Huynh (Migration)

Huynh (Migration) [2024] AATA 2675 (2 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Minh Tri Huynh
Mrs Ha Bao Loan Nguyen
Master Sky Bao Minh Nguyen
REPRESENTATIVE:  Mr Andy Vuong Duc Pham
CASE NUMBER:  2401593
HOME AFFAIRS REFERENCE(S):          BCC2022/209946
MEMBER:Kira Raif
DATE:2 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 801 (Spouse) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 02 July 2024 at 8:51am
CATCHWORDS
MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – incorrect information – relationship with sponsor not to exclusion of all others, and new partner and child not declared – brief separation, sponsor’s child with another partner, return and marriage – new partner originally house sharer – conception of child after one-time sex – partner initially did not tell applicant about paternity – after she told him and he told wife, wife left relationship and applicant started relationship with partner – inconsistent and implausible claims and evidence – timing and circumstances of pregnancy and applicant’s likely knowledge of paternity – members of family unit partner and child – separate cancellation decisions and applications for review – no jurisdiction – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 101, 107, 109(1), 359A
Migration Regulations 1994 (Cth), r 2.41
CASE
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named 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 March 1990. He was granted the Spouse visa on 5 October 2020. In July 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate had formed the view that the applicant may not have complied with s 101 of the Act. The applicant provided several responses to the NOICC and his visa was cancelled on 30 January 2024. The applicant seeks review of the delegate’s decision.
For the purposes of the Tribunal’s jurisdiction in this case, there are separate decisions to cancel the visas held by the second and third named applicants and these are the subject of separate review proceedings. As they have made separate applications for review, which are valid applications and will be considered separately, the Tribunal finds that it has no jurisdiction with respect to these applicants.
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101 of the Act.
The applicant appeared before the Tribunal on 17 April 2024 and 26 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his partner Mrs Ha Bao Loan Nguyen (the second named applicant) and former partner Ms Thi Hue Le. The Tribunal hearings were conducted with the assistance of interpreters in the Vietnamese and English languages. The applicants were represented in relation to the review.
In his submission to the Tribunal of 2 May 2024 the applicant refers to procedural unfairness due to the waiting time in having to obtain a new interpreter and insufficient time allocated to the hearing. The Tribunal does not accept that submission as the Tribunal clearly indicated to all present that, in addition to the first hearing which lasted in excess of 3 hours, a further hearing would be arranged to enable the parties to present evidence and to discuss discretionary considerations. Over the course of the 2 hearings, which lasted for close to 6 hours, the Tribunal has had lengthy discussions with the applicant and his witnesses. The Tribunal does not accept that the parties had been given insufficient time to present evidence and arguments in the course of the 2 hearings.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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.
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.
Primary decision
The applicant provided to the Tribunal a copy of the primary Decision Record. It indicates that he made the application for the Partner visa on 23 May 2016 on the basis of his relationship with Ms Le. In his application the applicant stated that he met Ms Le in February 2011, they committed to the relationship in April 2011 and married in Australia in April 2014. The applicant claimed that their relationship was genuine and continuing and that they had not lived separately and apart since committing to a shared life together other than for a brief period in 2012. The applicant claimed that a child was born in June 2013 and they both looked after the child since her birth. The child’s birth certificate did not list the child’s father.
The applicant gave in his visa application a number of addresses where he lived with Ms Le from October 2009 to January 2015. He stated when making the application that he presently lived at 27B/***** Fairfield Street.
The applicant was granted the provisional Partner visa on 12 April 2018. In June 2018 the applicant submitted additional evidence in support of his application for the permanent visa. The applicant gave his addresses (stating that he lived at 27A/***** Fairfield Street) and stated that he continued to be in a genuine and continuing relationship with the sponsor, that they had a mutual commitment to a shared life as a married couple to the exclusion of all others.
The primary Decision Record indicates that the applicant was interviewed by the Immigration officer on 2 October 2020. In that interview, he stated that he and his partner lived at 27A/****** Fairfield Street together with his mother-in-law. The applicant was granted the permanent Partner visa on 5 October 2020.
The primary Decision Record indicates that in May 2021 the applicant sponsored another person, Mrs Nguyen, for a Partner visa. Mrs Nguyen stated in her application that:
-    She and the applicant met in December 2009 and she later saw an ad for a room rental at 27B/**** Fairfield Street and she became a housemate of the applicant and his wife.
-     Mrs Nguyen gave her residential addresses as 27B / **** Fairfield Street from January 2014 to December 2017 and 27A / **** Fairfield Street from December 2017 to May 2021.
-     She and the applicant have a child together, Sky (the third named applicant), born in October 2017 as they had unplanned and unprotected sex. (The Departmental file contains the results of DNA testing confirming the applicant’s paternity of Sky).
-     Initially, she did not tell the applicant about her pregnancy as she did not want him to feel liable and she did not tell his wife.
-     In late 2020 she told the applicant about the ‘incident’ and after some time he told his wife, who left the family home with her mother on 1 February 2021.
-     The applicant’s relationship with the sponsor ended in February 2021 and she and the applicant formed a committed relationship on 1 February 2021.
-     The applicant purchased a property in February 2020 but had never lived there with his wife as it was unrenovated. Mrs Nguyen moved in to live with the applicant in that house and contributes to the payment of the mortgage.
-     In her application Mrs Nguyen stated that she lived at 27B/***** Fairfield Street between January 2014 and December 2018 and at 27A/***** Fairfield Street from December 2018 to May 2021.
The primary Decision Record indicates that the applicant had also provided a statutory declaration in support of Mrs Nguyen’s visa application. He stated that his former wife left the marriage on 1 February 2021 after learning that he had unplanned and unprotected sexual activity with his current partner in late 2016. The applicant stated that Mrs Nguyen did not tell him about the status of the unborn child and the identity of the father until late 2020 and once he found out, he immediately spoke to the sponsor. After a few weeks, his wife decided to end the relationship. The applicant stated that his current wife has been supporting him and they now live together in the property he purchased before.
