Nguyen (Migration)

[2024] AATA 4053

Nguyen (Migration) [2024] AATA 4053 (27 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Master Sky Bao Minh Nguyen
Mrs Ha Bao Loan Nguyen

REPRESENTATIVE:  Mr Andy Vuong Duc Pham

CASE NUMBER:  2402169

HOME AFFAIRS REFERENCE(S):          BCC2023/7621296

MEMBER:Kira Raif

DATE:27 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 801 (Spouse) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 27 September 2024 at 12:42pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – applicant was granted a Migrant Partner visa, as a secondary applicant – visa held by the father has been cancelled – applicant was born in Australia – established strong family and community ties – in the applicant’s best interests to remain in Australia – circumstances that gave rise to the ground for cancelling his visa were beyond the applicant’s control – decision under review set aside     

LEGISLATION
Migration Act 1958, ss 109, 140, 359

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 30 January 2024 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 801 (Spouse) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Vietnam, born in October 2017. He was included in the application for a Partner visa made by his mother and sponsored by his father, Mr Huynh. The applicant was granted a Migrant Partner visa, as a secondary applicant, in October 2023.

3. In January 2024 the visa held by Mr Huynh was cancelled under s. 109 of the Act and the applicant’s visa was cancelled under s. 140(2) of the Act. The applicant’s mother Mrs Ha Bao Loan Nguyen has made a separate valid application for review and there is a separate review process in relation to the cancellation of her visa. For the purpose of this review, the Tribunal finds that it has no jurisdiction to consider the application by Ms Nguyen.

4. The applicant is a minor. His mother, Ms Nguyen, appeared before the Tribunal on 25 September 2024 to give evidence and present arguments on behalf of the applicant. 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.

5. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

6.    The applicant’s Subclass 801 visa was cancelled under subsection 140(2) of the Act. Section 140(2) relevantly provides:

If:

(a)a person's visa is cancelled under section 109 (incorrect information), 116 or 128 or 137J (student visas); and

(b)another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the other person's visa.

7.    The word ‘only’ in s 140(2) does not mean solely but, rather, means that the fact of another person holding a visa was a condition precedent to the grant of the visa. It may not be the only condition for the visa granted but it is the material condition for the purposes of s 140(2) (Ara v MIBP [2016] FCCA 2154 at [33], upheld on appeal in Ara v MIBP [2017] FCA 130 at [7].)

8.    Sackville J in Rani Santosh v Minister for Multicultural Affairs [1997] 1493 stated, with respect to s. 140(2) that

It might reasonably be expected that, on any such review, the IRT would consider the particular circumstances of the person affected by the Ministerial decision and take into account, inter alia, his or her knowledge of the circumstances giving rise to the cancellation of the primary visa.

Does the ground for cancellation exist?

9.    The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a visa as a secondary applicant as he was included in the application for the Partner visa made by his mother Ms Nguyen. Ms Nguyen was sponsored in that application by her partner, Mr Minh Tri Huynh. The applicant was granted the permanent Partner visa on 26 October 2023.

1. The primary decision record indicates that Mr Huynh’s visa was cancelled under s. 109 on 30 January 2024. The delegate found that the applicant held a visa because of the sponsorship by Mr Huynh and, since Mr Hyunh’s visa was cancelled, the applicant’s visa was also cancelled under s. 140(2) of the Act.

2. On 2 July 2024 the Tribunal affirmed the decision to cancel Mr Huynh’s visa. In July 2024 the Tribunal wrote to the applicant, pursuant to s. 359A of the Act, seeking his comments the fact that Mr Huynh’s visa was cancelled and that, therefore, there may be grounds for cancelling his visa. The Tribunal also sought the applicant’s submissions in relation to discretionary considerations. In his submission to the Tribunal dated 19 July 2024 the applicant does not expressly deal with the grounds for cancellation but has provided evidence in relation to the discretionary considerations, however, in her oral evidence to the Tribunal Ms Nguyen conceded that there are grounds for cancelling the visa.

3. The Tribunal finds that the fact that Mr Huynh held a permanent visa and acted as a sponsor for the applicant in his application for the Partner visa was a condition precedent to the grant of that visa. The Tribunal is satisfied that it was a material condition to the grant of the visa. The Tribunal finds that the applicant was granted the Partner visa only because Mr Hyunh held a visa. The Tribunal further finds that Mr Huynh’s visa was cancelled under s. 109 of the Act. The Tribunal finds that there are grounds for cancelling the applicant’s visa under s. 140(2) of the Act.

4. As that ground does not require mandatory cancellation, the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

5. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

6. The applicant’s mother provided written submissions and oral evidence in relation to both the applicant’s and her own circumstances. The Tribunal’s summary of evidence and reasoning is thus common to both applicants in several respects.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

7. The applicant was born in Australia and was granted the permanent visa as a result of his father’s sponsorship. The visas held by the applicant’s parents have now been cancelled. While the Tribunal accepts that the applicant attends an Australian school and is integrated into the Australian community, the fact that his parents no longer have the permanent visas to remain in Australia might suggest that the applicant does not have a compelling need to remain in Australia.

