NGUYEN (Migration)

[2018] AATA 4245

NGUYEN (Migration) [2018] AATA 4245 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs THI THU HANG NGUYEN
Miss ANH THU NGUYEN
Miss MAI PHUONG NGUYEN

CASE NUMBER:  1804285

DIBP REFERENCE(S):  BCC2018/774536

MEMBER:Antoinette Younes

DATE:17 September 2018

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 309 (Spouse (Provisional)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 September 2018 at 12:55pm

CATCHWORDS
MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – sponsor’s visa cancelled – incorrect information – disclosure of child – knowledge of the existence of a child – original birth certificate – DNA testing – relationship with sponsoring partner ended – relationship with current partner – decision under review set aside


LEGISLATION
Administrative Appeals Act 1975 (Cth), ss 27, 30

Migration Act 1958 (Cth), ss 107, 109, 140, 338

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to cancel the applicants’ Subclass 309 (Spouse (Provisional)) visas under s.140(2) of the Migration Act 1958 (the Act). The delegate cancelled the visas pursuant to s 140(2) following the cancellation of the visa of Mr Quoc Hung Nguyen pursuant to s.109 of the Act.

2. The first-named applicant appeared before the Tribunal on 4 September 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

3. The applicants were represented in relation to the review by their registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   JURISDICTION ISSUE

5. The applicants lodged a combined application for review including all three applicants.  However, each applicant was the subject of a separate cancellation decision and consequently in these circumstances, there should have been three separate applications for review.  This issue was raised with the Mr Quoc Hung Nguyen and Ms Thi Thu Hanh Nguyen.  The Tribunal received submissions contending amongst other things that the Tribunal has jurisdiction pursuant to s 338 of the Act and ss 27 and 30(1) of the Administrative Appeals Act 1975 (AAT Act). It is correct that the Tribunal has jurisdiction to review discretionary cancellations under s.140(2), but separate applications are required. Section 24Z of the AAT Act provides, amongst other things, that Part IV Reviews by the Tribunal of decisions does not apply in relation to a proceeding in the MRD.

6. The Tribunal is satisfied that three separate applications had to be lodged and as they were not, the Tribunal does not have jurisdiction in relation to Anh Thu Nguyen

   
   

   and Mai Phuong Nguyen.

7. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

   ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and

   ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

8. The word ‘only’ in s.140(2) means that the fact of another person holding a visa was a condition precedent to the grant of the visa. In the current matter, the applicants’ visas were cancelled under s.140(2) because they were sponsored by a person whose visa was cancelled. Unlike s.140(1), discretionary cancellations under s.140(2) do involve a ‘decision’, and the Tribunal generally has jurisdiction where the visa cancellation decision is a Part 5-reviewable decision under s.338 or a Part 7-reviewable decision under s.411. A discretionary consequential cancellation under s.140(2) is reviewable if the visa holder is in Australia and not in immigration clearance at the time of decision and where the Minister has not issued a conclusive certificate.[1]

   [1] s.338(1)(a) [Part 5], s.411(2) [Part 7].

   BACKGROUND

9. 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.

10. 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.

11. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record a copy of which the applicant provided to the Tribunal.  Relevantly, the Tribunal referred to the information that:

    i)   On 21 March 2008, the applicant’s husband, Quoc Hung Nguyen arrived in Australia as the holder of a subclass 572 student visa. On 12 February 2009, he applied for a Combined Spouse UK–820/BS– 801 Partner visa, sponsored by an Australian citizen, Thi Hue DINH.

    ii)     On 12 February 2009, Quoc Hung Nguyen completed a Form 47 SP – Application for Migration to Australia by a Partner. In Part A at question 2, he ticked the box that he was applying for a spouse visa. By ticking the box, he acknowledged the requirement which was written into the question under the answer box, including the text “Your relationship must be genuine and continuing”.

    iii)    In Part C – Your details of Form 47SP at Question 24, asking “Have you ever been in a de facto spouse relationship before?”, the applicant ticked “No”.  Quoc Hung Nguyen did not provide details of any such relationship or children. In Part D – Your family details of Form 47SP at Question 39, asking “YOUR CHILDREN”, he answered “N/A”.

    iv)   On 17 December 2010, the Department requested evidence to support the second stage permanent BS–801 Partner visa. Quoc Hung Nguyen and Thi Hue Dinh provided evidence and the visa was granted on 2 April 2011.