The primary Decision Record notes the following evidence.
Ms Nguyen’s pregnancy
Ms Nguyen’s mother lodged an application for a visa in 2018. In support of that application she provided a letter from an obstetrician stating that Ms Nguyen had been pregnant during September 2016, had a miscarriage, and again became pregnant in late December 2016 with the expected date of delivery in October 2017.
When the applicant made the application for the Partner visa in May 2016, he provided bank records and receipts from Chemist Warehouse for vitamins and supplements to assist with conception; ovulation test kits, pregnancy tests, pregnancy multivitamins, morning sickness medication, etc. These purchases were made between July 2016 and May 2017.
It is noted that the applicant provided a declaration in support of his visa application in June 2018 and the sponsor provided declarations in June 2018 and August 2020 and neither of them claimed they were trying to conceive a child together in 2016 or 2017. However, the delegate noted that the timing of the above purchases is consistent with Ms Nguyen’s 2 pregnancies in September 2016 and December 2016. The delegate noted that this contradicted the applicant’s claim that he was unaware of Ms Nguyen’s pregnancy and instead suggested that he was financially supporting Ms Nguyen in her pregnancy.
The delegate formed the view that the applicant was involved in both of Ms Nguyen’s pregnancies and that they intended to conceive the child together and took active steps to do so, purchasing vitamins and supplements since June 2016.
The applicant’s knowledge about his paternity
The delegate notes that in her visa application made in May 2021, Ms Nguyen claimed that she only told the applicant about his paternity of the child in late 2020. In his own declaration made in September 2022 the applicant also claimed that prior to that time, he did not know the child was his. The delegate noted, however, that the applicant never suggested that he was not aware he had unprotected sex with Ms Nguyen and he continued to reside in close proximity with her throughout the pregnancy and after the birth of the child. The delegate noted that it would have been obvious to the applicant that there was at least a possibility that the child was his, as he was aware of having intercourse with Ms Nguyen and her subsequent pregnancy. The delegate also notes that if the applicant genuinely did not believe the child to be his, he would not have accepted his paternity in late 2020 without questioning it or a DNA test.
The delegate also noted that in Ms Nguyen’s application form, she claimed that after she told the applicant about his paternity, it took him ‘some weeks’ before disclosing it to his wife while in his own declaration of 3 September 2022 the applicant claimed that he had ‘immediately’ spoken to the sponsor.
The applicant’s support for the child after birth
The delegate notes in the primary Decision Record that the applicant included with his Partner application receipts from Chemist Warehouse for baby products. These are dated from October 2017 and include baby formula, Sudocrem, soothers, baby wipes, baby food, etc. The delegate notes that the applicant had provided similar receipts through to June 2020, which might suggest that the applicant knew that Sky was his child and provided financial support to the child since his birth.
Ms Nguyen’s mother residing with the applicant on 6 occasions between 2017 and 2020
The primary Decision Record indicates that Ms Nguyen’s mother first visited Australia in September 2016 stating in the application for the Visitor visa that her purpose in coming to Australia was to visit her pregnant daughter. Both Ms Nguyen’s mother and Ms Nguyen, who provided a letter of support, stated their address as 27B / ****** Fairfield Road. Ms Nguyen’s mother made several subsequent trips to Australia between March 2017 and November 2020. In the 2016 and 2017 applications Ms Nguyen’s mother gave her daughter’s residential address as 27B / ***** Fairfield Road and in the 4 applications made between April 2018 and May 2020 she gave her daughter’s residential address as 27A / ***** Fairfield Road. In all her Incoming Passenger Cards Ms Nguyen’s mother gave the same address as Ms Nguyen and the delegate concluded that in all her visits, Ms Nguyen’s mother lived with Ms Nguyen and the applicant.
The couple’s residential arrangements
The delegate states that the applicant presented evidence of a residential agreement, signed on 7 August 2020, for the address at 27A / ***** Fairfield Street. The agreement identified the applicant and Ms Le as tenants and was electronically signed by them. It is stated that the applicant gave 2 email addresses in relation to the property lease and the delegate notes that one of these addresses was used by Ms Nguyen in her visa application made in February 2018.
The delegate has formed the view that this did not support the applicant’s claims that he and Ms Le decided to lease the property at 27A/**** Fairfield Street in August 2020 and Ms Nguyen rented a room from them. The delegate notes that the evidence suggested that Ms Nguyen was directly receiving correspondence about the lease agreement and that the applicant and Ms Nguyen were jointly responsible for the lease. The delegate has formed the view that Ms Le’s name was only listed on the lease as evidence in support of the relationship claim and as evidence in support of the visa application.
The delegate also refers to Ms Nguyen’s study in Australia. According to PRISMS, she completed a course at Universal Business School Melbourne. The primary Decision Record indicates that the Department sought advice from that education provider about Ms Nguyen’s contact details and the education provider advised that on 12 December 2020 Ms Nguyen gave her address at Kirrang Ave. That contradicts the applicant’s claim that he and Ms Nguyen did not live at that address until at least February 2021.
The delegate notes that in his Partner application, the applicant presented a declaration from Ms Le in which she claims that she and the applicant saved money to purchase the property but when sponsoring Ms Nguyen, the applicant did not provide any evidence of having paid to Ms Le her part of the contribution of the purchase price. The delegate was not satisfied that Ms Le had contributed to the purchase price of the property or that the applicant bought the property to use as a marital home with Ms Le. It is noted that Ms Le had never resided in that home.
The delegate found that there was non-compliance with s 101 of the Act in the following way:
·When the applicant stated on the application form submitted in June 2018 that he did not have family members residing in Australia. At the time his child Sky, born in October 2017, was residing in Australia and the applicant thus did have family members residing in Australia.
