Nguyen (Migration)

[2024] AATA 3986

Nguyen (Migration) [2024] AATA 3986 (26 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

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

REPRESENTATIVE:  Mr Andy Vuong Duc Pham

CASE NUMBER:  2401999

HOME AFFAIRS REFERENCE(S):          BCC2023/7621245

MEMBER:Kira Raif

DATE:26 September 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 second named applicant.

Statement made on 26 September 2024 at 6:57am

CATCHWORDS
MIGRATION – Cancellation – Subclass 801 (Spouse) visa – visa held by the applicant’s partner has been cancelled – applicant can no longer fulfil the purpose by remaining in Australia – claims have been significantly exaggerated – best interests of the child may be to remain with his father outside of Australia – significant ties in Australia given the length of her residence – applicant has not been truthful in her past dealings with the Department –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 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 140 of the Migration Act 1958 (Cth) (the Act). There is a separate decision to cancel a visa held by the second named applicant and he has another application for review before this Tribunal. For the purpose of the present proceedings, the Tribunal has no jurisdiction in relation to the second named applicant.

2. The applicant is a national of Vietnam, born in April 1981. She was granted the Partner visa on 26 October 2023. The delegate cancelled the visa under s 140(2), finding that the applicant was granted the visa on the basis of the sponsorship by her partner, Mr Huynh and Mr Huynh’s visa had been cancelled. The applicant is seeking review of the delegate’s decision.

3.    The applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review.

4.    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 affirmed.

Relevant law

5. 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.

6. 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].)

7.    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?

8.    The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a visa because Mr Minh Tri Huynh was granted a visa. The primary decision record indicates that on 24 April 2018 the applicant made an application for a Partner visa, sponsored by Mr Minh Tri Huynh. She was granted the Provisional Partner visa on 2 March 2023 on the basis of being the spouse or de facto partner of the sponsor. 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 her comments the fact that Mr Huynh’s visa was cancelled and that, therefore, there may be grounds for cancelling her visa. The Tribunal also sought the applicant’s submissions in relation to discretionary considerations. In her 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 the applicant (through her representative) conceded that there are grounds for cancelling her visa.

3. The Tribunal finds that the fact that Mr Huynh held a permanent visa and acted as a sponsor for the applicant in her application for the Partner visa was a condition precent to the grant of that visa. The Tribunal is satisfied that it was a material condition to the grant of the Partner visa to the applicant. 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’.

   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

6. The applicant initially travelled to Australia on a Student visa to undertake study and she provided to the Tribunal evidence of her past study in Australia and a copy of the earlier Tribunal decision in relation to her Student visa. In oral evidence the applicant told the Tribunal that she came to Australia in 2007 to study and expand her knowledge. The applicant states that in Vietnam, she studied to please her parents but did not enjoy her work so she decided to study what she wanted overseas. After coming to Australia she studied English and a Diploma of Children’s services, which she could not complete. She then completed a Diploma of Enrolled Nursing, Certificate III in Aged Care, Certificate IV in Disability, Certificate II in Technology Information and an Advanced Diploma and Bachelor of Accounting and MBA. The applicant states that she completed her studies in April 2021 and her last Student visa expired in 2021.

7. The Tribunal accepts that the applicant travelled to Australia in order to study and she did complete a number of courses in Australia. The Tribunal is mindful that it is the underlying requirement for the grant of a Student visa that applicant is a genuine temporary entrant to this country. The applicant provided to the Tribunal a copy of a Tribunal’s decision in relation to her Student visa, dated September 2020, in which she claimed to be a temporary entrant to Australia with the intention of returning to Vietnam. The applicant told the Tribunal that until that time she had a genuine intention to return to Vietnam and pursue employment there but once her son started schooling in Australia, she thought it would be better for him to remain in Australia. The Tribunal finds that the applicant had satisfied the purpose of her travel to Australia on a Student visa.

8. In considering the purpose of the applicant’s stay in Australia, the Tribunal is mindful that the visa that is the subject of this review is the Partner visa. The purpose of being granted that visa is to enable the applicant to remain with her partner. However, as the visa held by the applicant’s partner has been cancelled, the applicant can no longer fulfil that purpose by remaining in Australia.

