and a carer.

6. The applicant’s mother was then invited to give evidence. She was asked did she understand the hearing evidence. She replied that some things she understood and others she did not. The Tribunal asked her whether she had understood that her son had given incorrect information to the Department. She indicated she understood. She said her family had only the two of them. She lived on him. She had a lot of sickness and she was totally dependent on him. He is very faithful to her. He sacrificed himself. He was the only one who could look after her illness.

7. The Tribunal asked her why he had furnished the wrong information. She said he had a crisis with his father and she had a lot of illness. There were financial difficulties and medical expenses and there was no money to pay for his study and he had to work. She offered to sell all the assets and jewellery so he could continue to study. He was still studying English and when he had enough money, he resumed studies in 2011. She was widowed at 49 years old. She thought the reasons he stopped his study was because she was sick and he was not able to keep up his studies. Her situation was one of the reasons.

8. The Tribunal asked her what she wanted the Tribunal to do. She said she wanted the Tribunal to consider that he was the one who supported and cared for her during her illness. Her health was not stable, and she needed him. Her spirit was suffering. The whole of her family was separated. He needed him to take care of her during her illness. She indicated she was glad she had told the Tribunal her personal story. Her other worry was that she had to have a further operation in November 2019 and needed his help. She had been driving the car but had an accident. Tomorrow she would taken an oath to be an Australian citizen and she did not know how to live without her son. She had two children but could only live with her son. She wanted her son to stay here permanently to look after her.

9. The applicant was invited to make a final statement. The Tribunal informed him that it would receive a further letter from the Tribunal. The applicant said he promised to the Tribunal and Jesus that he wanted to study but his father passed away. That was why he made the mistake by not studying he apologised for the misunderstanding. He did not mean to lie and he hoped to have an opportunity to stay in Australia because he needed to look after his mother.

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. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

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

13. 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 section 101(b) in the following respects:

    A non-citizen must fill in or complete his or her application form in such a way that all questions on it are answered; and no incorrect answers are given or provided

14. By operation of s.99 of the Act, 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.

15. Section 107A of the Migration Act applies when possible non-compliances are in connection with a previous visa which may be grounds for cancellation of a current visa:

    107A. The possible non-compliances that:

    (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b)if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

16. The possible non-compliance relates to the Contributory Parent (Subclass 143) visa previously held by the visa holder and granted on 25 July 2011.

    Evidence of non-compliance:

17. On 12 April 2010, the visa holder's mother lodged an application for a Contributory Parent visa at the Department's office in Perth, Western Australia.

18. Within the Contributory Parent visa application the visa holder's sister (Quyen Tu DIEP DOB: 25/02/1984), was listed as the sponsor, the visa holder's mother (Ms Thanh Huang PHAN DOB: 5/12/1958), was listed as the main applicant and the visa holder (Duy Trat DIEP) was listed as a dependent applicant.

19. The following answers were provided in the Form 47PA - 'Application for a parent to migrate to Australia' which was signed by all applicants:

    Page 14, Part H — Dependent Children aged 18 years and over and other dependants:

    Dependant 1

    Family name: DIEP

    Given Names: Duy Trat

    DOB:   19/08/1988

20. As part of the application Form 47A 'Details of child or other dependent family member aged 18 years or over' was also provided, which was signed on 14 April 2011 by the visa holder and his mother. On page three, the visa holder was listed as a dependent family member aged 18 years or over:

    Page 3, Q 4 Part B Child's / Dependant's details:

    Family name:  DIEP

    Given names:  Duy Trat

    Q8. Dependant's sex: Male

    Q9. Dependant's DOB: 19/08/1988

21. On page five, question 25 of Form 47A, the visa holder stated he was unemployed and unable to look for work as all of his time was committed to studying.

    Page 5, Q25. Is this dependant currently employed?

    No — box ticked

    Give reasons why the dependant is not employed.

    "I'm full time studying at university. Due to full time study timetable and the amounts of assignments from university I haven't been able to look for works. Besides that I'm taking English courses at language school. All my time is committed in studying."

22. A document entitled Questionnaire for Dependants over 18 years of Age was also provided in support of the visa application and which was signed and dated by the visa holder on 11 April 2011.

23. At questions one, two, three and five the visa holder indicated the following:

    ·he had lived with his mother for almost 20 years and was fully dependent on his mother as she provided all his accommodation and living needs;

    ·she paid his school fees; and he was unable to seek or undertake employment due to his demanding full-time study load, which took up all of his time.

    Why do you think you are dependant? Please give reasons why you consider yourself to be dependent upon another person.