    v)    On 12 June 2013, the applicant lodged a Partner (Migrant) BC–100 visa application in Ho Chi Minh City, with Quoc Hung Nguyen as her sponsoring partner.  The application included a child of the relationship, Anh Thu NGUYEN (date of birth 10 August 2007), and later Mai Phuong NGUYEN (date of birth 14 June 2013).

    vi)   According to the birth certificate of Anh Thu, Quoc Hung Nguyen is her father and the applicant is her mother.  As part of this application, Quoc Hung Nguyen advised that he had separated from Thi Hue Dinh in June 2011 that is about two months of the grant of the permanent BS–801 Partner visa.

    vii)  Quoc Hung Nguyen advised that he had married Thi Thu Hang NGUYEN on 25 October 2012 and that he had a daughter with her in 2007. He provided the birth certificate for the child naming him as the father. The birth certificate is dated 2008. Quoc Hung Nguyen advised that he and Thi Thu Hang NGUYEN had a second child born on 14 June 2013.

12. In a Statutory Declaration dated 12 December 2017, Quoc Hung Nguyen stated:

    i)   He separated from the sponsoring partner Thi Hue DINH in June 2011. The child Anh Thu NGUYEN was born on 10 August 2007, without his knowledge. The child’s birth was first registered on 26 March 2008 and he was not named as the father, nor was he present in Vietnam at the time. He arrived in Australia on 21 March 2008. The child was born in Ha Noi.  The applicant’s town was Yen Bai and his town was Quang Ninh. His marriage to Thi Hue Dinh broke down when she discovered that he had a child because she could not accept or forgive. In September 2013, he undertook DNA testing to prove that the child was his. In September 2013, he obtained a formal order from the Department of Justice to enable him to be recognised as the father of Anh Thu NGUYEN, born on 10 August 2007. On 28 November 2013, an amended birth certificate was issued showing him to be the father of the child.

    ii)     When he lodged the Partner visa application in February 2009, he provided information that his marriage was genuine and ongoing, which he believed to be correct and true at the time. He correctly declared in Part C at question 24 that he had never been in a de facto spouse relationship or had any children. At that time he was not aware of the existence of Anh Thu NGUYEN and therefore he did not declare her existence.

    iii)    When he sponsored the applicant who lodged the application on 12 June 2013, they correctly declared the children. Although at that time he had not obtained the amended birth certificate (obtained on 28 November 2013), he had at the time known that Anh Thu NGUYEN was his child. He had obtained an order from the Department of Justice which required DNA testing. He took the necessary steps to amend the birth certificate for Anh Thu NGUYEN.

    iv)   He confirms that all the information that he has provided at relevant times was true and correct.

13. Quoc Hung Nguyen and the applicant provided a number of documents including statements in support from friends and family, Financial Report for Quoc Hung NGUYEN T/as Anderson Brothers for year ending 30 June 2018, and donation details.

14. In the course of the hearing, Quoc Hung Nguyen gave evidence that when he lodged the application for the Combined Spouse UK–820/BS– 801 Partner visa, sponsored by Thi Hue DINH, he did not know that he had a child. He stated that he met Thi Thu Hang NGUYEN in February 2005 when they were both studying at the same college. He said they were friends for some time but in about August 2006, romantic feelings developed and they engaged in sexual activities on two occasions namely on 28 October 2006, which was Vietnam’s Woman’s Day and on 26 November 2006. He stated that they were both in their twenties at the time and they were living away from their home towns but relying on their parents for support. He stated that in January 2007, the applicant told him that she was pregnant. He said he got scared and asked her to have a termination of pregnancy but she did not agree. He said he felt that his best option would be to run away and he did initially by going to his hometown which is approximately 200 km away from the university and later by coming to Australia in March 2008. He stated that he did not tell his parents or his friends about the pregnancy and he did not have any contact with the applicant after January 2007.

15. Quoc Hung Nguyen gave evidence that in February 2010, he returned to Vietnam to visit his family and he met with university friends, one of whom was living in the same town as the applicant. He stated it was that friend who told him about the daughter. He stated that he was shocked and he did not think that it could be his child. He stated that when he went to see the applicant, he noticed the young girl who was thin and had dark skin. He said he returned the following day and asked the applicant for DNA testing to prove that the child was his but she refused. He stated that he did not disclose the existence of the child prior to the visa grant because he was not sure that she was his. He stated around mid-March 2010, his former wife, Thi Hue DINH saw a photo of the child and they argued but he was still unsure that the child was his own. He stated that despite being uncertain about the child, he communicated with the applicant to ask about their welfare.