·When the applicant stated on the application form submitted in June 2018 that he and the sponsor had a mutual commitment to a shared life to the exclusion of all others. The delegate concluded that this answer was incorrect because the applicant had commenced a relationship with Ms Nguyen since at least 2016, supported her in her pregnancy, provided financial and other support to their child and provided accommodation to Ms Nguyen and her mother. The delegate concluded that since June 2016 the applicant ceased to be in a committed and exclusive relationship with Ms Le.
·In his phone interview in October 2020 when the applicant stated that he lived at 27A / ***** Fairfield Street with Ms Le and her mother. The delegate concluded this was incorrect because Ms Nguyen had been living with the applicant since January 2014 and at the time of the interview. His son Sky was also living with the applicant and Ms Nguyen’s mother was also living with the applicant and Ms Nguyen at the time of the interview.
The applicant’s response to the NOICC and evidence to the Tribunal
The applicant provided a number of submissions and supporting documents in response to the NOICC. The applicant claims, essentially, that all the information he provided in support of his Partner visa application was correct and he claims that the ground for cancellation does not exist.
The applicant claims that when he was interviewed, his English was not very good and he thought the question was about the family members he was living with. He subsequently provided to the Tribunal his old IELTS results. The Tribunal acknowledges that evidence but is of the view that the delegate would have taken the applicant’s ability to communicate in English into account when conducting the interview. The Tribunal also notes that, aside from the applicant’s answers at the interview, other instances of non-compliance identified in the NOICC related to the written provision of information, not the applicant’s answers at the interview.
The applicant presented a declaration from his former landlord, Mr Pham, who states that sometime after January 2014 his sister’s property was leased to the applicant, the sponsor, another person and the sponsor’s daughter and the landlord describes the genuine relationship between the applicant and the sponsor. Mr Pham explains that the applicant and his family subsequently moved to the Fairfield address. Mr Pham states that he had asked the applicant to purchase multivitamins for his wife and he states that around July 2016 the applicant and sponsor began to send pregnancy-support vitamins for him and they continued to buy such items after Mr Pham’s wife and child migrated to Australia. Mr Pham presented a number of supporting documents with his declaration.
The applicant also presented a declaration from Ms Nguyen, the partner of Mr Pham. She also confirms the use of pre-conception support and vitamins, baby formula and other baby products.
The applicant presented a declaration from the sponsor, Ms Le, who confirms she was living with the applicant since the lodgement of the visa application until 1 February 2021. She states that it was her own decision to depart the matrimonial home. The sponsor refers to the care of her mother which she and the sponsor provided together. She states that she was unable to work and describes the financial arrangements during marriage. Ms Le refers to the difficulties in the relationship, stating that she was briefly involved in another relationship without letting the applicant know, and became pregnant. She states that the applicant forgave her for what had happened. The sponsor refers to the purchase of property at Villawood, stating that she and the applicant saved 20% for the deposit, which was principally from their personal savings but her name could not be added to the mortgage as she was receiving Centrelink benefits. The sponsor states that after the marriage breakdown, given the cost of any court litigation and that her family contributed little, she decided it would be best for the applicant to take over the property.

The applicant presented a number of declarations from others, confirming a genuine relationship between the applicant and sponsor and the financial arrangements relating to the purchase of property at Villawood.
The applicant provided his own declaration sworn on 3 September 2022. The applicant refers to the ‘ups and downs’ in his relationship with the sponsor, stating that it ended on 1 February 2021 after Ms Le learned he had unplanned and unprotected sex with his current partner. The applicant claims that Ms Nguyen did not disclose to him the status of the unborn child or the identity of the father until late 2020 and when he found out, he immediately spoke to the sponsor. The applicant claims the sponsor kept quiet ‘for at least a few weeks’ before telling him she could not bear it.
The applicant describes the various aspects of his relationship with his partner.
In oral evidence the applicant spoke about his relationship with Ms Le stating that they met in 2011 and fell in love. The applicant states that together they looked after Ms Le’s mother and he helped with the housework and they shared their responsibilities. They were facing financial difficulties at the time and there were other stressors but they were happy together. The applicant stated that because his ex-wife was stressed, she moved out for a period in 2012. The applicant told the Tribunal that he could not recall how long that separation lasted but stated that it was a lengthy period, up to a year. Ms Le gave birth in June 2013 and told him straight away the child was not his. The applicant states that his relationship with the sponsor ended when he told her he had a child with another person.
The applicant told the Tribunal that he found out that Sky is his child when the child was 4 or 5 years old. He states that he and Ms Nguyen had intercourse once and both were embarrassed about it and he ‘did not think’ the child could be his because he believed Ms Nguyen still had a boyfriend. There is very little evidence before the Tribunal – and no supporting evidence to support the claims – concerning the existence of that boyfriend.
The applicant states that he and the sponsor were trying to get pregnant. He claims that he purchased the pregnancy vitamins for a friend, Mr Pham, because he felt he owed it to Mr Pham, who helped him a lot, and not for Ms Nguyen. The Tribunal acknowledges that this may have been the case and on its own, the purchase of pregnancy vitamins is not evidence that the applicant knew about his paternity of Sky. However, when considered in conjunction with other concerns noted elsewhere, in the Tribunal’s view, the purchase of pregnancy items may suggest the applicant’s awareness of his paternity far earlier than he claims.
The applicant told the Tribunal that Ms Nguyen had been living with him and the sponsor since 2014 and that is why her address appears on various documents prior to 2020. He states that her name was added to the lease agreement in 2020 because he and the sponsor did not have enough funds to cover the rent and they relied on Ms Nguyen’s contribution. The applicant states that Ms Nguyen used the Villawood address with her course provider in 2020 because her Fairfield address was not recognised, so they allowed her to use the Villawood address for any communication with the school. The applicant states that the property was in such a poor state that it was unusable.