    "Due to the full time study time-tables and large amount of assignments in the third years University; I have not been able to work or look for any jobs."

    Are you studying? If so, please provide the name of the school / college / university, details of whether the course is part time, full time, its duration and expected date of completion.

    "Yes, I am currently studying full-time at Hong Bang International University major in Accounting - Audit Duration of the course is 4 years full-time 2008-2012."

    Are you currently working? How long have you been working? Is it part time or full time? Who is your employer? Provide evidence of your employment history, confirmation of your current employment (if any and details of your earnings from that employment.

    "No, I am not working. Due to the third years studying at University, I am having lots of assignments and group works to do; I am not able to work or look for any works. All my times are committed in studying full time at University and English language course."

    Are you looking for work now? What sort of work have you been seeking? Do you intend to look for work in the near future? If you haven't looked for work, nor intended to, why not?

    "No, I have not looked for work; because I intend to concentrate in studying as third years in Uni there are lots of pressures on assignments and exams."

24. The visa holder also provided a Form 80 'Personal Particulars for Character Assessment' in which he indicated he was currently studying full time at Hong Bang International University and had been since 2008. The visa holder signed and dated a Form 80 on 14 April 2011.

    Q24. Give details of your education history for the entire period since leaving high school

    From:  2008

    To:      Current

    Name and Address of Institution: Hong Bang International University (Vietnam)

    Course Studied:         Accounting

    Course Completed or Withdrawn: current

25. At the time of application, the visa holder was required to meet subreg.143.311(a) of the Migration Regulations 1994 (‘The Regulations') amongst other criteria and which required him to be ‘a member of his mother's family unit’. As he was over the age of 18, the visa holder was required to meet further dependency criteria at Regulation 1.05A of the Regulations, in order to be considered ‘a dependent member of her family unit’ see below:

    Regulation 143.311(a) the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 143.21

    Regulation 1.12          Member of the family unit

    Reg 1.12 (1) For the definition of member of the family unit in subsection 5(1) of the Act, and subject to sub-regulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this sub-regulation called the family head) if the person is:

    (b)a dependent child of the family head or of a spouse or de facto partner of the family head;

    ‘Dependent’ has the meaning given by regulation 1.05A

    Reg 1.05A      (1) Subject to sub-regulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

    (ii)the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

26. On 25 July 2011, as the delegate was satisfied the applicant met all necessary criteria, including Regulation 143.321 (which required the visa holder to continue to be a member of the Main Applicant's family unit) the Contributory Parent visa was granted.

27. The Department subsequently obtained anonymous information which indicated the visa holder had provided fraudulent information and documentation in his Contributory Parent visa application in which he falsely claimed to be studying full time, in order to satisfy the relevant dependency criteria. However, the information indicated, on the contrary, that the visa holder had been working full time from 2009 to 2010 in a Nike store in Ho Chi Minh City.

28. Following integrity checks conducted by the Department in Ho Chi Minh City, Vietnam, on 5 December 2017 Hong Bang International University provided the following student transcript results for the visa holder:

    In Semester 1 — school year 2008 —2009 (September 2008 to January 2009) the visa holder did not attend examinations for two of five subjects;

    In Semester 2 — school year 2008 — 2009 (February 2009 to June 2009) the visa holder did not attend examinations for two of his nine subjects in the first exam and did not attend one subject in the second exam (*);

    In Semester 1 — school year 2009 —2010 (September 2009 to January 2010) the visa holder did not attend examinations for three of nine subjects in the first exam and did not attend two subjects in the second exam 09;

    In Semester 2— school year 2009 — 2010 (February 2010 to June 2010) the visa holder did not attend exams for three of five subjects in both first and second exams (*); and

    Since Semester 1 — school year 2010 — 2011 (September 2010 to January 2011) the visa holder did not attend any exams.

    (*): In Vietnam, students can attend two exams. If they did not attend or fail in the first exam, they have the chance to attend the second exam.

29. The delegate found that the Hong Bang International University records confirm the visa holder paid the required tuition fees and was enrolled at the university between 2008 to June 2011. However, whilst the visa holder was enrolled at Hong Bang International University his course participation declined over time and he did not engage in any course requirements at all after Semester 2 completion in June 2010.

30. The delegate considered that the applicant, therefore, provided incorrect information as at page five, question 25 of Form 47A, which was signed and dated by him on 14 April 2011 he stated therein:

    "I'm full time studying at university. Due to full time study timetable and the amounts of assignments from university I haven't been able to look for works. All my time is committed in studying."