16. The Tribunal discussed with Quoc Hung Nguyen the information contained in his statutory declaration of 12 December 2017, namely that the child was conceived after a brief meeting and sexual encounter. The Tribunal noted that those assertions appear to contradict his oral evidence to the Tribunal that there were romantic feelings between the couple and that they engaged in sexual activities on two separate occasions. He responded that as far as he was concerned, three months is a short period of time.

17. The Tribunal discussed with the Quoc Hung Nguyen the birth certificates provided. He referred to the fact that the original birth certificate does not show the father’s identity which supports his claim that he did not know of the existence of the child. He reiterated that the birth certificate that was reissued on 28 November 2013 shows that he is the father of the child, subsequent to DNA confirmation and decision by the Director of the Justice Department on 19 September 2013.

18. The applicant gave evidence consistent with the applicant’s version of events.

    Is there non-compliance by the applicant in the way described in the s.107 notice?

19. The evidence before the Tribunal indicates that within two months of being granted a permanent partner visa in April 2011, Quoc Hung Nguyen’s relationship with the sponsoring partner ended. The Tribunal acknowledges that depending on other circumstances, this could potentially be an issue and it could raise doubts about the relationship being genuine and continuing. The applicant married Quoc Hung Nguyen on 25 October 2012, approximately 14 months after his first relationship ended. On its own, the Tribunal does not see this as being problematic or adverse. The evidence before the Tribunal is that Anh Thu Nguyen was born on 10 August 2007 and her birth was not disclosed when Quoc Hung Nguyen applied for the partner visa. The applicant and Quoc Hung Nguyen have provided explanations and although the Tribunal has some concerns about the truthfulness of the version of events, these concerns are not sufficient for the Tribunal to reach a finding to the required level of satisfaction that the applicant has provided incorrect information in the way described in the s. 107 notice.

20. The Tribunal is of the view that the explanations are not far-fetched; the evidence before the Tribunal is that both the applicant and Quoc Hung Nguyen were in their 20s at the time and were living in a culture that is conservative. The pregnancy occurred when they were unmarried and it is plausible Quoc Hung Nguyen became frightened and returned to his hometown and later to Australia, without maintaining contact with the applicant or knowing about the birth of the child. The Tribunal has concerns about the evidence that even after his return to Vietnam in 2010, Quoc Hung Nguyen still did not know that the child was his but those concerns need to be considered in the context of the evidence that the original birth certificate does not name him as the father but the subsequent one does after DNA confirmation. The Tribunal appreciates that it is likely that DNA testing was required by the Vietnamese authorities in order to name him as the father in the birth certificate, rather than being indicative or corroborative of the Quoc Hung Nguyen’s assertions that he needed the DNA testing to ensure that he is the father. What is undisputed however is that the original birth certificate does not name him as the father and this supports some of the claims.

21. The applicant and Quoc Hung Nguyen have provided statements from various people corroborating their evidence. The Tribunal appreciates the limitations of such evidence but has decided to give the statements some weight. The Tribunal found the applicant to be a credible witness who gave evidence in a manner which the Tribunal found persuasive.

22. The Tribunal acknowledges that whilst this is arguably more directly relevant to the exercise of discretion, it is important to mention that the applicant was granted the partner visa and the Department had knowledge of the circumstances relating to Quoc Hung Nguyen who was her sponsoring partner, which included the existence of the child.

23. Overall the Tribunal’s concerns are insufficient to reach findings that Quoc Hung Nguyen provided incorrect information about his first child and/or his relationship with the applicant, or that his relationship to Thi Hue DINH was not genuine and continuing.

24. In consideration of the evidence as a whole and for the above reasons, the Tribunal finds that there was no non-compliance by Quoc Hung Nguyen in the way described in the s.107 notice. It follows that the discretionary power to cancel his visa does not arise.  The Tribunal therefore concludes that the appropriate course of action is to set aside the decision relating to Quoc Hung Nguyen.

25. Pursuant to s.114 of the Act, if a decision made under s.109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled. The Tribunal concludes that the decision to cancel the applicant’s visa under s.140(2) should be set aside on the basis that Quoc Hung Nguyen’s visa is not cancelled.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 309 (Spouse (Provisional)) visa.

27. The Tribunal has no jurisdiction with respect to the other applicants.

    Antoinette Younes

    
    Senior Member

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)      purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)      giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)      visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.