Duong (Migration) - [2025] ARTA 418

DUONG (MIGRATION) [2025] ARTA 418 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Quang Hoang Duong
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2445079

Tribunal:Senior Member K. Raif
Place:Sydney
Date: 3 March 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

Statement made on 03 March 2025 at 12:31pm
CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – incorrect answers were given or provided – failed to inform the Department of the changes in circumstances – a dependent child and a member of the family unit of his mother – marriage occurred after subclass 820 visa was granted – no requirement at the time of decision that the applicant must continue to be a dependent child – no ongoing dependence requirement at the time of visa grant – decision under review set aside
LEGISLATION
Migration Act 1958, ss 104, 107,109
Migration Regulations 1994, r 1.03
CASES
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Vietnam born in September 1994. He was granted the Partner (Residence) visa in August 2020. In August 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant may not have complied with s. 104 of the Act. The primary decision record indicates that the applicant did not respond to the NOICC. His visa was cancelled in November 2024. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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.
Did the notice comply with the requirements in s 107?
In the present case, there is a question as to whether the Notice issued by the Minister’s delegate complied with s 107. The applicant claims that the NOICC misspelt his name and, as a result, he did not receive the Notice and did not have the opportunity to provide his response to the Notice. The applicant submits that the NOICC was defective and invalid because it was addressed to Quong Hoang Duong instead of identifying his correct name Quang Hoang Duong.
The Tribunal accepts that a valid NOICC is a precondition to the exercise of the cancellation power. However, not every error in the NOICC will invalidate it. The amendments to the legislation inserted by C2023A00026 apply to documents given on or after 1 November 2023. Relevantly, s. 494E(2) provides that the notice is taken to comply with the content requirements if there is substantial compliance with those requirements and the failure to strictly comply with those requirements does not, or is not likely to cause substantial prejudice to the person’s rights.
Section 494E(4) provides that there may be substantial compliance even if there is an ‘error, omission, misstatement or misdescription in the document’. The Explanatory Memorandum to the bill inserting s 494E indicates that it is intended for an error contained in the document itself such as a “misspelling of a name, a typographical error, or information placed under the wrong heading”: Explanatory Memorandum to the Migration Amendment (Giving Documents and Other Measures) Bill 2023 at [62].
It is significant that the Explanatory Memorandum offers an example of a misspelling of a name as the type of error that the amendment is designed to address.
In the present case, the NOICC misspells one letter in the applicant’s first name. The two other names are spelt correctly. In the Tribunal’s view, a misspelling of a single letter in the first name only constitutes substantial compliance.
The Tribunal has considered whether failure to strictly comply with the requirement had, or was likely to cause substantial prejudice to the applicant’s rights.
The applicant submits that he never received the NOICC and was denied the opportunity to provide comments. In his declaration dated 25 February 2025 the applicant states that he only became aware of the NOICC when his wife’s visa application was being processed and she was asked to comment on that information. The applicant states that due to the error in his name, he would not have recognised the letter as being addressed to him.
However, the Tribunal is not convinced that the applicant did not receive the NOICC because of the misspelling of his first name. If the Notice was addressed to the applicant’s correct address, with the correct spelling of his middle name and surname and a single misspelt letter in his first name, the Tribunal is of the view that the applicant would have recognised that there was very little likelihood of another person, with almost identical name (i.e. identical middle name and surname and only a slight variation in the first name) sharing his address. The applicant would have recognised that the letter was addressed to him.
The Tribunal notes that the NOICC was sent to the address provided by the applicant in relation to his visa application. The applicant told the Tribunal that he had moved out of that address and that his step-father continued to live at that address. The applicant states that they did not check the mailbox regularly. In the Tribunal’s view, the non-receipt of the NOICC did not occur because of the misspelling of the applicant’s name but may have occurred for another reason.
The applicant has not identified any other concerns with the NOICC. The Tribunal has formed the view that the failure to strictly comply with the Notice requirement did not cause substantial prejudice to the applicant’s rights (and that non-receipt occurred for other reasons).
The Tribunal is also satisfied the Minister’s delegate had reached the relevant state of mind to engage s. 107 and that the other statutory requirements in s 107 were met. The Tribunal finds that the NOICC complied with the statutory requirements. As such the Tribunal has formed the view that the NOICC was valid and gave rise to the cancellation power.
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. 104 of the Act.
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Partner visa in May 2016 on the basis of being a dependent child, and a member of the family unit, of the primary applicant (his mother) Ms Nguyen. In response to a question on the application form 47SP the applicant stated that he was ‘never married’ The applicant also made an undertaking to inform the Department in writing if there was any change in his circumstances.