31. The delegate considered this to be incorrect as it appears the visa holder was not studying full time or committed to studying at that time, as his Hong Bang International University study transcript indicates his attendance was declining between 2008 and 2010, and he did not engage in any course requirements at all, from June 2010.

32. The delegate considered that the visa holder provided incorrect information at question one of the Questionnaire for Dependants over 18 years of Age, which was signed and dated by him on 11 April 2011 and wherein he stated:

    "Due to the full time study time-tables and large amount of assignments in the third years University; I have not been able to work or look for any jobs."

33. The delegate considered this statement to be incorrect as it appears the visa holder was not studying full time, as his Hong Bang International University study transcript indicates he did not engage in any course requirements at all in his third year, from June 2010.

34. The delegate also considered the visa holder provided incorrect information at question two of the Questionnaire for Dependants over 18 years of Age, which was signed and dated by him on 11 April 2011 and wherein he stated:

    "Yes, I am currently studying full-time at Hong Bang International University major in Accounting - Audit Duration of the course is 4 years full-time 2008-2012."

35. The delegate considered this statement to be incorrect as it appears that the visa holder was not studying full time at that time, as his Hong Bang International University transcript indicates he did not engage in any course requirements at all, from June 2010.

36. The delegate considered that the visa holder provided incorrect information at question three of the Questionnaire for Dependants over 18 years of Age, which was signed and dated by him on 11 April 2011 and wherein he stated:

    "No, I am not working. Due to the third years studying at University, I am having lots of assignments and group works to do; I am not able to work or look for any works. All my times are committed in studying full time at University and English language course."

1. The delegate considered this statement to be incorrect as it appears all this time the visa holder was not committed to the course requirements of third year full-time university study and group assignments, as his Hong Bang International University transcript indicates he did not engage in any study requirements at all in his third year, or any course requirements from June 2010.

2. The delegate considered the visa holder also provided incorrect information at question five of the Questionnaire for Dependants over 18 years of Age, which was signed and dated by him on 11 April 2011 and wherein he stated:

   "No, I have not looked for work; because I intend to concentrate in studying as third years in Uni there are lots of pressures on assignments and exams."

3. The delegate considered this statement to be incorrect as it appears the visa holder was not studying full time, as at that time his Hong Bang International University study transcript indicates he had not been engaged in any course requirements at all since June 2010.

4. Thus, the delegate considered the visa holder provided incorrect information at question 24, of Form 80, in which he indicated he was currently studying full time at Hong Bang International University and had been since 2008, which was signed and dated by him on 14 April 2011.

   Name and Address of Institution: Hong Bang International University (Vietnam)

   Course Studied: Accounting

   Course Completed or Withdrawn: current

5. The delegate considered the above details to be incorrect as it appears the visa holder was not studying Accounting at Hong Bang International University at that time, as his Hong Bang International University study transcript indicates he had not engaged in any course requirements at all since June 2010.

6. As it appears the visa holder has provided incorrect information in a visa application, I consider there is non-compliance with section 101(b) of the Act which requires visa applications to be correct.

7. If there is non-compliance with section 101(b) of the Act, a visa holder's visa may be considered for cancellation under section 109 of the Act.

8. A Response to the Notice was received on 6 July 2018 and a further response on 17 July 2018.The applicant stated that he did not mislead the Department regarding his enrolment in full time study but indicated that his circumstances prior to his arrival in Australia were of a compelling nature.

9. In his response to the Notice the applicant provided the following supporting documentation:

10. Migration agent's submission dated 17 July 2018

    ·Statutory Declaration dated 17 July 2018 written by the visa holder

    ·Receipts for the visa holder's Hong Bang University fees for first semester 2010-2011 dated 10 March 2011

    ·Receipts for the visa holder's Hong Bang University fees for first semester 2009-2010 dated 6 April 2010

    ·Receipts for the visa holder's Hong Bang University fees for first semester 2009-2010 dated 5 January 2010

    ·Education results and English translations relating to visa holder's study at Hong Bang University for semesters 1 and 2 of academic year 2008-2009, semesters 1 and 2 of academic year 2009-2010, semesters 1 and 2 of academic 2010-2011 and semesters 1 and 2 of academic year 2011-2012.