9. In terms of compelling need to remain in Australia, the applicant stated that initially, her intention was to complete her studies and return to Vietnam and support her parents, as she is the only child, but since she became a mother and has a child born in Australia and who is settled in Australia, she wants to give her son the best opportunities in life and wants the opportunity to remain in Australia. The applicant provided to the Tribunal evidence of her employment. She states in her written submission to the Tribunal that she has established strong family and community ties in Australia and the ‘sudden’ cancellation of the visa would disrupt such ties and cause immense distress to her, as well as hardship. The applicant refers to the compelling need to remain in Australia, given in particular her son’s settlement in this country.

10. The Tribunal generally accepts that the presence of a minor in Australia may constitute a compelling reason for the applicant to remain in Australia, although in this case the Tribunal considers it significant that the child’s visa has also been cancelled and, at the time of this decision, the child has no permanent visa enabling him to remain in Australia.

    The extent of compliance with visa conditions

19.    There is no evidence before the Tribunal of any non-compliance with visa conditions.

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

1. In her submission to the Tribunal dated 19 July 2024 the applicant states that she and her son are deeply integrated into the social fabric of their local community and have established strong family and community ties. The applicant states that her child is enrolled in a school and 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.

2. The Tribunal has considered the reasons of the Tribunal in its September 2020 decision relating to the applicant’s Student visa (the applicant provided to the Tribunal a copy of the decision record). At paragraph 23 of that decision the Tribunal notes that the applicant was asked whether she had formed any community ties in her time in Australia and she stated that she had not. That evidence suggests either that, if the applicant was truthful, her ties were formed more recently, after she attended the Tribunal hearing in March 2020 and not throughout her stay in Australia as she now claims, or, alternatively, that the applicant has not been truthful in her claims to the previous Tribunal and that she is willing to state whatever she believes would assist her with obtaining the visa.

3. Nevertheless, the Tribunal accepts that, given the length of the applicant’s residence in Australia, she has formed ties in this country, including family, community, employment, financial and other ties. The Tribunal accepts that such ties would be disrupted if the applicant was to leave Australia as a result of her visa being cancelled.

4. The applicant also refers to the financial hardship. She states that as a NDIS support worker, she plays a crucial role in supporting her family and the loss of employment would exacerbate the difficult situation. The applicant also refers to financial stress that the couple are experiencing due to their mortgages. However, the applicant’s evidence to the Tribunal is that both she and her husband retain Bridging visas which permit them to work and it is thus not apparent why their circumstances now would be different to their circumstances earlier. The Tribunal also notes that if the applicant decides to leave Australia as a result of her visa being cancelled (although she told the Tribunal she intends to remain in Australia and appeal the decision), there may be an option of selling the Australian properties. There is no evidence before the Tribunal as whether the applicant would be able to service the mortgage if her visa remains cancelled, or what the family’s financial position might be if the investment properties are sold. On the evidence before it, the Tribunal does not accept there would be financial hardship resulting from the cancellation of the visa.

5. The applicant provided a number of documents concerning her employment, including awards and certificates of recognition, an employment contract and taxation records. The Tribunal accepts that the applicant contributes to the community through her employment. The applicant has not established that if she cannot continue with her employment, for example, due to her visa being cancelled, her employer or other industry groups would be adversely affected.

6. The applicant refers to her and her son’s health issues, emphasising the need for stability and emotional and family support. The applicant states that disruption caused by visa cancellation could exacerbate the health issues and could cause psychological damage to her son. The Tribunal has found such claims are unsupported by probative evidence, such as, for example, reports from health professionals or child welfare professionals. The applicant has not established that she or any member of her family would be unable to access adequate support and health care if their visas are cancelled. The Tribunal does not accept these claims.

7. The applicant refers in her 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 and her son, although it is not entirely clear to the Tribunal why such stability and support can only be available in Australia. The Tribunal notes that the visa held by the applicant’s husband had been cancelled and at present, he has no right to remain in Australia permanently. (The applicant told the Tribunal he has filed an appeal.) That might suggest that the family support may be more readily available to the applicant outside of Australia than in Australia.

