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…

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 3986
Decision Date: 26 September 2024

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the cancellation of a Subclass 801 (Spouse) visa held by the first applicant, Ms. Nguyen. The appeal also involved a second applicant, regarding whom the Tribunal noted it had no jurisdiction. The core of the dispute revolved around whether the cancellation of Ms. Nguyen's visa was justified, particularly in light of her partner's visa cancellation, which meant she could no longer fulfil the purpose of her visa by remaining in Australia with him.

The Tribunal was required to determine whether the grounds for cancellation of Ms. Nguyen's visa necessitated mandatory cancellation, and if not, whether the discretion to cancel the visa should be exercised. In considering this discretion, the Tribunal had regard to various factors, including the applicant's stated purpose for travelling to and remaining in Australia, her compelling need to remain, and the potential disruption to her established ties. The Tribunal also considered the best interests of her child, who was born and settled in Australia.

In its reasoning, the Tribunal accepted that Ms. Nguyen had initially travelled to Australia on a Student visa with the genuine intention of studying and returning to Vietnam. However, it noted that her circumstances had evolved, including her becoming a mother to a child settled in Australia. While acknowledging her desire to provide her son with the best opportunities and her claims of significant family and community ties, the Tribunal found that the cancellation of her partner's visa meant she could no longer fulfil the primary purpose of her Spouse visa. The Tribunal concluded that, when considering all circumstances, the grounds for cancellation outweighed other considerations, leading to the affirmation of the decision to cancel her visa.

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

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 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.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 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 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. 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. 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. 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.