    ·Statements with English translations from visa holder's former friends from Hong Bang University International attesting to attending the institute with the visa holder between the years 2008 and 2011. Three of the students provided a copy of their graduation certificates from Hong Bang University International

    ·Copy of a Certificate II in Transport Logistics issued by Australian Based Training Pty Ltd on 6 June 2012 which states that the visa holder has fulfilled the requirements for the issue of a Licence to operate a forklift truck

    ·Copy of a record of attendance in the visa holder's name for a Warehouse and Forklift Course between 26 April 2012 and 29 June 2012 at Navitas English Pty Ltd in Fairfield, NSW

    ·Letter from the visa holder's employer Dupond Industries Pty Ltd attesting to his full-time employment with the company since 10 April 2013

    ·Copy of the visa holder's PAYG summary for the years 2014, 2015 and 2016 indicating Dupond Industries Pty Ltd as the employer for all years including a payslip for 26 June 2018

    ·Copy of a receipt dated 30 January 2012 in the visa holder's name for payment for a course for a Certificate III in Aged Care at North Sydney Institute, Meadowbank College NSW.

    ·Copy of an email sent to the visa holder on 15 April 2011 confirming an IELTS (International English Language Test Systems) booking on 16 April 2011

    ·Copy of a residential investment loan approval from a bank dated 28 May 2018 in the visa holder's name for the amount of $280,000 with a second copy reflecting the loan amount as $240,000

    ·A copy of a letter dated 13 July 2018 from the visa holder's mother Thanh Huong PHAN's doctor listing her medical conditions from 2006 to the current time and medication prescribed between 2015 and 2018

    ·Copy of Thanh Huong PHAN's medical files with translations from Vietnam

    ·Copy of Thanh Huong PHAN's Australian medical files including tests and results

    ·Document regarding Healthcare in Vietnam accessed from the Australian Trade and Investment Commission ('Austrade') website

    ·Document regarding Healthcare in Vietnam accessed from the 'InterNations' website

11. In his Statutory Declaration the applicant described his circumstances including life with his mother prior to their arrival in Australia. He stated that his parents' health started to deteriorate in 2006 and his father passed away not long afterwards. He further stated that following his father's death his mother developed Hepatitis B and TB (Tuberculosis) of the bones. He added that the family business had to close and subsequently his sister sponsored their mother for a Contributory Parent (Subclass 143) visa.

12. The applicant stated that he enrolled in a four-year accounting course at Hong Bang University in 2008, commencing studies in September of that year and scheduled to finish in June 2012. He further stated that, although he was enrolled at university, he had to take care of his mother which made it difficult for him to focus on his studies. He added that he studied at home as much as he could and focussed on obtaining a good result in IELTS (English Language Testing System) as he intended to resume his studies in Australia.

13. The applicant’s representing migration agent stated that the visa holder's mother was diagnosed with liver disease at the time he signed the Form 47A and he could no longer focus on his studies and that he and his sister had a 'falling out' and as such he had to find work to support him and his mother.

14. The applicant stated, since the health care system in Vietnam is unlike that in Australia whereby Medicare is available to residents, everyone must pay for medical treatment in that country. He further stated that as his mother was the only person he had left in Vietnam she was his first priority and he had to find a job to cover medical expenses and his tuition fees. As such he found a job in a Nike store in Ho Chi Minh City between May and August 2010 as his mother would not have been able to continue her medical treatment and would have died.

15. The applicant stated that he was enrolled at Hong Bang University from 2008 to 2012 and was studying full-time for this period. However, as his mother's health deteriorated, he had to spend more time with her and was unable to pass all his subjects. He maintained at the time that there was no incorrect information provided.

    Reasons

16. The Tribunal has considered the information provided by the applicant in the response to the delegate’s information drawn from Departmental investigation in the applicant’s native land.

17. The applicant maintained that he was in full-time study at the time of application lodgement. In his answers in the Questionnaire for Dependants over 18 years of Age form, in support of the Contributory Parent visa application, he claimed that he had 'many assignments and group work to do' and all his time was committed to studying full time. His migration agent indicated that, although he was engaged in studies, the applicant did not do well - academically.

18. The Tribunal has revisited all the evidence concerning the applicant’s university attendance. It is satisfied that the Departmental information is reliably sourced and gives it great weight. It is readily apparent from the information provided to the Department that the applicant was not studying full-time as claimed. He was and has admitted to working and, in all probability, it was full time. The applicant has claimed, in mitigation, that his need to work was brought on by a combination of his mother’s health care costs and his tuition fees. However, the delegate’s adverse information indicates that the applicant was not studying full time at the time he claimed to be studying. Evidence of this is that his Hong Bang International University (Vietnam) transcript indicates he did not engage in any course requirements at all from June 2010. He claimed he re-enrolled and was studying at the time he made the declaration to the Department. The Tribunal gives this claim in mitigation little weight in view of the applicant’s poor credibility.