8. The Tribunal also notes that the applicant did spend a significant proportion of her life outside of Australia and, at least previously when she was seeking Student visas (for which she would have to show that she is a genuine temporary entrant), the applicant would have claimed her intention to return to her home country rather than reside in Australia. The 2020 Tribunal decision refers to the applicant’s claims that her intention is to return to Vietnam to support her parents and in that case the Tribunal accepted the applicant’s claims that she was a genuine applicant for entry and stay as a student. The Tribunal found in that case that the length of time the applicant had spent in Australia, and the nature of the courses she had enrolled in, were not indicative of her intention to remain in this country permanently or for an indefinite period. That is, as recently as in 2020, the applicant claimed her intention to return to Vietnam and she claimed that she had no intention to remain in Australia permanently or indefinitely. The applicant considered herself capable of returning to, and residing in Vietnam. The Tribunal is of the view that the applicant’s present claims that the extent of her integration into the Australian community prevent her from departing Australia contradict that earlier evidence. The applicant’s present claims also contradict the applicant’s claim that her study in Australia was only to further her employment opportunities in Vietnam and that she always intended to return to Vietnam upon completion of her Australian study.

9. The applicant told the Tribunal that she had changed her mind once she had a child born in Australia and she wanted her child to have the best opportunities. The Tribunal notes that the 2020 Student visa hearing took place well after the child was born in 2017. The applicant then told the Tribunal that when her son was young, he did not yet commence school but once he started schooling in Australia, the circumstances changed. The Tribunal does not accept that evidence because when giving evidence to the Tribunal in support of the Student visa in 2020, the applicant would have been aware that her then three year old child would soon be commencing school in Australia. The applicant would have been cognisant of the issues that she now claims are preventing her and her child from leaving Australia, such as the child’s settlement, schooling and integration in the Australian life. The applicant’s evidence to the earlier Tribunal that (despite her child being three years old at the time), her study in Australia was only to further her employment opportunities in Vietnam, that she had not formed ties in Australia and that she intended to return to Vietnam minimises, in the Tribunal’s view, the persuasiveness of her claims to the present Tribunal that hardship would be caused to her and her child if she was to leave Australia.

10. The applicant told the Tribunal that after she had ‘accidentally’ told her husband about his paternity of their child, he decided to sponsor the child for the Australian visa. The primary decision record indicates that she made the application for the Partner visa in 2018 which was well before she told the previous Tribunal of her lack of ties in Australia and of her intention to return to Vietnam.

11. In her written submission to the Tribunal the applicant refers to several authorities which, she 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.

12. In oral evidence the applicant refers to better working conditions in Australia and she states that, given her age and Australian qualifications, she might not be able to get a job in Vietnam. The applicant states that her jobs in Australia have improved and become more senior and she has better opportunities in Australia that she would not have in Vietnam. Again, the Tribunal notes that when last seeking the Student visa, the applicant had claimed that she intended to return to Vietnam and seek employment there. When the Tribunal raised this concern with the applicant during the hearing, the applicant stated that when she graduated, she was a recent graduate with good employment prospects but since that time, she had not worked in accounting and no longer has the knowledge and she would not be able to get a job in that field in Vietnam as she had initially planned. However, the Tribunal is mindful that the applicant had never worked in that field in Australia and if she is willing to work in a different field in this country (with no stated intention to work in accounting) it is unclear why she would not be able to seek different kind of work in Vietnam.

1. Importantly, the applicant presented no evidence of having sought, and of being denied employment in Vietnam and she told the Tribunal that she last sought a job in Vietnam in 2003 (she then said she also applied for nursing jobs in 2012 but was told she was over-qualified). In circumstances where the applicant has not sought employment for over 10 years and has not established her inability to seek or obtain employment in Vietnam, the Tribunal does not accept that the applicant would be unable to find employment in Vietnam.

2. The applicant also states that if she was to get a job in Vietnam, she would have to start “at the bottom” and her income would not be sufficient to support herself and her child, particularly as she also has to support her parents. Again, that claim is entirely unsupported by any evidence. The applicant has not presented any evidence of what jobs she may apply for or obtain, or what income she could obtain from her employment and what her living expenses might be. The applicant presented no evidence of having financially supported her parents or of the need to support her parents in the future. In the absence of such evidence, the Tribunal is of the view that the applicant’s claim that she would not be able to find employment or that she would not be able to support herself and her child financially are without foundation and the Tribunal does not accept these claims.

