Nguyen (Migration)

[2019] AATA 3638

Nguyen (Migration) [2019] AATA 3638 (21 August 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tat Hieu Nguyen

CASE NUMBER:  1821951

DIBP REFERENCE(S):  BCC2017/608229

MEMBER:Nicholas McGowan

DECISION:Sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) –request for DNA evidence – best interest of children – retention of family unit – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 107, 109
Migration Regulations 1994 (Cth), r 2.41

REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 820 (Spouse) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on April 11 2019 to give evidence and present arguments. Subsequent to this public hearing this tribunal made a written request on 11 April 2019 to the applicant, and formally invited him to provide DNA evidence, which the applicant has since done.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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. Extracts of the Act relevant to this case are attached to this decision.

7. This tribunal has examined a copy of the s.107 notification on the department of immigration file, including receipt for the delivery of that notification to the applicant via registered mail. This 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.

   Was there non-compliance as described in the s.107 notice?

8. The issue before this 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 section 108 in the following respects. The relevant non-compliance was outlined in the delegate’s decision record. Having discussed the non-compliance identified by the delegate, and having discussed these at length with the applicant who detailed the circumstances in which his non-compliance occurred, this tribunal is left in no doubt that the applicant assumed his brother’s identity and told a number of untruths in order to migrate to Australia. For these reasons, this tribunal finds that there was non-compliance with sections 101 and 103 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

9. 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).

10. 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 r.2.41 of the Regulations. Briefly, they are:

    ·     the correct information

    ·     the content of the genuine document (if any)

    ·     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 circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

    ·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

    ·     any other instances of non-compliance by the visa holder known to the Minister

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

11. 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.

12. Relevantly, this tribunal has considered whether any international obligations would be breached as a result of the cancellation, in particular, family unity principles and the obligation to consider the best interests of the child.

13. In this case, the applicant has provided DNA evidence from DNA Solutions which confirms the parties’ claimed parentage of their Australia-citizen children (triplets) born 30 May 2013 (folios 35-63) who are in addition to their Australian born son born 1 October 2011.

14. It follows (form the above) that this tribunal must weigh the best interests of the Australian citizen sponsor and the four Australian citizen children and Australia’s international legal obligations (in respect to the children and their rights in particular), with the migration history of the applicant. Importantly, there is no suggestion or evidence of any criminal conviction in Australia (or elsewhere) of the applicant. The incidences relied upon to cancel the applicant’s visa occurred some eight years ago. The applicant now has four Australian-citizen children (including triples) together with his Australian citizen wife. They continue to live together. The retention of the family unit (where possible) is important not only to the sponsor and their child, but also to the Australian community as keeping families together is a fundamental aspect to Australian social policy.  Whilst this tribunal is not unsympathetic with the delegate’s decision and its considerations regarding the cancellation, this tribunal finds the applicant’s circumstances persuasive in this unique case.

15. This 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. Further, having regard to all the relevant circumstances, as discussed above, this tribunal concludes that the visa should not be cancelled.

    DECISION

16. This tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Statement made in Melbourne on 21 August 2019 at 11:40am