19. Thus, it is plain from the evidence sourced from authoritative sources that the applicant maintained that he was in full-time study at the time of application lodgement. In his answers in the Questionnaire for Dependants over 18 years of Age form, in support of the Contributory Parent visa application, the applicant claimed that he had 'many assignments and group work to do' and all his time was committed to studying full time. His migration agent indicated that although he was engaged in studies, the applicant did not do well academically.

20. However, confirmation from Hong Bang University indicates the applicant’s attendance was declining between 2008 and 2010. More importantly he did not sit any further exams from June 2010. This indicates that although the applicant may have been enrolled in a full-time course of study at the time of application lodgement, effectively he was not actively studying full-time as he claimed in the documentation called ‘Questionnaire for Dependants over 18 years of Age’.

21. According to the information obtained from Hong Bang University by the delegate, a student can sit for the same exam a second time - that is if they do not attend or fail the first exam. The applicant did not attend exams for three of five subjects in both first and second exams in the school year 2009 - 2010 (February 2010 to June 2010). He had the opportunity to sit the second sitting of exams for the second semester of the 2009 -2010 academic year. However, the information discloses that he did not sit three of five subjects for which he was enrolled. Importantly, from June 2010, the applicant did not attend any further exams. The Tribunal is satisfied from the reliable information that the applicant’s academic behaviour is not indicative of a genuine full-time student as claimed in his visa application.

22. Thus, in summary, the Tribunal finds that he did provide incorrect answers to questions 1, 2, 3 and 5 of the form, ‘Questionnaire for Dependants over 18 years of Age’ and also at Question 24 of Form 80 which was a document in support of his mother Thanh Huong PHAN's application for a Contributory Parent visa. On that latter occasion he claimed that he was dependent on his mother because he was a full-time student at the time he submitted the document. Plainly this was incorrect as he was working.

23. For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

24. 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).

25. 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

26. The correct information was that the applicant was not studying full time at the time of application for the visa - as claimed. In fact, the investigation by the Department disclosed information which indicated that he did not sit three of five subjects for which he was enrolled in the school year 2009 - 2010 (February 2010 to June 2010). Importantly, from June 2010 the applicant appears not to have attended any further exams.

27. The Department received an allegation that the applicant was working full time from 2009 to 2010. However, in his response to the Notice, he advised he was working for a short period only between May 2010 to August 2010. As against his claim is the evidence of his poor attendance at University exams post 2010 which suggests, logically, that the allegation has substance.

28. The Tribunal gives this consideration no favourable weight.

    ·     the content of the genuine document (if any)

29. Not applicable.

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

30. The applicant claimed on several occasions in the ‘Questionnaire for Dependants over 18 years of Age’ dated 11 April 2011 that he was ‘dependent’ on his mother, the primary applicant. He claimed he was unable to look for work because of full-time study commitments including the amount of assignments and group work he was required to complete. In the light of the delegate’s investigation, patently this statement was false.

31. If the applicant had provided the correct information at the time of application (that he was not studying full-time) it would have led the Department (in all probability) to investigate further whether he was still actually ‘dependent’ on his mother for financial support and able to meet the definition of ‘dependent’ for the purposes of cl.143.321 and reg.1.12 ('Member of the family unit').

32. The applicant misrepresented himself to the Department when he declared that he was studying full-time. Thus, as a corollary, the incorrect information prevented the Department from properly assessing whether he was ‘dependent’ on his mother for financial support and able to meet the required criteria for the visa.

33. The Tribunal is satisfied that the decision to grant the visa was based wholly on the incorrect information provided by the applicant which was that he was in full-time study and was reliant on his mother for financial support. As the integrity checks conducted by the Department on 5 December 2017 have indicated the applicant was not studying full-time at the time of application.

34. The Tribunal gives this consideration no favourable weight.

    ·     the circumstances in which the non-compliance occurred

35. The Department received information on 12 August 2015 that the applicant had provided incorrect information in his application for a Contributory Parent visa in claiming that he was ‘dependent’ on his mother.

36. The applicant declared in his application that he was committed to full-time study at University and at an English language course and that he was unable to look for work. Integrity checks conducted by the Department in Ho Chi Minh City, Vietnam, on 5 December 2017 with Hong Bang International University indicate that although he was enrolled with the university the applicant had ceased studying in June 2010 and had not attended all his exams between 2009 and 2010. In fact, he did not attend any exams for the 2010-year exam. Further information indicates the visa holder was employed in Vietnam in a full-time capacity between 2009 and 2010.

37. The applicant admitted in his response that he worked for a short period of time claiming it was to pay for his mother's medical costs and that although he was studying full-time he was not passing his exams because he had to focus on his mother's health. He maintained that this was for a short period of time only and that he was substantially reliant on his mother for his living expenses.