Ms Nguyen told the Tribunal that she had been living with the couple since 2014. She states that she told the applicant that he is the father of Sky at the end of 2020 by accident as she was drunk and the following day the applicant questioned her. She said that the applicant told Ms Le about the situation a few weeks later and Ms Le was very upset as she was a close friend of Ms Le. Ms Nguyen stated that after hearing about Sky, Ms Le did not remain at home but she was going ‘in and out’ and she moved out officially in February 2021.
Ms Le also spoke about her genuine relationship with the applicant and the support he has given to her family. She states that she was upset when she learned about Sky but she felt she could not give a child to the applicant and he deserved better, so she has forgiven him.
Was there non-compliance as described in the s 107 notice?
In assessing whether there was non-compliance with s 101 the Tribunal has considered the nature of the applicant’s relationship with Ms Nguyen and Ms Le. The Tribunal gives significant weight to the following factors:
a.Both the applicant and Ms Le had children born outside of their claimed relationship. While the applicant refers to the ‘ups and downs’ of the relationship, the fact that both partners either sought other relationships or had children outside of marriage strongly suggests that their relationship was not to the exclusion of all others.
b.The Tribunal considers the timing of the breakup of the applicant’s relationship with Ms Le problematic, noting that the applicant claims his relationship with the sponsor ended very shortly after he was granted the permanent visa. The applicant claims that was the time he learned about his paternity of Sky and disclosed it to the sponsor. In the Tribunal’s view, it is equally plausible, and more likely, that the relationship ended at that time not because the sponsor learned that the applicant had a child with another person (particularly in circumstances where she herself had a child with another person while claiming to be in a relationship with the applicant and told the Tribunal she has forgiven him) but because the applicant had been granted the permanent visa and the couple decided there was no longer any utility in maintaining the relationship.
c.The Tribunal places significant weight on its determination that the applicant, Ms Le and Ms Nguyen are not persons of credibility. The Tribunal notes the following concerns with their evidence (which were the subject of Tribunal’s correspondence under s 359A of the Act):
i.The applicant told the Tribunal that in 2012 Ms Le moved out for up to a year and about a week after she gave birth, they spoke and she told him the child was not his and they resumed living together. The applicant reiterated that he and Ms Le resumed living together after he learned about the birth of her child. However, in his Partner visa application the applicant provided an entirely different account of these events. In the application form the applicant stated that there was a brief period of separation (there is a suggestion that the separation occurred over a number of weeks rather than a year as he is claiming now). Further, the applicant stated in his Partner visa application that they resumed cohabitation once he realised Ms Le was pregnant while in his oral evidence the applicant stated that he did not know about Ms Le’s pregnancy and only learned about the pregnancy and the child after the child was born.
Ms Le also told the Tribunal that they had ‘ups and downs’ in the relationship and they separated ‘for a few weeks’. She stated that after she and the applicant recommenced living together and while they were living together, she realised she was pregnant. Ms Le expressly confirmed that she realised she was pregnant after she had returned to live with the applicant. This contradicts the evidence of the applicant about these circumstances as he told the Tribunal he and Ms Le resumed cohabitation after her child was born.
ii.In his declaration of 3 September 2022 the applicant stated that he told Ms Le ‘immediately’ about Sky being his child. His evidence to the Tribunal is that he thought about it for 2-3 weeks before telling the sponsor about his child. When questioned about this discrepancy, the applicant denied that he told Ms Le about his parentage ‘immediately’, contradicting his written evidence in the September 2022 declaration.
In her declaration of 4 September 2022 Ms Nguyen also stated that after she told the applicant about Sky, it took him ‘some weeks’ to speak to the sponsor. This contradicts the applicant’s written evidence that he told the sponsor ‘immediately’ about the child.
Further, the applicant told the Tribunal that once he told the sponsor about the child, she left the family home straight away and after a few weeks and consultations with her family, she took her belongings, ending the relationship. However, in his declaration of 3 September 2022 the applicant claimed that after Ms Le found out about Sky, she kept quiet for a few weeks (suggesting there was no breakup in the relationship yet) before she told him she could not continue their relationship. In the Tribunal’s view, there is a big difference between the sponsor being quiet for a few weeks before telling the applicant she did not want to continue the relationship and her moving out from the family home straight away.
Notably, Ms Nguyen in her oral evidence to the Tribunal stated that after the applicant told Ms Le about Sky, Ms Le was ‘in and out’ of home and officially moved out in February 2021. This is consistent with the applicant’s oral evidence but not with the information in his declaration of 3 September 2022. Ms Nguyen later said that she was not at home a lot so she could not state if Ms Le was there.
d.The applicant told the Tribunal that he and Ms Le were trying to have a baby throughout their marriage. As the delegate notes in the primary Decision Record, this was never mentioned in the applicant’s Partner visa application and when questioned about purchases for pregnancy products, the applicant’s evidence is that he was buying these for a friend, rather than Ms Le. The applicant told the Tribunal that he did not realise he had to mention it in his Partner visa application as he thought it was obvious but the Tribunal notes that information about intended pregnancy would have been highly relevant in support of the visa application. The Tribunal also notes that the applicant had been assisted by an experienced migration agent when applying for the Partner visa and in the Tribunal’s view, if the applicant’s present evidence was true, he would have recognised its relevance and he would have mentioned the couple’s attempts to have a baby in the Partner visa application.
The Tribunal is mindful that both the applicant and Ms Le had children from other relationships and the applicant claims the birth of Sky was the result of a ‘one night’ drunken intercourse with Ms Nguyen. Ms Le also did not suggest that her daughter was born as a result of a lengthy relationship. The Tribunal considers it implausible that while both the applicant and Ms Le were able to conceive children, apparently without much difficulty, in other relationships, they were unable to conceive a child throughout more than 7 years of their own marriage.