3. The Tribunal has formed the view that many of the applicant’s claims have been significantly exaggerated. Nevertheless, the Tribunal accepts that, given the length of the applicant’s stay in Australia, and the level of her integration, there will be some hardship if she was required to leave Australia as a result of her visa being cancelled.

   The circumstances in which the ground for cancellation arises

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

5. The circumstances leading to the cancellation of the visa held by the applicant’s spouse are noted in the primary decision record and the applicant addressed some aspects of these in her submission to the Tribunal of 22 July 2024. In oral evidence the applicant told the Tribunal that her past evidence was true but she felt she was disbelieved.  

   Past and present behaviour of the visa holder towards the department

6. The primary decision record sets out the circumstances that led to the cancellation of the visa held by the applicant’s spouse. The applicant told the Tribunal that she felt she was not believed or listened to but she did not do anything wrong and she refers to ‘wrong accusations’. The Tribunal’s reasoning in relation to the visa previously held by the applicant’s spouse is set out in a separate decision record that relates to the cancellation of his visa. As the Tribunal noted in the course of the hearing, it had formed the view that the applicant had not been truthful in her dealings with the Department and, in particular, in her evidence concerning her relationship with her husband and the timing of that relationship. While the applicant claims that she had done nothing wrong, the Tribunal has formed the view that the applicant had not been truthful about the circumstances of their relationship. The Tribunal finds that the applicant was not truthful in her past behaviour towards the Department.

   Whether there would be consequential cancellations under s 140

7. The cancellation is itself a cancellation under s.140 and there would not be a consequential cancellation if the applicant’s visa is cancelled. The visa held by the applicant’s child has been cancelled, separately, under s. 140 as a result of his father’s visa being cancelled and is the subject of a separate review process.

   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

8. 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 her limited options of future visa applications onshore. If the applicant’s visa is cancelled, she would lose the entitlements she 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

9. The applicant told the Tribunal that if she is to return to Vietnam, she would experience prejudice because she gave birth to a child out of wedlock and was a single mother. It is unclear how the community would be aware of the circumstances of her son’s birth and of her marriage, given that the applicant has been married to the father of her child for a number of years. While the applicant told the Tribunal that her parents are aware of her circumstances, she does not seem to suggest that it would be her parents who would subject her to prejudice and discrimination. The applicant claims people would know because they did not hold a traditional Vietnamese wedding but in the circumstances where the applicant and her husband had been living in Australia for many years, the Tribunal does not consider that the absence of a traditional wedding would inform the community that their child was born out of wedlock.

10. The applicant refers to general prejudices against women and single mothers that exist in Vietnam. The Tribunal found the applicant’s claims to be extremely vague and the Tribunal does not accept that these matters to which the applicant refers amount to serious harm or significant harm. No other concerns have been raised by the applicant. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

11. The applicant refers to the best interests of her son, noting his settlement in Australia and involvement in school, social and other activities. In oral evidence the applicant also stated that her son was born in Australia and does not know any other language and is not familiar with the Vietnamese environment. The applicant claims that if her son was forced to leave the country, it could have an adverse effect on him psychologically.

12. The Tribunal accepts that the child 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. The applicant states that in this case, Australia is a better country than Vietnam and her son would be moving to a worse situation. In the Tribunal’s view, there is no clear basis for that assertion. It may be that, subjectively, the applicant believes that living in Australia would be better for her son than in Vietnam, but she has not satisfied the Tribunal that objectively, that would be the case.

13. The applicant also states that her son may have to repeat a year and would be mocked by his peers. The applicant suggests that her son may be psychologically affected. In the Tribunal’s view, there is no probative basis for such assertions and the Tribunal does not accept that the child would be mocked or bullied or that he would be psychologically affected if he was to leave Australia.

14. The applicant states that her 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 child 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. The applicant has not provided a convincing reason why her son’s particular circumstances would prevent him from being able to settle in Vietnam or learn the Vietnamese language.