100.   In view of the delegate’s information and the applicant’s behaviour, the Tribunal gives the applicant’s false claim no favourable weight.

·the present circumstances of the applicant

101.   The applicant married in July 2013 and claimed to have lived with his wife Thuy Hoai Thu LE whom he has sponsored for a Combined Partner (Subclass 820/801) visa and his mother at the home he has purchased. He claimed that he bought the house with some of the proceeds of the sale of his mother's property in Vietnam. He was granted a loan for a mortgage for the outstanding amount. The applicant has been working as a forklift driver with Dupont Industries in Wetherill Park since April 2013. He claimed his (former) wife worked as a barista at David Jones in Bondi, NSW.

102.   The applicant stated that he takes care of his mother who is reliant on him and who has numerous medical ailments. He has provided the Tribunal with medical and psychological evidence in support of this claim.

103.   He added that if his visa is cancelled it would cause her and his (then) wife severe hardship to their physical and mental well-being and would impact on their ability to remain living in their home. He further added that his mother has no other person to look after her and if she were to be parted from him and her home, or to return to Vietnam with him, her health could irreversibly decline.

104.   Subsequent information available to the Tribunal at time of application and put to the applicant at hearing indicates his marriage has ended. Confidential information given to the Department (and subject to a s.376 Certificate) indicates that the applicant was involved in a fraudulent marriage and Partner visa application for profit and a satisfactory visa outcome for his then wife. His former wife’s visa was cancelled consequentially upon his visa cancellation. The applicant informed the Tribunal that his former wife had divorced him because he had ruined her dream of permanent residency. However, he claimed in the hearing to have been still married to her in 2018 at the time of the visa cancellation. He was unable to adequately explain how he and his ex-wife were living separately and apart for 12 months as required for divorce prior to the decree nisi. However, he has also indicated in the hearing (contrary to advice given to the Department) that his former wife had a separate residence in Parramatta. He was living with his mother in her house ‘because his mother was more important to him after her liver operation’ and he also visited the former wife.

105.   It is the view of the Tribunal that, on balance, the allegations about the applicant’s contrived marriage are valid.

106.   The Tribunal finds this additional information (when viewed in the light of other incorrect information furnished to the Department by the applicant) indicates that the applicant is a person of poor credibility.

107.   The Tribunal gives the false claim no favourable weight to the applicant.

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

108.   The applicant provided a response to the Notice and has maintained that there has been no non-compliance.

109.   Given that a response from the applicant was received, the Tribunal gives this consideration some favourable weight to the applicant.

·     any other instances of non-compliance by the applicant known to the Minister

110.   Based on the information before it the Tribunal is unaware of any other instances of non-compliance.

111.   Therefore, the Tribunal gives this consideration some favourable weight to the applicant.

·     the time that has elapsed since the non-compliance

112.   The non-compliance occurred in April 2011. The applicant previously stated to the delegate that the allegation was motivated by malicious intent by a related family member who has a grudge against him.

113.   The Tribunal acknowledges that approximately 9 years is a significant length of time since his arrival and the applicant has settled in Australia. However, the continuing issues with the applicant’s credibility particularly involving his former marriage and Partner visa application are of continuing concern to the Tribunal.

114.   As such the Tribunal gives this consideration minimal favourable weight to the applicant.

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

115.   The Tribunal is not aware of any breaches of the law by the applicant.

116.   The Tribunal gives this consideration some favourable weight to the applicant.

·     any contribution made by the holder to the community.

117.   The applicant’s PAYG summaries and payslip indicate he has been continuously employed in Australia as a forklift driver since 2013. As indicated by the more recent medical reports it appears that he has been carer to his mother. However, there is no information available to indicate any significant contribution to the community.

118.   The Tribunal gives some favourable weight to this consideration for the applicant.

119.   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 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.

Consideration / discussion of the prescribed factors where relevant or not relevant; any matters raised by the applicant in response to the s.107 notice; and any consideration of the Departmental PAM 3 guidelines, which cover such matters as:

·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

120.   If the applicant’s visa were cancelled, he would become an unlawful non-citizen and liable to be detained under section 189 and removed under section 198 of the Act. He would also be eligible to apply for a Bridging E (subclass 050) visa to allow him to remain lawfully in Australia while he makes arrangements to depart.

121.   Additionally, the applicant would be subject to Section 48 of the Act which means that he would have limited options to apply for further visas in Australia, the success of which would depend upon him meeting the relevant criteria. Cancellation in this case would result in the application of Public Interest Criterion (PIC) 4013 to the applicant which means that he would be subject to a three-year exclusion period which may prevent the grant of certain visas to him that period.