The applicant was granted the temporary Partner visa on 3 August 2016. In September 2018 the applicant submitted additional documents in support of the application for the Partner (Residence) subclass 801 visa. On the application form, the applicant again claimed to be a child of the primary visa applicant and stated, with respect to his relationship status, that he was ‘never married’. The applicant was granted the Subclass 801 visa in August 2020.
In December 2021 the applicant sponsored Ms Thi Tra My Nguyen for a Partner visa. In that application, Ms Nguyen submitted a copy of the couple’s marriage certificate dated 5 September 2019 and a copy of their child’s birth certificate showing the child was born in August 2019.
The Tribunal finds that when completing the application form, the applicant stated that he was never married. That circumstance had changed when the applicant registered marriage with Ms Nguyen in 2019 so that an answer on the form became incorrect. The applicant wrote to the Department in March 2022 stating that his circumstances had changed. In his declaration of 25 February 2025 and oral evidence to the Tribunal the applicant claims he forgot to do so earlier as he was preoccupied with other things. However, the Tribunal does not consider this to constitute compliance with s. 104 because the Tribunal does not consider that notification that occurs nearly three years after the change in circumstances became known to the applicant could be considered to be notification that occurred ‘as soon as practicable’.
The Tribunal finds that the applicant did not comply with s. 104 of the Act. The Tribunal finds that there was non-compliance with s.104 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 reg 2.41 of the Regulations.
The correct information
This is not relevant in the present case.
The content of the genuine document (if any)
This is not relevant in the present case.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant made the application for the Partner visa on the basis of being a dependent child and a member of the family unit of his mother. There is no suggestion that he met the primary criteria for visa grant or that he met any alternative definition of being a ‘member of the family unit’. The delegate found that the term ‘member of the family unit’ required the applicant to be a dependent child of his mother and that means a child who is not married or engaged to be married, as relevantly defined in r. 1.03.
In his submission to the Tribunal of 24 February 2025 the applicant states that had he notified the Department of the changes in his circumstances, he would still be eligible to be granted the Subclass 801 visa because at the time of application he satisfied the requirements by being a dependent child of his mother and, at the time of decision, he was only required to be the holder of the Subclass 820 visa and for his mother to have been granted the subclass 801 visa, which he met. The applicant submits that there was no requirement for him to remain dependent after the grant of the subclass 820 visa and his marriage did not impact his eligibility for the subclass 801 visa. The applicant submits that his marriage occurred after his subclass 820 visa was granted and after his mother provided evidence for the purpose of subclass 801 visa and he had inadvertently failed to disclose new information.
The Tribunal accepts the applicant’s submission that, at the time of decision, cl. 801.321 merely required the applicant to be a holder of a particular type of visa and for the primary applicant to have been granted a subclass 801 visa. It is not in dispute that in this case, the applicant held the prescribed type of visa – subclass 820 – and that his mother who was the primary applicant was granted the subclass 801 visa. There is no requirement at the time of decision that the applicant must continue to be a dependent child or a member of the family unit of the primary visa applicant. That is, the applicant did not cease to be eligible for the grant of the Subclass 801 visa because of his marriage, even if he did cease to be a dependent child of his mother.
The Tribunal is not satisfied that the decision to grant the visa was based, even partly, on incorrect information.
The circumstances in which the non-compliance occurred
In his submission to the Tribunal the applicant states that he and Ms Nguyen held an engagement party in November 2018 and a wedding reception on 28 November 2018 and they formally married on 5 September 2019. Their child was born in August 2019. The applicant told the Tribunal that he and Ms Nguyen formed a commitment to marry around October 2018 and they registered marriage a year later once their child was born. When he sponsored his wife in December 2021, the applicant states he had formally notified the Department of his failure to disclose his marriage. The Tribunal is mindful, however, that s.104 required the applicant to notify the changes ‘as soon as practicable’, not at some later time some years before the visa grant when it became apparent to the applicant that the incorrect information would come to light.
The applicant states that ‘he is very sorry’ for the unintentional mistake which, he claims, was an innocent mistake. The applicant refers to the reasoning in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 to state that a statement made intentionally or accidentally cannot be considered false or misleading. The Tribunal considers that submission unhelpful as Trivedi was concerned with a very different legislative provision in PIC 4020. Here, the issue is not whether the applicant had provided a false or misleading statement and his intention to mislead is not at issue. Section 104 imposes a positive obligation upon the applicant to inform of changes in his circumstances. It is not concerned with the provision of false or misleading information and one’s knowledge that such information is false or misleading.
