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

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).
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 4053
Decision Date: 27 September 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Nguyen, against the cancellation of his Subclass 801 (Spouse) visa. Mr. Nguyen had been granted this visa as a secondary applicant, with his father being the primary visa holder. The central dispute arose because the visas held by Mr. Nguyen's parents had been cancelled, leading to a review of Mr. Nguyen's own visa status. The decision was made by Kira Raif, Senior Member.

The legal issues before the Tribunal were whether the ground for cancelling Mr. Nguyen's visa necessitated mandatory cancellation, and if not, whether the Tribunal should exercise its discretion to cancel the visa. The Tribunal was required to consider various factors, including the applicant's compelling need to remain in Australia, his compliance with visa conditions, and the degree of hardship that might be caused by cancellation. The Tribunal also had regard to the applicant's submissions, the Department's Procedures Advice Manual, and evidence provided by the applicant's mother.

The Tribunal reasoned that the ground for cancellation did not mandate its imposition, thus requiring an exercise of discretion. While acknowledging Mr. Nguyen's birth in Australia, integration into the Australian community, and established family and community ties, the Tribunal noted that the cancellation of his parents' visas might suggest that family support could be more readily available outside Australia. The Tribunal accepted that disruption to education and well-being were potential consequences of cancellation, but found claims regarding health issues and psychological damage to be unsupported by probative evidence. Ultimately, considering all circumstances, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Nguyen's Subclass 801 visa. The Tribunal noted it had no jurisdiction concerning the second applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, 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 first named applicant’s Subclass 801 (Spouse) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

As that ground does not require mandatory cancellation, the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion 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’. 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 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 There is no evidence of any non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) 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. 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. 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. 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.