122.   As such, the Tribunal gives this consideration some favourable weight to the applicant.

·whether there would be consequential cancellations under s.140

123.   There would be no consequential cancellations under s.140 if the applicant’s visa were cancelled. The Subclass 820 Partner visa granted earlier to the applicant’s ex-wife (Thuy Hoai Thu LE) as part of a Combined Partner visa with the applicant has already been subject to cancellation under section 140(2) of the Act. The former wife has returned to Vietnam.

124.    The Tribunal gives this consideration neutral weight to the applicant.

·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.

125.   There is no information before the Tribunal that indicates that the visa cancellation would impact on Australia's international obligations.

·any other relevant matters, including the degree of hardship that may be caused to the applicant and any family members.

126.   The applicant has argued that he is the sole carer of his mother (an Australian citizen) who has a multiplicity of ailments (including being operated on for cancer) and which have been put before the Tribunal (T1, ff.84-90). His mother (it appears) entered the country with a seriously poor medical history. The applicant’s representative opines:

In addition to the medical documents referred to above, the letter of support from Dr Diep Giang (see Attachment 4), who is Ms Phan’s family doctor, clearly sets out Ms Phan’s numerous conditions and the level of care and support—including physical and mental—that she requires from the Applicant, which demands his continued presence and stay in Australia.

Dr Giang’s letter of support includes reference to chronic pain and inflammation, which requires physiotherapy, as well as the consequential depression, anxiety, insomnia, and tension headaches—for which she receives additional counselling from a psychologist—as serious and significant reasons that Ms Phan desperately needs the Applicant to remain with her. Importantly, Dr Giang’s letter makes clear that Ms Phan’s suffering includes detriment to her mental and physical health that has been exacerbated by the looming threat of the Applicant’s departure and removal from Australia. We respectfully request that the Presiding Member consider this letter of support with appropriate and significant weight in your consideration and exercise of your discretion.

127.   The Tribunal has considered the claims of the applicant’s mother’s doctor. It is a fact that his mother entered the country with a seriously poor medical history (see doctor’s diagnosis provided to the Tribunal). Remarkably, when this medical history is considered, his mother (Than Huong PHAN) seems to have lived an expansive life despite the various maladies described to the Tribunal by her doctor. For instance, she has performed as a member of the Vietnamese Catholic choir for the last 9 years says her supporter - Fr Paul Van Chi Chu. She has been also involved with the Vietnamese Artists Association – they inform. She was driving a car until an accident in 2019 she informed in oral evidence.

128.   Concerning her health status, the applicant’s mother attended Fairfield Hospital on 14 November 2019 for a “left foot halluc valgus” operation. Remarkably, the Final Report document (provided to the Tribunal by the applicant) informs: Carer: None recorded. Yet the applicant has continually insisted to the Tribunal on his role as his mother’s lone carer and steadfast supporter. The Tribunal gives this information significant weight against a favourable view of the hardship claims made by the applicant. He and his supporters insist that the applicant must remain in Australia to care for his mother. Logically, the Tribunal finds it must juxtapose this Final Report information (regarding her not having a registered carer) against his claims he is her carer and the Tribunal’s overall finding that the applicant is a person of proven poor credibility.

129.   The supporter letters to the Tribunal universally insist that the applicant must remain in Australia otherwise his mother’s quality of life will be irretrievably impugned. When reference is made to the presence of his sister the Tribunal is informed:

“the relationship is over” because of “unnecessary conflicts and misunderstood (sic)” (Catholic priest).

“Unfortunately, mother and son did not get along with Ms Thanh Huong PHAN's daughter, married and having a little child. The friction was so tense that mother and son had to move out”. (Vietnamese Womens’ Association)

130.   The Tribunal has read the claims but gives them little weight because they are based on self-declaration and have not been validated by the applicant’s sister. They seem to be part of an effort to sweep away the applicant’s sister’s participation in the family. They try to reinforce what is essentially the applicant’s say-so – assisted by sympathetic supporters. In fact, the applicant and his mother came to Australia to reunite with the sister. She was the one that set up the pathway to emigration An opinion was given in the hearing that the applicant’s sister and her then husband were incensed when the applicant’s mother failed to give them financial assistance at a crucial time in favour of buying herself a house following the sale of the former home in Vietnam. The sister and her husband insisted they had given her and the applicant the opportunity of a life in Australia through the Contributory Parent visa.