The applicant told the Tribunal that he did not inform the Department about the changes in his circumstances only because he forgot and was too busy at work, he had no intention to mislead the Department.
The applicant also refers to the Departments Procedural Instructions, issued in July 2023, which (the applicant claims) state that cancellation may only be considered if there is substantial evidence of fraud. To the extent that the DPI do state so, the Tribunal considers these to be inconsistent with the legislative provisions. Section109 provides that a ground for cancellation arises if there is non-compliance with a number of provisions whether or not there is substantial fraud. These provisions make it clear, for example, that an answer to a question may be incorrect even if the applicant does not know it is incorrect. The legislation does not indicate that an element if fraud is a precondition to the exercise of the cancellation power. The circumstances of the non-compliance, including any fraud, would be relevant to the consideration of discretion but even then, it is only one of the relevant considerations and not a determinative one.
The present circumstances of the visa holder
The applicant refers to his genuine marriage. He states that he and Ms Nguyen have known each other since childhood and maintained a committed relationship for over a decade and both are committed to their child. Both the applicant and Ms Nguyen provided statements to the Tribunal on 25 February 2025 referring to their genuine relationship and commitment to each other, as well as a copy of their marriage certificate, social photographs and the child’s birth certificate.
The applicant states that his wife stays at home to care for the child while he is the main breadwinner for the family. The applicant states that he and his child depend on his financial and emotional support.
The applicant states that he has become accustomed to life and freedoms in Australia which he would not be able to enjoy in Vietnam. He likes the Australian environment and wants to bring up his child in Australia. The applicant referred to his employment as a courier (he provided to the Tribunal an employment reference) and his past employment.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
As noted above, the applicant notified the Department of the changes in his circumstances in March 2022. There are no other known instances of non-compliance.
Any other instances of non-compliance by the visa holder known to the Minister
The applicant’s child was born in August 2019, before the applicant was granted the visa. He had not informed the Department about this change in his circumstances until 2022.
The time that has elapsed since the non-compliance
The applicant was granted the subclass 801 visa in August 2020 and the obligation to inform continued until the visa grant. Over four and a half years passed since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There are no known breaches of the law.
Any contribution made by the holder to the community.
The applicant claims that he has been a law-abiding citizen and has contributed the community through his volunteering at the Temple and the payment of taxes. The applicant presented a statement from a religious leader, attesting to his involvement in the community and good character, as well as his taxation records. The Tribunal is prepared to accept that the applicant has made that contribution to the community.
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.
Whether there would be consequential cancellations under s 140.
There are no persons whose visas would be subject to consequential cancellation. The applications made by the applicant’s spouse and child may not be successful if the applicant cannot act as the sponsor but there would not be any consequential cancellations.
If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.
The applicant has a six-year-old son who resides in Vietnam. The applicant states that he wants his son to be brought up in Australia, noting that his son had been deprived of his father’s presence during his formative years. The applicant states that his son’s emotional development has been hindered by the absence of a father figure. The Tribunal is mindful that, even if that is the case (and the applicant presented no probative evidence whatsoever to support these claims), that is not the consequence of the decision on the applicant’s visa. At the time the child was born, the applicant did not have a permanent visa and could not act as a sponsor. He withheld information about his marriage and the birth of the child until well after he was granted the permanent visa. The applicant then waited over a year, after he became a permanent resident, before sponsoring his wife and child for a visa. In these circumstances, it cannot be said that past separation between the applicant and his child is solely due to the cancellation of the applicant’s visa which occurred fairly recently.

The applicant claims in his submission to the Tribunal that his wife and son have been in Vietnam awaiting the opportunity to reunite with him in Australia. The applicant states that his wife gave up a teaching job offer because she believed they would soon be travelling to Australia. The applicant states that he would not have the income in Vietnam to support his family.
The applicant told the Tribunal that the child would have access to better education in Australia as his family is not well off and, in Vietnam, the child would have to study hard to get into a good school or have access to a large amount of money which he cannot afford.
The Tribunal notes that the child has never lived in Australia where everything, such as the language, the environment and the schooling system would be different and would require a degree of adaptation. This is not the case where the cancellation of the applicant’s visa means the child will be required to leave the country that he has become used to. In this case, the child has never been to Australia and has not lived here. Neither is this the case where the cancellation of the applicant’s visa would result in the applicant being separated from his son, as it is open to the applicant to relocate to Vietnam to be with his partner and child.
The applicant states that he wants his son to grow up in Australia. However, the Tribunal does not consider that the best interests of the child would only be served if the child resides in Australia. In the Tribunal’s view, such interests would be best served if the child has a stable environment and the support of both parents, which can happen in any country.