   The extent of compliance with visa conditions

8. There is no evidence of any non-compliance with visa conditions.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

9. In his submission to the Tribunal dated 19 July 2024 the applicant submits that he is deeply integrated into the social fabric of the local community and has established strong family and community ties. The applicant is enrolled in a school and, his mother claims, the sudden disruption to his education would be detrimental to his academic progress and well-being. The applicant refers to the emotional and psychological impact of the cancellation.

10. The Tribunal generally accepts that, given the fact that the applicant has spent his entire life in Australia, he has formed ties in this country. The Tribunal accepts that such ties would be disrupted if the applicant was to leave Australia.

11. The applicant’s mother refers in her written submission to the applicant’s health issues, emphasising the need for stability and emotional and family support. Ms Nguyen states that the disruption caused by visa cancellation could exacerbate the health issues and could cause psychological damage to the applicant. These claims are unsupported by probative evidence, such as, for example, reports from health professionals or child welfare professionals. The applicant has not established that he would be unable to access adequate support and health care if his visa is cancelled. The Tribunal does not accept these claims.

12. The applicant refers in his written submission to judicial and Tribunal precedents that recognise the importance of community and family ties in visa cancellation cases. The Tribunal accepts that community integration, family and community ties are relevant considerations. The Tribunal also accepts that stability and family support would be of benefit to the applicant, although it is not entirely clear to the Tribunal why such stability and support can only be available in Australia. It is significant, in the Tribunal’s view, that the visas held by the applicant’s parents have been cancelled. That might suggest that the family support may be more readily available to the applicant outside of Australia than in Australia.

13. In his written submission to the Tribunal the applicant refers to several authorities which, he claims, require the Tribunal to have regard to the applicant’s family ties and community integration. Some of the cases to which the applicant refers relate to cancellations under s. 501 where the policy and Ministerial Directions require completely different considerations in determining whether to cancel a visa or to revoke the cancellation of a visa. The Tribunal also notes that the consequences of any cancellation under s. 501 are far more significant as they would preclude any future application for an Australian visa, which is clearly not the case here. As such, the Tribunal does not consider reference to authorities that relate to a different cancellation regime to be helpful.

14. The Tribunal has formed the view that some of the claims put forward on the applicant’s behalf have been significantly exaggerated. Nevertheless, the Tribunal accepts that, since the applicant was born in Australia and has lived the entirety of his life in Australia, and given the level of his integration, there will be hardship if he was required to leave Australia as a result of his visa being cancelled.

    Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

15. The ground for cancellation arises because the applicant was granted the visa because another person – the applicant’s father – was granted the visa and the visa held by the father has been cancelled.

16. The circumstances relevant to the cancellation of the visas held by the applicant’s parents are set out in their respective decision records. There is no suggestion that the applicant himself was involved in any action that may have been contrary to the legislative provisions and, given his young age, he would have had no influence over his parents’ actions. In this case, it may be said that the ground for cancellation arose due to the circumstances beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

17. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

18. There are no persons whose visa would be subject to consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

19. If the applicant’s visa is cancelled, and unless the applicant is granted another visa, the applicant will become an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that the applicant would be subject to indefinite detention. The cancellation of the visa would result in the applicant being subject to an exclusion period in relation to future visa applications and the operation of s. 48, giving him limited options of future visa applications onshore. If the applicant’s visa is cancelled, he would lose the entitlements he may have acquired as a permanent resident of Australia.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

20. There is no evidence, and the applicant does not claim, that non-refoulement obligations arise in this case.

21. With respect to the applicant’s best interest, the submission of his mother is that the applicant has been settled in Australia, involved in an Australian schooling, social and other activities. In oral evidence Ms Nguyen also stated that the applicant was born in Australia and does not know any other language and is not familiar with the Vietnamese environment. Ms Nguyen claims that if the applicant was forced to leave the country, it could have an adverse effect on him psychologically.

22. The Tribunal accepts that the applicant was born in Australia and is acquainted with the Australian way of life, while being unfamiliar with any other country. However, the Tribunal is also mindful that it is not uncommon for families to migrate to other countries, thus uprooting children from their familiar environment. That is, a move to another country, away from the familiar environment, is not in itself, and not necessarily, contrary to the best interests of a child. Ms Nguyen claims that Australia is a better country than Vietnam and the applicant would be moving to a worse situation. In the Tribunal’s view, there is no clear basis for that assertion.