In the Tribunal’s view, the applicant’s claim that he and Ms Le were trying to get pregnant during their claimed marriage is a recent invention.
Significantly, the applicant told the Tribunal that they did not see a health professional and did not try to ascertain why Ms Le could not fall pregnant during their marriage. However, Ms Le told the Tribunal that she did consult her GP about fertility and that the applicant accompanied her to some of these appointments (and, if true, he would have been aware of these). This inconsistently supports the Tribunal’s view that the applicant and Ms Le have not been truthful in their evidence that they were trying to conceive during the relationship and that the applicant had fabricated evidence in that respect.
e.The Tribunal is not satisfied with the couple’s explanation about the circumstances of Sky’s conception. The applicant claims his intercourse with Ms Nguyen took place around Christmas 2016 as both were engaged in many social activities and were drunk on the day. In her Partner application Ms Nguyen also stated that the intercourse took place around Christmas 2016 and in her declaration of 4 September 2022 Ms Nguyen expressly refers to the conception taking place at a Christmas party in 2016. Ms Nguyen told the Tribunal that the child was born at 39 weeks. As the child was born on 8 October 2017, the conception is more likely to have taken place in mid- January 2017, rather than at a Christmas party in 2016. In his submission to the Tribunal in May 2024 the applicant provided an ultrasound report which indicates that the pregnancy was 19.5 weeks as at 29 May 2017. That also suggests that the conception took place in mid-January 2017 rather than Christmas 2016.
When questioned about this, the applicant told the Tribunal that the conception could have been around Christmas or the New Year party or even the Lunar New Year celebration as it is in the Vietnamese culture to have prolonged celebrations. That explanation contradicts express evidence provided earlier that the conception took place at a Christmas party in 2016. The Tribunal has formed the view that the applicant had fabricated evidence to explain his interactions with Ms Nguyen as a ‘one night drunken stand’.
The applicant told the Tribunal that there may have been a misunderstanding when his lawyer prepared his written declaration and he could not check it due to his limited English. The Tribunal does not accept that explanation. Firstly, the applicant is able to communicate with his lawyer in his own language and there should not be any misunderstandings in their communications. Secondly, the written explanation provided by the applicant previously is quite different to his evidence to the Tribunal and the Tribunal does not accept that such differences are due to any misunderstanding. Thirdly, the Tribunal is also mindful that the applicant has had ample time to check the content of his declaration, particularly as the delegate relied on these inconsistencies in determining that the grounds for cancellation existed and the applicant continues to be represented by the same representative who prepared the earlier statements. In the Tribunal’s view, if the discrepancies were genuinely due to any misunderstanding, the applicant had the chance to correct these. His failure to do so suggests that much of the applicant’s evidence has been fabricated, leading to the inconsistencies.
In his declaration sworn on 2 May 2024 the applicant also refers to the passage of time, stating that he could not recall the precise dates and it is not correct to state that he and the sponsor were not able to answer questions. The applicant states that it is not possible to recall exact events and dates after such a significant period of time had passed. The Tribunal does not accept that explanation. Significantly, the Tribunal did not request the applicant and his witnesses, nor expected them, to recall specific or exact dates. However, the Tribunal does not consider it unreasonable, for example, that even after the passage of many years, the applicant and the sponsor would be expected to recall whether they reconciled during the sponsor’s pregnancy or only after her daughter was born. Similarly, the circumstances of the relationship breakdown would be significant to the applicant and sponsor (provided they did have a genuine relationship). They claim the relationship ended in early 2021, about 3 years ago, which is not a particularly long period that should have affected the parties’ recollection of the events. The applicant submits that he did not seek to evade answering questions and answered the questions to the best of his ability and recollection. The Tribunal does not consider that this was so.
The applicant refers to his poor health, high blood pressure and his wife’s recent miscarriage, stating that these matters had had a ‘severe impact’ on his health status and recollection of events and dates. While the Tribunal acknowledges the medical evidence, none of it establishes that these matters have affected the working memory or recollection of the applicant and his partner and former partner. The Tribunal does not accept the applicant’s explanation for the inconsistencies.
The Tribunal has formed the view that the applicant, Ms Nguyen and Ms Le are not credible witnesses and that they had presented untruthful evidence to explain the issues that are set out in the NOICC. The Tribunal is of the view that the applicant’s relationship with Ms Nguyen started well before February 2021 and before the applicant was granted the permanent Partner visa. The Tribunal considers it more likely than not that the applicant was aware that Sky was his child before late 2020.
The Tribunal acknowledges a number of declarations from third parties attesting to the applicant’s relationship with Ms Le. The Tribunal also acknowledges that evidence of the relationship between the applicant and Ms Le was provided in support of his visa application. However, the Tribunal’s concerns noted above have not been overcome by the evidence in the above statements. Essentially, the Tribunal is of the view that if the applicant had fabricated evidence in support of his Partner visa application or to assist with the cancellation process, he could have encouraged others to do the same.
The Tribunal notes other concerns raised in the primary decision. The delegate noted evidence that Ms Nguyen gave the applicant’s address prior to 2020 and that her mother also lived with them at the same address. The delegate also noted that Ms Nguyen used the Villawood address in relation to her Student visa prior to February 2021. The parties’ evidence is that Ms Nguyen lived in the same household since 2014 (hence the same address was used for various communications) and that she used the Villawood address for online learning as her Fairfield address was not recognised on the system. The Tribunal accepts that if Ms Nguyen was living in the same household prior to 2014, she would have given her Fairfield address when dealing with various authorities. The Tribunal accepts that it is possible she gave the Villawood address for the stated purpose and that she did not live there at the time.