As for the applicant’s claim that he would not be able to support his family, the Tribunal is mindful that this claim is entirely unsupported by any evidence. There is no evidence that the applicant has sought employment and has not been able to find gainful employment in Vietnam. There is no evidence of any inquiries he may have made. There is no evidence as to what job options there may be for him and whether his employment income would cover the family’s needs. There is also no evidence as to any financial support he may receive from other sources, including family in Australia. On the limited evidence before it, the Tribunal does not accept that the applicant would be unable to financially support his family in Vietnam and that this would have an adverse effect on the child.
Overall, the Tribunal does not consider that the cancellation of the applicant’s visa adversely affects the child’s best interests.
Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.
In his submission of 25 February 2025, the applicant claims that he is used to the freedoms and rights afforded in Australia and if he was to live in Vietnam, he could be persecuted as he would raise comments against the “official and government in Vietnam”. The Tribunal considers that submission entirely unpersuasive and opportunistic. The applicant has not presented any evidence of having any interest in the political situation in Vietnam (or, indeed, anywhere). There is no evidence that he has ever expressed any political views or any criticism of any officials or government in Vietnam. There is nothing before the Tribunal to indicate that he has any intention of doing so if he was to live in Vietnam.
In oral evidence the applicant told the Tribunal that he had ‘never thought’ about political expression as his priority has been his family and he told the Tribunal he would not express any anti-government views as that might put him or his family at risk. The applicant does not suggest that he has, or has ever had, any interest in political expression or had ever engaged in expressing political views in the past. The applicant does not suggest that he has any interest in the political situation in Vietnam or that he has any intention to engage in political criticism. The Tribunal has formed the view that this claim is nothing more than an attempt by the applicant to retain his visa.
The Tribunal does not consider that the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulment obligations.
The applicant’s immediate family (wife and child) reside in Vietnam while his mother and sister reside in Australia. If the applicant was to return to Vietnam, this would seem to further, rather than breach, the family unity obligations.
Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.
If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will become an unlawful non-citizen and could be detained and removed from Australia. The applicant would have limited options to make other visa applications onshore due to the operation of s 48 and would be subject to an exclusion period in PIC 4013 in relation to some future visa applications. The applicant will also lose the entitlements he has acquired as a permanent resident of Australia and will not be eligible for Australian citizenship if his visa is cancelled.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant submits that the cancellation of the visa has caused significant distress and hardship to his family.
The applicant states that his entire family depends on him financially and he would not be able to work and support his family in Vietnam as he had not completed his degree and has no work experience there. The applicant told the Tribunal that he has been able to find a job in Australia and support his family despite his income not being high, but there is more competition in Vietnam and it would be ‘impossible’ for him to find a job in Vietnam to support his family. However, the applicant also told the Tribunal that he had never sought employment in Vietnam and had not worked in Vietnam. The applicant presented no evidence to support his claim that he would be unable to find gainful employment in Vietnam or that he would be unable to financially support his family. In such circumstances, the Tribunal does not accept the applicant’s evidence that he would not be able to support his family in Vietnam.
The applicant states that his wife has given up a teaching post and will be unable to resume her teaching career as her qualification would no longer be recognised. He told the Tribunal that his wife left the job because of the pressure and ‘unfair competition’ and also because there was a need to care for elderly parents and their child and he asked her to stay at home and he denies that his wife’s qualification is no longer recognised (claiming it was a mistake or misinterpretation).
The applicant states that he is used to life in Australia and his mother and sister are in Australia and it would be hard for him to start a new life in Vietnam. The Tribunal accepts that, given the length of his stay in Australia, the applicant has formed significant links in this country. The Tribunal is mindful that, when migrating to Australia, the applicant was able to start a new life in Australia. His ability to do so in the past does not support the applicant’s claim that it would be hard for him to start a new life in Vietnam.
The applicant provided to the Tribunal evidence relating to his wife’s educational qualification and a copy of employment contract, stating that his wife had declined a job offer and, he claims, her degree would no longer be recognised in Vietnam and she could not resume her role as a teacher. No documentary evidence has been provided to the Tribunal to confirm that the applicant’s spouse would not have her degree recognised or why she would be unable to work as a teacher and in his oral evidence to the Tribunal the applicant stated that there was a misunderstanding and what was meant is that his wife would not have sufficient experience to return to work as a teacher but her qualifications would still be recognised. The Tribunal does not accept the applicant’s evidence that his wife’s qualification would not be recognised or that she cannot resume her employment as a teacher in the future.
The applicant’s evidence to the Tribunal suggests that there were other reasons why his wife left employment – such as the need to care for elderly relatives and a young child. The applicant also refers to the toxic and stressful work environment for his wife. The applicant states that because his wife had experienced so much pressure, he told her to stay at home and that he would support her. The applicant’s evidence indicates that the decision by the applicant’s wife to leave her employment was not in any way linked to the applicant’s visa issues.
The Tribunal is also mindful that neither the applicant’s wife nor the child have been granted the Australian visas and it would be premature for them to take irreversible steps (such as giving up employment) to sever the links in Vietnam, given that there can be no certainty about their migration to Australia.
The applicant states that he left Vietnam before he could complete his degree and it would be difficult for him to find a job in Vietnam and his income would be very limited and not sufficient to support the family, which would result in poverty. The Tribunal does not accept that evidence. While the applicant’s income in Vietnam might be lower than his income in Australia, that does not necessarily mean his income would be insufficient to support the family, noting that the living expenses in Vietnam may be different to what they are in Australia.
The applicant claims that he and his wife have experienced ‘significant mental and emotional distress’ due to their separation which caused severe anxiety, depression and feeling of helplessness. The applicant states that he feels guilt about not being able to support his son. He states that the psychological toll may negatively impact on his ability to fully contribute to the society in a productive way. The Tribunal has formed the view that these claims are a recent invention by the applicant. These are unsupported by any probative evidence. For example, there is no probative and contemporaneous evidence from health professional to indicate that the applicant (or his partner) have been diagnosed with anxiety or depression or that they have been treated for these conditions. Indeed, the applicant’s claim that his feeling of depression and anxiety prevent him from being able to contribute to the society in a productive way seem to contradict the applicant’s claims that he has been a contributing member of the Australian society and is the sole breadwinner for the family and supports his wife and child financially and otherwise. The Tribunal does not accept the applicant’s claims.
The applicant claims that he has no ‘reliable’ family support in Vietnam as his immediate family, including his mother and younger sister, reside in Australia. The applicant states that he would have limited resources to support himself and this would place financial and emotional strain on him. The Tribunal accepts that the applicant’s mother and sister live in Australia (although his wife and child live in Vietnam). The Tribunal is of the view that the applicant is an adult and is capable of living independently and not in the close physical proximity of his mother and sister. The Tribunal is also of the view that the applicant is able to maintain a meaningful relationship with his mother and sister by electronic means, and possible future visits, even if they do not reside in the same country. As for financial support, these claims have been addressed elsewhere. The applicant has not presented persuasive evidence that he would be unable to support himself and his family financially in Vietnam.
The applicant submits that family reunification in Australia is essential for the stability and well-being of the family and of him as an ‘active, responsible father and husband’ and refers to the emotional strain of the separation. As noted above, the applicant’s wife and child have not been granted Australian visas and it cannot be assumed that they would be granted such visas. The Tribunal also does not accept that the emotional strain of separation could only be removed by the family living together in Australia, as opposed to the family living together elsewhere.
The Tribunal has considered the totality of the applicants’ circumstances. The Tribunal has found that the applicant failed to inform the Department in writing, as soon as practicable, about changes in his circumstances and has not complied with s. 104. The Tribunal has determined that there are grounds for cancelling his visa.
The Tribunal has considered that many of the applicant’s claims have been exaggerated (such as his claim that about the best interests of his child could only be met in Australia or the claims about the hardship that the applicant would experience in finding employment in Vietnam). The Tribunal is also of the view that some of the applicant’s claims are untruthful, in particular his claim about the fear of future harm due to political expression, if he were to return to Vietnam. Nevertheless, the Tribunal accepts, given the length of the applicant’s residence in Australia and the degree of his settlement here, as well as the applicant’s extensive family, social, economic and other links to Australia, that he and his family may experience hardship if the visa was to be cancelled and if he was required to leave Australia as a result.
The Tribunal places significant weight on the fact that the applicant seems to have been entitled to the grant of the visa even if there was compliance with s. 104 of the Act as there was no ongoing dependence requirement at the time of visa grant. That is, the decision to grant the visa was not based on the incorrect information. The Tribunal has decided to give the greatest weight to that factor, as well as the hardship that would be caused to the applicant and his family by the cancellation of the visa. These factors weigh against the cancellation and, in the circumstances of this case, the Tribunal finds that they outweigh others that may weigh in favour of the cancellation.
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 not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.
Date(s) of hearing 3 March 2025
Representative for the Applicant: Ms Kim Uyen Pham