131.   The Tribunal sees the efforts to brush away any potential assistance that could be given by the sister or her further participation in family care - as a tactic. The aim of this tactic is to reinforce the applicant’s hardship claims. Thus, while acknowledging the claims made in oral and written evidence the Tribunal finds they are in many cases hearsay and at other times embellished to strengthen the applicant’s claims. The Tribunal gives them little favourable weight to the applicant.

132.   The Tribunal is aware of the applicant’s mother’s medical history. Furthermore, she continues (according to her doctor) to suffer these maladies despite the presence of the applicant tin Australia. She will obviously continue to do so whether he leaves the country or not. An argument has been raised that the applicant’s absence would increase her mental health problems. The Tribunal notes her doctor’s claims regarding this issue. However, there is no evidence presented from a psychologist or psychiatrist to back these claims. The Tribunal gives this claim some favourable weight. But against this is the fact that the only realistic hardship claim that the applicant can raise relates to his mother’s health. At the same time his own history is replete with untruths and the dubious circumstances surrounding his former marriage. Even though he has presented official reports to strengthen his hardship claims they contain information of concern. The Tribunal is of the view that, when weighed up, rather than being genuine hardship claims sourced from his mother’s ill-health they are self-serving and a prop to support his efforts to remain in Australia.

133.   The Tribunal has considered the evidence presented by the applicant and his argument that to cancel his visa would involve his mother in significant hardship due to her ill health and care needs. He and his mother insist that his mother has no other person to look after her. If she were to be parted from him and her home, or decide to return to Vietnam with him, her health could irreversibly decline. Such hardship, he maintains, is a ‘compelling reason’ for not affirming his visa cancellation. Other testimonials have recently been submitted in his favour relying on his representative’s claim that

“a decision to cancel the applicant’s visa and remove him from Australia would effectively remove the assistance and support that Ms Phan certainly requires in order to continue her interaction and contribution to these communities and Australia broadly”.

134.   The Tribunal has noted the considerable support enjoyed by the applicant’s mother along with her ongoing health issues and her son’s claimed assistance. It gives the applicant’s mother’s hardship claim significant favourable weight. However, this consideration must be weighed against the applicant’s overall poor credibility as an applicant. The applicant’s mother does have a relative - an Australia-resident daughter. It is claimed that they have a strained relationship. None of these claims have been validated by his sister. Again, this assertion must be weighed against the applicant’s poor credibility. The Tribunal has been furnished with the applicant’s and his mother’s claims but weighs this against his general credibility problem. The Tribunal is unaware of the real reason why the relationship is strained, if at all, but the Tribunal is unconvinced that it is irretrievably broken as claimed. The important fact remains that the applicant’s mother does have an immediate family member in Australia who could provide her with continuing family support. She will not be left alone.

135.   Significantly, the applicant’s mother has been granted Australian citizenship in recent years. Importantly, she would be able to continue to avail herself of the high-quality health care she enjoys in Australia and the support networks cited which have so far assisted her to have a more comfortable life. If she were required to relocate to other accommodation, she could call on the appropriate Government support services to assist her. She might even repair the claimed ‘strained relationship’ with her daughter - if that in fact exists. Her daughter, the Tribunal is informed by the applicant’s supporters, is now a single mother. Her son or daughter, alternatively, could negotiate suitable accommodation for their mother with the advice of her doctor and alleviate any temporary dislocation. Furthermore, it appears that the applicant (as the owner of a house) has the financial wherewithal to be able to counterbalance any immediate and temporary financial stringency.

136.   The Tribunal is unconvinced that there is any obligation or necessity for the applicant’s mother to return to Vietnam with the applicant - as suggested by him. Her doctor is obviously not in favour of the suggestion. The Tribunal gives the claims found in the representative’s submission some favourable consideration - particularly those from professionals. At the same time many of the claims are assertions made by the applicant’s representative and must be viewed through the prism of the applicant’s proven poor credibility. Some claims are based on his say-so or other hearsay and thus have been given minimal favourable weight by the Tribunal.

137.   The Tribunal has examined the full gamut of the applicant’s poor visa history. It is the Tribunal’s view that this consideration far outweighs any potential or actual favourable hardship considerations regarding him or his mother.

138.   The Tribunal, having had regard to all the relevant circumstances, is convinced that more favourable weight should be given to affirming the cancellation.

139.   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 and that the visa should be cancelled.

DECISION

140.   The Tribunal affirms the decision to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Michael Cooke
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

5Interpretation

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

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

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

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

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

97Interpretation

In this Subdivision:

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

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

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

98Completion of visa application

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

99Information is answer

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

100Incorrect answers

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

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.

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.