23. Ms Nguyen also told the Tribunal that the applicant may have to repeat a year and would be mocked by his peers and he may thus be psychologically affected. In the Tribunal’s view, there is no probative basis for such assertions and the Tribunal does not accept that the applicant would be mocked or bullied or that he would be psychologically affected if he was to leave Australia.

24. Ms Nguyen submits that the applicant son does not speak Vietnamese and cannot attend mainstream school in Vietnam while she could not afford to send him to an English school. Even if it is true that the applicant does not speak Vietnamese, in the Tribunal’s view, it is not inconceivable that a 7 year old child would be able to pick up another language without much difficulty. No persuasive reason has been offered as to why the applicant’s particular circumstances would prevent him from being able to settle in Vietnam or learn the Vietnamese language.

25. In his written submission to the Tribunal dated 19 July 2024 the applicant refers to the harm to children and people more generally that can be caused by the immigration system and processes and removal from Australia. These are hardly matters over which the Tribunal has any control. The applicant notes that the law allows for children’s visas to be cancelled and for children to be detained and forcibly removed from Australia. The applicant refers to the ‘unfair’ and ‘opaque’ system and the public abhorrence towards such system. The Tribunal is mindful that these assertions are entirely unsupported by any evidence and it is difficult to see on what basis these are being made. In any case, the policy settings are not a matter for this Tribunal. In oral evidence, Ms Nguyen also referred to some studies done about the impact of change upon children. These claims have been addressed above.

26. The applicant claims in his response to the s. 359A letter that due to the operation of PIC 4013, he could be separated from his father as the father would be subject to a three year exclusion period. Putting aside the fact that PIC 4013 does not apply in relation to a great number of visas, including most permanent visas, and the fact that it encompasses a waiver provision, the Tribunal notes that the visas held by the applicant’s parents have been cancelled. That is, the applicant’s parents no longer have the right to remain in Australia permanently. Ms Nguyen in her evidence to the Tribunal spoke about the need for the child to have access to, and support of, both parents. The Tribunal accepts that evidence and considers that in such circumstances, the best interests of the child may be to remain with his parents outside of Australia (noting that they no longer have permanent visas to remain in Australia).

27. In his written submission the applicant refers the delays associated with visa processing, stating that this could result in permanent or protracted family separation in breach of ICCPR. The applicant claims that permanent exclusion of people from Australia and their families cannot be considered reasonable. The basis of this claim, and its relevance to the present circumstances, is unclear. There is no suggestion that in the present case, any individual would be permanently excluded as a result of the cancellation or otherwise. The relevance of delays in visa processing is also unclear, as it is open to the family to return to Vietnam, once their visas are cancelled, avoiding any separation. Indeed, the fact that the visas held by the applicant’s parents have been cancelled may favour the cancellation of the applicant’s visa so as to prevent the separation of the family unit.

28. The Tribunal has found the applicant’s claims about the potential effect on him of the visa cancellation to be greatly exaggerated. In particular, the Tribunal does not accept that the applicant will be unable to learn Vietnamese, get acquainted with the Vietnamese culture and the schooling system or that the applicant would experience psychological harm if his visa is cancelled.

29. Nevertheless, the Tribunal accepts that the applicant was born in Australia and has been living here his entire life. While the Tribunal is of the view that he is likely to be able to learn Vietnamese and, eventually, integrate into the Vietnamese school system, that may take time. The Tribunal finds that it may be in the applicant’s best interests to remain in Australia.

30. The applicant’s best interests are a primary consideration, but not a determinative one.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. As noted above, the applicant was born in Australia and has lived the entirety of his life in Australia. He attends school and has formed some friendships. The Tribunal accepts that the applicant has strong ties in Australia.

    Any other relevant matters

32. The applicant’s claims have been addressed above.

33. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant was granted the visa only because his father held the visa and his father’s visa was cancelled.

34. In the circumstances of this case, the Tribunal has decided to give greatest weight to the following considerations.

35. Firstly, and most significantly, the Tribunal notes the circumstances in which the ground for cancellation arose. The Tribunal has formed the view (for the reasons stated in the separate decision records relating to the applicant’s parents) that both the applicant’s mother and his father had been involved in the fraud and the provision of incorrect answers. However, the same cannot be said in relation to the applicant. He was not a participant in any fraud and had no influence over the conduct of others. The Tribunal has formed the view that the circumstances that gave rise to the ground for cancelling his visa were beyond the applicant’s control. That is a significant consideration in favour of setting aside the cancellation.

1. Secondly, the Tribunal considers that it is in the best interest of the applicant that the visa is not cancelled. Thirdly, the Tribunal also accepts that a degree of hardship may be caused to the applicant by the cancellation, given his integration into the Australian community. The Tribunal has determined that these factors outweigh those that may favour the cancellation.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

3. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 801 (Spouse) visa.

4. The Tribunal has no jurisdiction with respect to the second named applicant.

   Kira Raif
   Senior Member