The delegate noted Ms Nguyen’s earlier pregnancy which ended in miscarriage, concluding that the applicant was the father. Given the Tribunal’s view that the applicant and Ms Nguyen have not been truthful in their evidence, the Tribunal considers it possible that the applicant was the father of that unborn child but there is insufficient evidence to make a positive finding in relation to that. As for the applicant’s purchase of pregnancy items and the applicant’s explanation is that these were purchased for a friend, again, the Tribunal considers it possible and, indeed, likely that the applicant did buy these for Ms Nguyen but the Tribunal cannot make a positive finding on the issue.
The Tribunal has formed the view that the applicant, Ms Nguyen and Ms Le are not credible witnesses. The Tribunal notes significant inconsistencies in their evidence, as noted above, and deficiencies that have not been explained to the satisfaction of the Tribunal.
The Tribunal finds that the applicant’s child, Sky, was born in October 2017. As a minor child, he was a family member living in Australia. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given or provided when the applicant claimed in the form submitted in June 2018 that he had no family members living in Australia.
The applicant’s evidence is that he was unaware of his paternity of Sky until late 2020. Given the concerns set out above, the Tribunal is of the view that the applicant’s evidence and the evidence of others on that issue is not truthful. In any case, for the purpose of establishing the breach, s 100 of the Act provides that 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. The Tribunal finds that this information constitutes an incorrect answer for the purpose of s 101.

The Tribunal finds that the applicant gave an incorrect answer in his interview in October 2020 when he claimed he lived with his sponsor and her mother. Section 99 of the Act provides that information that is given orally is taken to be an answer given on the application form. In his interview the applicant failed to mention that Ms Nguyen and their child Sky were living at the same address. The applicant told the Tribunal that the interview was conducted without an interpreter and that he understood the question to relate to family members. The Tribunal is of the view that the Immigration officer conducting the interview would have assessed the applicant’s English proficiency in understanding and responding to questions and would have determined that the applicant had sufficient English to engage in the interview. The applicant’s claim is not that he did not understand the question (which might be explained by lack of English) but that he had misunderstood the question to relate to family members. The primary decision indicates that the question related to all who lived in the same premises and the applicant’s answer was incorrect. The Tribunal finds that this information constitutes an incorrect answer for the purpose of s 101.
Finally, and most significantly, the Tribunal has formed the view that the applicant’s evidence concerning the circumstances of his relationships with Ms Le and Ms Nguyen has not been truthful. The concerns noted above, the fact that the applicant and Ms Nguyen had been living in the same household for several years, had a child in 2017 and, in the Tribunal’s view, provided untruthful evidence about the circumstances of the child’s conception, the break-up of the applicant’s relationship with the sponsor shortly after visa grant and the immediate commencement of the applicant’s relationship with Ms Nguyen all strongly suggest to the Tribunal that the applicant’s relationship with Ms Le was not to the exclusion of all others. The Tribunal has formed the view that the applicant’s answer was incorrect when he claimed to be in a relationship with Ms Le that was to the exclusion of all others. (The Tribunal notes that even if the last basis was not established, the earlier 2 points establish a breach of s 101).
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?
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 Migration Regulations 1994 (Cth) (the Regulations). They are as follows.
The correct information
The correct information is that the applicant had a child who was a member of his family unit and who was living in Australia in the same household as the applicant. The applicant was also living in the same household with Ms Nguyen when interviewed.
The Tribunal has also formed the view that the applicant’s relationship with the sponsor was not to the exclusion of all others because he had a relationship with another person.
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 Tribunal has formed the view, for the reasons set out above, that the applicant’s relationship with Ms Le was not to the exclusion of all others. Information about Ms Nguyen’s presence in the same household since 2014 and the birth of Sky in 2017 and Sky’s presence in the same household are all factors that were relevant to determining whether the applicant’s relationship with Ms Le was genuine and to the exclusion of all others. The applicant told the Tribunal that Ms Nguyen was merely renting a room in his house due to his economic situation but the Tribunal does not consider this to be an accurate description of what had occurred, for the reasons set out above.
The Tribunal finds that the decision to grant the visa was based, in part but to a very considerable degree, on incorrect information.
The Tribunal considers it significant to the overall exercise of discretion that there is a real likelihood that if the delegate was aware of the circumstances of the applicant’s interactions with Ms Nguyen and of the birth of Sky, this may have affected the outcome of the Partner visa application.
The circumstances in which the non-compliance occurred
These are addressed above. The applicant claims, essentially, that his relationship with Ms Nguyen did not start before February 2021 after his relationship with Ms Le ended. The applicant claims that he was unaware of his paternity of Sky before the end of 2020 and that he had misunderstood the question about his family composition and residential arrangements when interviewed.
The Tribunal does not accept the applicant’s explanations. The Tribunal has formed the view, for the reasons set out above, that the applicant had not been truthful in his explanations and that he had fabricated some of the evidence to support his claims. The Tribunal has formed the view that the applicant’s relationship with Ms Nguyen started well before February 2021. The Tribunal finds that the provision of incorrect answers was deliberate to ensure the applicant’s relationship with Ms Nguyen did not become known to the delegate and to ensure the applicant could be granted the Partner visa.
The present circumstances of the visa holder
The applicant provided to the Tribunal a copy of the discharge summary for Ms Nguyen which relates to a recent miscarriage. He told the Tribunal that the miscarriage was caused by the cancellation of the visa. There is no evidence whatsoever to link the visa process and Ms Nguyen’s miscarriage.
The applicant told the Tribunal that he continues to care for Ms Le’s child and her mother, as well as his own family, including Sky. His partner Ms Nguyen also spoke about the applicant’s relationship with his former mother-in-law, stating that he considers her as his own mother and wants to support her during her illness. The applicant told the Tribunal that his relationship with Ms Le lasted for over 10 years and he cannot forget that and he sees her daughter every week, whenever he has time. The applicant also told the Tribunal that he sees Ms Le’s mother quite often and sees her as his own mother. The Tribunal is prepared to accept that the applicant has maintained his relationship with Ms Le and her family.