15. The Tribunal is also mindful that from the time of the child’s birth in 2017, the applicant would have been aware that her child would be becoming more settled in Australia. The Tribunal is of the view that from the time the child was born, the applicant would have realised that by remaining in Australia with her son, he would be immersed in the Australian environment, English language, have Australian friendships, etc. The applicant would have known that the more time she had spent in Australia, the stronger the child’s ties to Australia would be and the harder it would be to break such ties and to return to Vietnam. Despite that, the applicant chose to remain in Australia, extend her Student visas and risk what she now claims the difficult circumstances that her son would experience upon return to Vietnam. The applicant told the Tribunal that she only realised these matters once her son started schooling but, as noted above, the Tribunal does not accept that evidence and is of the view that the applicant would have been cognisant of such issues from the time of the child’s birth.

16. The applicant explained to the Tribunal that at the time she wanted to complete her course and not have the adverse immigration record, and this was also before her son started schooling in this country. As for the former claim, it seems the applicant was more concerned for her visa than about her son’s welfare, suggesting that her present claims about the consequences of the child leaving Australia are exaggerated. As for the latter claim, the applicant would have realised that with time, her son’s integration into Australia and the Australian schooling system would increase.

17. In her 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, the applicant also referred to some studies done about the impact of change upon children. These claims have been addressed above.

18. The applicant claims in her response to the s. 359A letter that due to the operation of PIC 4013, the child 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 father’s visa has been cancelled. That is, the child’s father no longer has the right to remain in Australia permanently. The applicant told the Tribunal 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 father outside of Australia than to remain in Australia and be separated from his father.

19. In her 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 visa held by the applicant’s spouse has been cancelled may favour the cancellation of the applicant’s visa so as to prevent the separation of the family unit.

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

21. Nevertheless, the Tribunal accepts that the child 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 child’s best interests to remain in Australia. The Tribunal is mindful that the cancellation of the applicant’s visa does not equate to the cancellation of the child’s visa, nor does it necessarily mean that the child would have to depart Australia.

22. The best interests of the child 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

23. In her evidence to the Tribunal the applicant refers to having strong family and community ties in Australia, stating that the ‘sudden’ cancellation of the visas would cause immense emotional distress. The applicant refers to her ‘deep integration’ into the community through participation in community events and activities. The applicant refers to close relationships with neighbours, friends and regional organisations, which provide her and her child with emotional and social support. The applicant provided in her submission to the Tribunal a number of documents evidencing community support.

24. The Tribunal finds the applicant’s claims extremely vague and generalised. As noted above, these contradict the applicant’s evidence given to the previous Tribunal in 2020 when the applicant claims she had no ties in Australia (unless she had only formed such ties in the past four years and not in more than 15 years of her residence here). The Tribunal is also of the view that emotional and social support is not limited to individuals who live in geographical proximity and there is no apparent reason why such support would cease if the applicant was to leave Australia.

25. Nevertheless, the Tribunal accepts  that the applicant has been living in Australia for a number of years and that she may have formed strong connections in this country.

    Any other relevant matters

26. The applicant’s claims are addressed above.

27. The Tribunal has considered the totality of the applicant’s evidence. The Tribunal has found that there are grounds for cancelling the applicant’s visa. The Tribunal finds that there are strong reasons why the visa should not be cancelled. Primarily, the Tribunal accepts that the applicant and her family may experience hardship if her visa is cancelled, that she has significant ties in Australia given the length of her residence (which include her employment, financial investments, family and community connections) and that it may be in the best interests of her child to remain in Australia. The Tribunal accepts that the legal consequences to the visa being cancelled would limit the applicant’s future visa options. These matters weigh against the cancellation.

28. The Tribunal has formed the view that the cancellation would not breach Australia’s non-refoulement obligations. The Tribunal acknowledges the applicant’s past compliance with visa conditions.

29. The Tribunal has decided, in all the circumstances of this case, to give greatest weight to considerations that weigh in favour of the cancellation.  Firstly, the applicant can no longer fulfil the purpose of her stay in Australia because her stay, after completion of her studies and the expiry of the Student visa, was to enable the applicant to remain with her partner and the partner no longer holds an Australian permanent visa.

30. Secondly, and significantly, in the Tribunal’s view, the Tribunal places weight on the fact that the applicant has not been truthful in her past dealings with the Department, in particular in relation to her evidence concerning the circumstances of her relationship with her husband. Such evidence was central to her eligibility for the Partner visa.

31. The Tribunal has formed the view that these considerations outweigh others. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

32. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 801 (Spouse) visa.

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

    Kira Raif
    Senior Member