The applicant provided evidence of property ownership in Australia. He told the Tribunal that he owns a property in Villawood and, with his partner, they own 2 more properties. The applicant states that he needs to work to pay for these properties and the family’s living expenses.
The applicant states that he works in the NDIS disability support sector and supports people with disabilities. He told the Tribunal that as soon as he was given permission to work, he started working and has been paying taxes each year and he continues to work since the cancellation of his visa. The applicant states that he has been under stress since his visa was cancelled and had to spend large sums to reinstate his visa.
The Tribunal accepts that the applicant has strong economic, employment, social and other links in Australia.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
In his various submissions in response to the NOICC and to the Tribunal the applicant provided information which the Tribunal has determined (for the reasons set out above) to be untrue. It is significant, in the Tribunal’s view, that the applicant continued to provide incorrect answers, and act in breach of his obligations under the Act, in his responses.
Any other instances of non-compliance by the visa holder known to the Minister
There are no other known instances of non-compliance.
The time that has elapsed since the non-compliance
The primary Decision Record indicates that the applicant had submitted evidence in support of his Partner application in June 2018 when he claimed to be in an exclusive spouse relationship with the sponsor. He was interviewed by the Immigration officer in October 2020 when he provided incorrect answers about his living arrangements. The Tribunal finds that about 6 years passed since the first instance of non-compliance and about 4.5 years since the second non-compliance. These are not insignificant periods of time.
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 refers to his employment in the disability sector and his support for his family. He told the Tribunal that he works for an NDIS support provider in the disability sector and contributes through such employment. The applicant refers to the payment of taxes. The applicant also refers to raising his child to be a good person and a contributor to Australia. The Tribunal accepts that the applicant has made a contribution to Australia through his employment.
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.
The visas held by Ms Nguyen and their son Sky had been cancelled.
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 told the Tribunal that he maintains a relationship with Ms Le’s daughter and sees her regularly. There is little evidence before the Tribunal to support the applicant’s claim about his interactions with that child or any role he plays in relation to that child. For example, there are no statements from those around the child (parents, educators, health professionals, etc) who have recognised the applicant’s relationship with that child or who have expressed the view that the cancellation of the applicant’s visa would have any effect on Ms Le’s daughter. The Tribunal does not accept that if the applicant’s visa is cancelled, it would in any way affect the best interests of that child.
The applicant told the Tribunal that his son was born in Australia, does not speak Vietnamese and eats Australian food. He attends an Australian school where he has friends. If his visa is cancelled and if the child is to travel to Vietnam, there will be no food he is used to. The applicant submits that if the child was to travel to Vietnam, it would affect his emotions and other aspects of his life. The applicant submits that the child is innocent and should not be punished. Ms Nguyen also told the Tribunal that the child was born in Australia, is familiar with the Australian life, food and education in Australia and if he has to return to Vietnam, it may impact on his emotional and physical aspects. Ms Nguyen states that formative years are important for the child’s development. She states that they cannot afford to maintain an English speaking environment for the child in Vietnam.
The Tribunal notes, firstly, that the cancellation of the applicant’s visa does not equate to the cancellation of Sky’s visa as there is a separate process in relation to the cancellation of the child’s visa and his application is presently before the Tribunal. Secondly, the Tribunal is mindful that it is not uncommon for parents, and their young children, to migrate to different countries where children face different lifestyles, foods, education, etc. It is not uncommon – and not necessarily considered by parents to be adverse to their children – when children experience different environments.
However, the Tribunal accepts that if the applicant is required to leave Australia as a result of his visa being cancelled, his son will either travel with him to Vietnam or remain in Australia and thus be separated from his father. The Tribunal does not consider this to be in the child’s best interests.
The applicant states that if he is returned to Vietnam, his child might think his father is a criminal. The Tribunal considers that submission far-fetched, given that people may be (and often are) asked to leave Australia due to immigration requirements and not necessarily due to criminal issues. The applicant states that his child will be brought up by a single mother and his school friends might ask him about the father or the child might think he was born to a ‘lustful’ mother. The Tribunal considers many of these submissions far-fetched.
The applicant also refers to the financial hardship that his son would experience if the visa is cancelled. The Tribunal accepts that the applicant provides financial support to his son.
Overall, the Tribunal is prepared to accept that it is in the best interests of the child to remain with his father and that the applicant’s visa is not cancelled. This is a primary consideration.
Whether the cancellation would lead to the person’s removal in breach of Australia's non-refoulement or family unity obligations.
The applicant states that he worked for the government in Vietnam and there were some issues relating to his Student visa. The applicant states that it would be hard for him to re-integrate in Vietnam. The Tribunal is of the view that these matters do not give rise to Australia’s protection obligations. The Tribunal does not consider that the cancellation of the visa would lead to the applicant’s removal in breach of Australia’s non-refoulment obligations.
As for the principles of family unity, the Tribunal notes that at present, the visas held by the applicant’s spouse and child have also been cancelled. The family may choose to travel to Vietnam together or, if the applicant’s partner and child remain in Australia, the applicant may have future options of returning to this country. The Tribunal does not consider that the family unity obligations would be breached.
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 be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. Unless the applicant is granted another visa, he may be subject to possible removal from Australia and he would be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the type of applications that can be made onshore would be limited by the operation of s 48. The applicant would also be subject to an exclusion period in Schedule 4 to the Regulations. If the applicant’s visa is cancelled he will also lose the entitlements that he would have acquired as a permanent resident of Australia, including the right to sponsor others, and he will not be able to acquire Australian citizenship.
Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)
The applicant repeatedly told the Tribunal that his visa was based on suspicion which was unreasonable and that he feels insulted and disrespected. The Tribunal acknowledges how the applicant feels about the process and its outcome but the Tribunal also considers that it is important for the process to take place on the basis of the statutory requirements and not the applicant’s feelings.
The applicant states that his wife had suffered a miscarriage as a result of the cancellation of the visa and he presented to the Tribunal evidence of a recent miscarriage. The applicant presented no evidence of any link between the miscarriage and the cancellation of the visa and the Tribunal finds that claim to be far-fetched.
The applicant refers to his financial obligations to his family and in maintaining his properties in Australia. The Tribunal accepts that if the applicant is required to leave Australia as a result of his visa being cancelled, that may have adverse economic consequences for the applicant and his family and the Tribunal accepts that financial hardship may be caused by the cancellation.
The applicant claims that he used to work for the government in Vietnam but has not worked in his occupation for many years; he would have to do a course and, given his age, it would be difficult for him to reintegrate. The Tribunal is prepared to accept that it may take time for the applicant to reintegrate into Vietnamese society and that he may experience hardship upon return, at least initially.
The applicant states that his parents are unwell and may die at any time as they do not know about the cancellation of his visa. There is no medical or otherwise probative evidence to support these claims, which the Tribunal considers unpersuasive.
The applicant states that people will view him as a criminal if he is deported from Australia. As noted elsewhere, the Tribunal does not accept that evidence because it is far more common for people to leave Australia due to visa issues than criminal convictions. The Tribunal does not accept that returning from Australia to Vietnam will result in the applicant being viewed as a criminal.
The applicant states that he came to Australia to study but if he returns to Vietnam, he would be humiliated if he returns without having completed his study. The Tribunal does not accept that evidence because it was the applicant’s decision not to pursue his study when he had the option to, for example, after obtaining the temporary or permanent visas. The applicant told the Tribunal that he had to pay the rent and had other expenses and he was getting ready to return to study. The Tribunal is mindful that the applicant had purchased 3 properties and, on his own evidence, he had other priorities before returning to study. In the circumstances, the Tribunal is not satisfied that the applicant had a genuine intention to return to his study and it can hardly be said that the applicant had not completed his study because of the cancellation of his visa.
The applicant told the Tribunal that he tells others in Vietnam about the Australian system being fair but a decision to cancel his visa was unreasonable and if his visa is cancelled, what he told others about the Australian system would be untrue. For the reasons set out in this decision, the Tribunal has formed the view that the decision to cancel the applicant’s visa is the correct decision and not an unreasonable one, however the applicant feels about it.
The applicant’s spouse, Ms Nguyen told the Tribunal that the applicant is a law-abiding citizen, complies with, and respects, the Australian laws and always works and pays taxes. Ms Nguyen states that it would be difficult for the applicant to reintegrate into Vietnamese society and it may be difficult for him to find a job and he cannot rely on the support of his parents. The Tribunal accepts that evidence.

100. The Tribunal rejects many of the applicant’s claims but the Tribunal generally accepts that the applicant has been living in Australia for a number of years, that he is well settled here and has formed strong links. The Tribunal accepts that the applicant has limited employment and other links in Vietnam and that he would have to re-establish these. The Tribunal accepts that considerable hardship may be caused to the applicant and his family if his visa is cancelled.
101. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant has not complied with s 101 of the Act and that there are grounds for cancelling his visa.
102. The Tribunal rejects the applicant’s evidence that he had a ‘one night drunken stand’ with Ms Nguyen and that the birth of their child was an accident. Rather, the Tribunal has formed the view that their relationship was much more serious than the applicant is seeking to portray. The Tribunal has formed the view that the applicant had deliberately misrepresented the nature of his relationship with Ms Nguyen when seeking the Partner visa in order not to jeopardise the grant of the visa. The Tribunal has formed the view that this evidence is untrue and it is of significant concern to the Tribunal that the applicant continued to present these falsehoods in response to the NOICC and to the Tribunal. The Tribunal has found that the breach was deliberate and the Tribunal also finds that the applicant has deliberately continued to misrepresent the circumstances in his dealings with Immigration and the Tribunal.
103. It is also of significant concern to the Tribunal that the decision to grant the visa was based, in part, on incorrect information. It is highly significant, in the Tribunal’s view, that if the applicant’s interactions with Ms Nguyen and his paternity of the child were declared to the delegate, that information is likely to have had an impact on the processing of his Partner visa application. In the Tribunal’s view, these factors weigh strongly in favour of the cancellation.
104. There are other factors that weigh against the cancellation. Most significantly, the Tribunal has formed the view that it is in the best interests of the applicant’s child that his visa is not cancelled. That is a primary consideration and weighs heavily against the cancellation.
105. The cancellation of the applicant’s visa has resulted in the visas held by his partner and child being cancelled. This also weighs strongly against the cancellation, although the Tribunal is mindful that there are separate review processes in relation to the spouse and child.
106. The Tribunal accepts that the applicant has formed strong family, community and employment links to Australia during his residence in this country. The Tribunal also accepts that the applicant has significant assets in Australia. The Tribunal accepts that the applicant and others may experience hardship if the applicant is to leave Australia and if he has to re-integrate into the Vietnamese society and workplace.
107. The Tribunal accepts that the applicant has contributed to Australia, most notably through employment and the payment of taxes. The Tribunal also accepts that there are significant financial implications and likely financial hardship if the applicant is required to leave Australia and the Tribunal accepts that the applicant may experience other forms of hardship if his visa is cancelled. There are also legal consequences to the cancellation of the visa. These factors weigh against the cancellation.
108. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.
109. Having carefully considered the totality of the applicant’s circumstances, the Tribunal decided to place the greatest weight on the nature and significance of the breach, the fact that the decision to grant the visa was based on incorrect answers and the applicant’s subsequent behaviour in relation to his obligations under the Act.
110. 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. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
111. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 801 (Spouse) visa.
112. The Tribunal has no jurisdiction with respect to the other applicants.
Kira Raif
Senior Member

[2024] AATA 2675

2 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice