Nguyen (Migration)

[2017] AATA 2819

Nguyen (Migration) [2017] AATA 2819 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Minh Diu Nguyen

CASE NUMBER:  1721948

DIBP REFERENCE(S):  BCC2017/2389758

MEMBER:Kira Raif

DATE:12 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 12 December 2017 at 1:19pm

CATCHWORDS
Migration – Cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Incorrect information in application – Contrived relationship – Applicant separated from sponsor and remarried shortly after grant of visa – Paternity of children – Financial hardship – Failure to obtain paternity test – Best interests of children

LEGISLATION
Migration Act 1958, ss 101, 107, 109
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam born in January 1981. She was granted the permanent partner visa in October 2012 and the Resident Return visa (RRV) in July 2017. On 6 July 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s.101 of the Act in relation to her partner visa. The applicant provided her response to the Notice and her visa was cancelled on 13 September 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 December 2017 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 by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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 Immigration and Border Protection (the Department) of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. 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. Section 107A provides that possible non-compliances in connection with a previous visa may be grounds for cancellation of the current visa.

6. In the present matter, the 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. Section 107A provides that possible non-compliances in connection with a previous visa may be grounds for cancellation of the current visa.

   Did the notice comply with the requirements in s.107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

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

9. The issue before the 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 s.101 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record, which contains the following information.

    a.The applicant made the application for a Partner Class UK visa on 24 September 2010. In response to question 22 on the application form 47SP the applicant stated that she had previously been married to Thanh Binh Vu and that their marriage started on 23 August 2005 and ended in divorce on 3 March 2010. The applicant stated there was one child to that relationship, Quang Minh Vu, born on 12 February 2006.

    b.The applicant referred to her fiancé/partner Mai Duy Minh Doan, stating they first met in August 2008 and began a married/de facto relationship in April 2010. The applicant stated they intended to maintain a lasting relationship and did not enter the relationship solely to gain permanent residence in Australia.

    c.The applicant signed a declaration that the information she supplied in the application was complete, correct and up to date.

    d.The applicant included with her application a statutory declaration dated 22 September 2010 in which she stated that she and her husband had a continuing relationship and that their marriage was genuine and continuing.

    e.The applicant included with her application a marriage certificate evidencing her marriage with Minh Duy Mai Doan, dated 10 April 2010, and a divorce certificate evidencing her divorce with Thanh Binh Vu, dated 3 March 2010.

    f.The applicant was granted the temporary partner visa in Subclass 820 on 15 November 2011. Her son Quang Minh Vu arrived in Australia as a holder of a Class TK Subclass 445 Dependent Child visa. The applicant presented a birth certificate relating to Quang Minh Vu and a birth certificate relating to the second child, Andy Doan, born on 6 December 2010 which identified Minh Duy Mai Doan as the father.

    g.The applicant submitted a statutory declaration dated 24 July 2012 in which she stated that she and her husband are in love and committed to the marriage. The applicant submitted Form 80 specifying her addresses in Vietnam and Australia. The applicant was granted a permanent Partner Subclass 801 visa on 25 October 2012.

    h.On 16 January 2015 the applicant made an application for citizenship with her son Quang Minh Vu as a dependent child. The applicant informed the Department about the birth of her third child Huyen Anh Nguyen on 25 February 2014.

    i.In April 2015 the applicant was requested to provide DNA test results for Andy Doan and Minh Duy Mai Doan because the Department was concerned that the father of Andy Doan was not Minh Duy Mai Doan but the applicant’s previous partner Thanh Binh Vu. In response, the applicant presented a birth certificate for her third child Huyen Anh Nguyen which did not have details of the father. The applicant advised that her marriage to Minh Duy Mai Doan broke down irretrievably and that she intended to apply for divorce. The applicant stated that she could not arrange DNA testing due to financial hardship.

    j.Departmental records show that the applicant’s previous partner Thanh Binh Vu applied for a partner visa in September 2011. His student visa had been cancelled for breach of conditions. Mr Vu was imprisoned in November 2014 and released in November 2015. He was invited to comment on adverse information relating to his partner visa and withdrew his application in March 2015.

    k.In November 2015 during an interview with the Department officer Mr Vu stated that he wished to apply for a partner visa on the basis of his relationship with his ex-wife and the mother of his children, the present applicant. Mr Vu stated that he wished to stay in Australia with his three children and for that reason he could not return to Vietnam. He was removed from Australia in February 2016.

    l.In April 2016 Mr Thanh Binh Vu applied for a contributory parent visa sponsored by his son Quang Minh Vu. The applicant acted as a sponsor in that application, as the child was a minor.

    m.The NOICC indicates that the applicant stated in her partner visa application that she first met Minh Duy Mai Doan in August 2008, the same month she separated from Thanh Binh Vu and within three months of her arrival in Australia. Her marriage to Minh Duy Mai Doan was within a month of the applicant divorcing Thanh Binh Vu and she separated from Minh Duy Mai Doan within three months of being granted the permanent partner visa.

    n.Departmental records show that when the applicant travelled offshore on several occasions, Minh Duy Mai Doan never travelled with her.

    o.The applicant submitted with her partner application an energy bill for an address in Longfield Street, Cabramatta, showing her name was accepted on 18 August 2010. In Form 80 the applicant stated she stopped living at Longfield Street, Cabramatta in April 2010. The applicant’s explanation is that it was a mistake made at her migration agent’s office.

11. The delegate formed the view that the applicant entered into a contrived relationship with Minh Duy Mai Doan solely for the purpose of achieving residence in Australia and that she provided incorrect information in that application concerning the nature of her relationship with the sponsor.

12. The applicant provided a written submission addressing the above in response to the NOICC. In her declaration sworn on 19 July 2017 and the declaration to the Tribunal of 4 December 2017 the applicant outlined the nature of her relationship with Mr Doan and restated that he is the father of her second child. She states that she and Mr Doan began separation under one roof in January 2013 but there were periods when they reconciled. They lived separately from September 2014. The applicant claims that she experienced financial hardship after her relationship ended and could not afford the DNA testing, noting that the citizenship application fees are lower than the DNA testing fees. The applicant claims she could not ask for Mr Doan’s help because she is unaware of his whereabouts. The applicant claims that the third child, born in February 2014, was a result of a ’one night affair’. That child was conceived during her separation from the sponsor from January 2013. The applicant claims her marriage to Mr Doan was at all times genuine and to the exclusion of all others.

13. In relation to her addresses, the applicant notes that the decision to grant the visa was not based on the information on Form 80, which was a ‘typographical error’. The Tribunal notes that if an incorrect answer has been given on the form, a ground for cancellation would arise whether or not the incorrect information formed the basis of a decision to grant the visa. In this case, the information about the applicant’s addresses, which was inconsistent between Form 80 and an energy bill which the applicant presented as evidence of cohabitation, may support a finding that the applicant was not living in the same household as the sponsor and the nature of the household was relevant to the decision to grant her the visa, as well as an assessment of the applicant’s credibility.

14. With respect to her trips to Vietnam, the applicant states that she made three trips between July 2012 and January 2017. The applicant states that in the first trip the sponsor did not travel with her due to the high cost and for the second and third trip in 2016 and 2017, her relationship with the sponsor had already ended.

15. With respect to Mr Vu’s interview, the applicant claims in her declaration that Mr Vu did not have an interpreter and she believes he referred to having an ‘ex-wife and HER children’ in Australia. The applicant refers to a misunderstanding due to the language barrier. The Tribunal finds that evidence unconvincing. The Department’s officers are very experienced in conducting such interviews and the Tribunal does not accept that the interview would have proceeded unless an assessment was made that Mr Vu was capable of meaningfully participating in such an interview. Mr Vu also had an opportunity to refuse to participate in the absence of an interpreter if he believed he was incapable of understanding questions and expressing himself. The Tribunal is mindful that Mr Vu initially entered Australia on a student visa, according to the information in the primary decision record, and the applicant’s evidence to the Tribunal is that he was undertaking a university course in Australia, which may suggest at least some level of English proficiency to enable him to engage in studies in Australia. He had been living in Australia for some years by the time of this interview. He had also spent about one year in prison, where he would have communicated in English. Therefore, the Tribunal does not accept the applicant’s explanation that Mr Vu’s English at the time of the interview was as poor as she claims, and the Tribunal does not accept that his reference to his three children with the applicant was due to his lack of English or a misunderstanding. The Tribunal is mindful that the ‘misunderstanding’ can be easily resolved through DNA testing.

16. The applicant also claims in her submissions to the delegate and the Tribunal that if she was in a relationship with Mr Vu, she could have sponsored him for a partner visa and not the contributory parent visa but that in itself is not convincing evidence that the relationship did not exist. There may have been any number of reasons why they chose a parent visa over a partner visa, including lack of supporting evidence for the partner visa, the ease of meeting visa criteria for one visa compared to the other, the speed of processing and the grant of a permanent parent visa rather than a temporary partner one.

17. The Tribunal acknowledges the statement from Mr Vu, submitted to the Tribunal, where he claims to have no relationship with the applicant. Given his earlier recorded evidence to the Department that he did have a relationship with the applicant, the Tribunal finds Mr Vu’s assertions, which are contradictory, unreliable and of little probative value. The Tribunal made several attempts throughout the hearing to contact Mr Vu but was unable to do so.

18. The Tribunal places considerable weight on the applicant’s refusal to facilitate DNA testing to confirm the paternity of her child. In her submissions to the delegate and the Tribunal the applicant refers to financial hardship which precludes DNA testing, noting she is a single mother of three children, but the Tribunal does not accept that explanation as the reason why the DNA test was not done. The Tribunal is mindful that the applicant has been able to find the funds to pay two application fees to this Tribunal in relation to her and her son’s visa cancellation matters and to acquire the services of a migration agent to assist with these applications. Such fees would be considerably higher than what would have been required for DNA testing. The applicant claims she borrows money from friends but it is not apparent that she could not borrow more funds (the cost of the paternity test would be around $1,000) to arrange the test, given its significance to her case. The delegate’s request for DNA testing was made in April 2015, two and a half years ago, and the Tribunal is not satisfied that in that period, while the applicant found the funds to deal with daily aspects of her life and her legal matters, she could not have found the amount for the paternity testing.

19. The Tribunal also notes that Mr Vu has made an application for a contributory parent visa in which the applicant acted as a sponsor. The fees associated with such an application are quite high. The Tribunal acknowledges the applicant’s evidence that she was not involved in the payment of the fees associated with the contributory parent visa and only acted as a sponsor, and Mr Vu’s evidence that he borrowed the funds to pay for that application, but the applicant’s evidence is that she and Mr Vu shared parental responsibilities and they appear to have some sort of relationship and communication. It would not be unreasonable, in the Tribunal’s view, for the applicant to seek financial support from Mr Vu to assist her with the matter, given the significant implications for her visa and Mr Vu’s own parent visa. The primary decision record refers to Mr Vu making a previous partner visa application which also involves a significant application fee. Again, if Mr Vu was able to find several thousands of dollars to make an application for a partner visa and about $50,000 required for the contributory parent visa, the Tribunal is not convinced that he would have been unable to find $1,000 required for paternity testing to assist the applicant with her cancellation matter.

20. The applicant’s evidence to the Tribunal is that Mr Vu could not find the funds to help her with DNA testing because he had already borrowed too much. The Tribunal finds that evidence utterly unconvincing. Firstly, there is little probative evidence from Mr Vu to support that claim. Secondly, the Tribunal is mindful that if the applicant does not hold a permanent visa, she may be unable to be the sponsor and Mr Vu would be unable to get his contributory parent visa. That is, the cancellation of the applicant’s visa would mean that Mr Vu cannot obtain his visa and the applicant’s evidence is that his application is ongoing, so that Mr Vu may still have an expectation of residing in Australia. In such circumstances, the Tribunal does not accept that Mr Vu would be unable to borrow what would be a relatively insignificant amount compared to what he has already borrowed.

21. The applicant also claims that she could not find Mr Doan to arrange paternity testing. However the Tribunal is mindful that the delegate first requested the applicant to prove paternity in mid-2015, nearly two and a half years earlier, and the applicant had ample time to make inquiries about Mr Doan’s whereabouts. The applicant presented no evidence of having made any attempt to locate him. The applicant’s evidence to the Tribunal is that she tried to call his number but could not get through and did nothing else to find Mr Doan. For example, she could have made inquiries with common friends or Mr Doan’s relatives or placed an ad in the Vietnamese newspaper. The applicant has not done any of that and, in the Tribunal’s view, she has not taken reasonable steps to locate Mr Doan. Her apparent indifference and lack of action to locate Mr Doan suggests the applicant was unwilling to arrange the paternity testing and that suggests that the applicant is well aware that Mr Doan is not the father of her second son.

22. The applicant would be well aware that her ability to prove Mr Doan as the father of the second child may be strong evidence that she and Mr Doan did have a committed relationship and may establish that there are no grounds for cancelling her visa. That is, proving the paternity of the child is quite significant, if not central, to the applicant’s ability to hold the permanent visa and the applicant would be well aware of this significance. In such circumstances, it is not unreasonable to expect that the applicant would make every effort to obtain the funds, including from relatives, friends, acquaintances or a loan, and to locate Mr Doan, to enable DNA testing. The Tribunal accepts that the applicant has limited funds and has a substantial debt (she provided evidence of credit card debt) but given the central significance of this test to her claims, the Tribunal is not satisfied that the applicant could not have made arrangements to find the funds to do the test and to confirm the paternity of her second child. The applicant’s refusal to do that offers strong evidence, in the Tribunal’s view, that the issue here is not the applicant’s claimed lack of funds but her knowledge that Mr Doan is not the father of the second son. That supports the Tribunal’s view that the applicant’s relationship with Mr Doan was not a genuine one, nor one to the exclusion of all others.

1. The applicant’s oral evidence to the Tribunal is that her ex-husband Mr Vu travelled to Australia on a student visa in March 2008. She came to Australia in May 2008 on a visitor visa to visit Mr Vu and her intention was to return to Vietnam. The applicant said that after she came to Australia, she found out that her husband was having an affair and she did not know what to do and she later divorced him. The Tribunal finds the applicant’s evidence implausible. If the applicant’s intention was to return to Vietnam, as she claims, there was no reason for her not to have done so, particularly once she found out that her husband was having an affair. There was no longer any reason for the applicant to remain in Australia, if she only came to Australia to visit Mr Vu and had the intention of returning to Vietnam as she claims. The applicant said that she met Mr Doan but her evidence is that although they were seeing each other, they did not commit to a relationship until early 2010. There was no reason for the applicant to remain in Australia beyond the expiry of her visitor visa in August 2008 and the Tribunal is not convinced that she was ‘sad’ and ‘did not know what to do’. The applicant would have been well aware of the need to hold a visa to stay in Australia. The Tribunal is not satisfied that the applicant ever had a genuine intention of returning to Vietnam and even though she claims she was ‘very sad’ about her husband’s affair, that should not have changed her intention of returning to Vietnam if she ever had that intention. Indeed, the applicant’s separation from Mr Vu should have acted as an impetus for her to return to Vietnam. The applicant told the Tribunal that her visitor visa expired after three months, around August 2008. The applicant’s decision to remain in Australia unlawfully for about two years offers strong evidence that the applicant’s intention was to remain in Australia, establish residence in Australia by any means and that she never planned to return to Vietnam at the expiry of her visitor visa as she now claims. The Tribunal is concerned that the applicant always had the intention of remaining in Australia by any means and she chose her relationship with Mr Doan because it gave her the opportunity to do that.

2. The Tribunal also considers it problematic that the applicant’s relationship with the sponsoring spouse lasted as long as it took her to be granted the partner visa. The information in the primary decision indicates that the applicant met Mr Doan at the same time she claims to have separated from Mr Vu. The applicant’s oral evidence to the Tribunal is that she travelled to Australia to visit Mr Vu and discovered that he had an affair, so she left Mr Vu and very soon afterwards met Mr Doan. Her relationship with Mr Doan ended within three months of being granted the permanent visa. The applicant told the Tribunal that they had a small child and had only one income and they had arguments which led to the breakdown but she agreed that these problems started well before she was granted the visa and, prior to the visa grant, did not lead to the break-up of the relationship. That is, the applicant claims to have travelled to Australia to visit her then husband but almost immediately after her entry to Australia the applicant’s relationship with her husband ended, she met her future husband, subsequently applied for the partner visa and as soon as she was granted that visa, separated from her sponsoring spouse. The timing of these relationships suggests that the applicant entered a relationship with Mr Doan to obtain a visa and that this relationship was never a genuine one. Rather, the applicant maintained a relationship with Mr Vu and it was always her intention to bring Mr Vu to Australia as her partner.

3. The applicant’s evidence to the Tribunal is that she maintained a relationship with Mr Vu for the sake of the child. She claims to have travelled to Vietnam and that Mr Vu saw their son and she is sponsoring Mr Vu for the contributory parent visa to enable contact between father and son. Yet, none of these considerations apply in relation to Mr Doan. The applicant claims they separated in January 2013, continued to live separately under one roof for several months until she found a job when she moved out. Since that time the applicant claims to have had no contact with Mr Doan. She suggested to the Tribunal he was angry with her about the third child but her own evidence is that child was conceived in mid-2013 after they had already separated and that pregnancy was clearly not the reason for the separation. Thus, while the applicant had gone to considerable lengths to maintain a relationship with Mr Vu for the sake of their common child, she has done nothing to maintain a relationship with Mr Doan despite claiming to have a common child with him as well. The applicant’s failure to maintain any relationship with Mr Doan supports the Tribunal view that the second child is not the child from that relationship and that the applicant has been untruthful about the nature of her relationship with Mr Doan.

4. The applicant’s evidence to the Tribunal is that she has never applied for child support from Mr Doan for their common son. She claims to be a single mother and impecunious, so there is no obvious reason why she would not wish to rely on child support. The applicant’s explanation to the Tribunal is that she was told by Centrelink she could apply for child support but she ‘did not want to’. In the applicant’s circumstances, when she claims to have no money and to rely on others for financial support, the applicant’s refusal to seek child support from Mr Doan is evidence, in the Tribunal’s view, that he is not the father of the child.

5. For all these reasons, the Tribunal has formed the view that the applicant has not been truthful about her relationship with Mr Doan. The Tribunal has formed the view that the applicant did not have a genuine spousal relationship with Mr Doan. The Tribunal finds that the applicant was not the spouse of Mr Doan and that she gave incorrect answers on the application for the partner visa when she claimed to be the spouse of Mr Doan. The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice. The Tribunal finds that s.107A applies.

   Should the visa be cancelled?

6. 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).

7. 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 Migration Regulations 1994.

   The correct information

8. The applicant claims in her submission to the delegate and the Tribunal that she had a genuine relationship with the sponsor and has a child from that relationship. The applicant told the Tribunal that while they were together, the sponsor had no other relationships. In the absence of DNA testing, the Tribunal is not satisfied that the sponsor is the father of the child. For the reasons stated above, the Tribunal has formed the view that the applicant has never had a genuine relationship with Mr Doan and that this relationship was orchestrated to enable the applicant to be granted a permanent visa. The relationship ended as soon as the applicant was granted the permanent visa and, despite the applicant claiming to have had a deeply loving and committed relationship, the applicant also claims that as soon as she was granted the permanent visa and the relationship ended, she has had no contact with Mr Doan and is unaware of his whereabouts.

   The content of the genuine document (if any)

9. This is not relevant in this case.

   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

10. An applicant’s eligibility to be granted a partner visa is based on the existence of a spousal relationship. The applicant claims to have been in a spousal relationship with Mr Doan and that such a relationship was genuine, mutually committed and to the exclusion of all others. The applicant was granted the visa after being assessed as being a spouse of the sponsor. The Tribunal has formed the view that the applicant never had such a relationship with Mr Doan. If such a relationship did not exist, the applicant was not entitled to be granted the partner visa. That is, the existence of a genuine relationship with Mr Doan was central to the decision to grant the visa to the applicant.

    The circumstances in which the non-compliance occurred

11. The Tribunal has formed the view that the applicant has fabricated the information about her relationship with Mr Doan for the purpose of obtaining the visa. The Tribunal has formed the view that such a relationship did not exist but the applicant claimed the existence of a mutually committed relationship with the sponsor and obtained a variety of documentary evidence concerning such a relationship. The Tribunal has formed the view that the applicant was well aware of the deception and took an active role in it.

    The present circumstances of the visa holder

12. The applicant referred to her present circumstances in her written response to the NOICC and her evidence to the Tribunal. The applicant claims she is settled in Australia and has stable employment and has integrated into the Australian community. She is used to life in Australia. The applicant presented evidence of her various activities and employment in Australia. The applicant said she attends Vinh Nghiem Temple weekly with her son to pray. Her two children live in Australia and attend school. The Tribunal accepts that evidence.

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

13. Nothing adverse is known about the applicant’s behaviour concerning her obligations under the Act.

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

14. According to the primary decision record, the applicant was living in Australia as an unlawful non-citizen between August 2008 and August 2010, for a period of two years. The applicant confirmed that in her oral evidence to the Tribunal.

    The time that has elapsed since the non-compliance

15. The application for the partner visa was made in September 2010. The applicant was granted the permanent visa in October 2012. More than seven years have passed since the application was made and since the non-compliance. 

    Any breaches of the law since the non-compliance and the seriousness of those breaches

16. The Tribunal is not aware of any other breaches of the law.

    Any contribution made by the holder to the community

17. In her submission to the Tribunal the applicant claims she is a loving mother and a person of good character. The Tribunal accepts the applicant may be a loving mother, although it is not entirely clear that this constitutes a contribution to the community. The Tribunal acknowledges the character references submitted to the Tribunal. The applicant refers to having ‘grave financial hardship’ and borrowing money from friends and receiving assistance from the temple to support her and the children.

18. In oral evidence the applicant referred to her part-time employment as a nail artist and the Tribunal accepts the applicant is employed and is paying taxes.

19. 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.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

20. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although she may be subject to an exclusion period. There is no suggestion that the applicant will be indefinitely detained. The applicant is a sponsor in Mr Vu’s parent visa application and her evidence to the Tribunal is that his application is ongoing. If the applicant does not hold a permanent visa, she may not meet the sponsorship requirements.

    Whether there would be consequential cancellations under s.140

21. The visa held by the applicant’s eldest child has been cancelled under s.109 of the Act. There are no persons whose visas would be subject to consequential cancellation.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

22. There is no evidence, and the applicant does not claim, that she would be subjected to any harm or persecution if she were to return to Vietnam. On the evidence before it, the Tribunal is not satisfied that Australia has any protection obligations towards the applicant. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of visa cancellation.

23. In her submission to the delegate and the Tribunal the applicant claims that she has three young children, aged between 11 and three, who have only lived in Australia and who are dependent on her. Two of the children are Australian citizens. The eldest son’s visa has been cancelled but if that visa is reinstated, the son will be an Australian citizen. The Tribunal acknowledges that the two younger children are Australian citizens although it is incorrect to state that they have only lived in Australia. The primary decision indicates that they have been living outside of Australia since May 2016 (for about a year and a half by the time of the primary decision) and the applicant confirmed in her oral evidence to the Tribunal that the second child has returned to Australia while her daughter is in Vietnam.

24. The applicant argues in her submission to the Tribunal that it is not in the best interests of the children to separate the children from their father. The Tribunal considers that to be an odd statement. Putting aside the Tribunal’s concerns about the paternity of the second child, the applicant’s own evidence is that she is not aware of Mr Doan’s whereabouts, has not had any contact with him for a number of years and that her second son does not have contact with his father. The applicant made little effort to locate Mr Doan and to re-establish her son’s relationship with the father. That is, the second child has no contact with the father and there appears to be little prospect of that contact as the applicant appears to be entirely disinterested in such contact. While the applicant suggests it is not in his best interest to sever the possibility of future contact, such possibility is not enough to establish that the child’s best interests are to be in Australia in the circumstances where the child has no contact with the father and no evidence has been presented that any steps had been taken to establish such contact or that there is a genuine intention to do so.

25. With respect to her daughter, the applicant said she had a ‘one night stand’ with the child’s father. The applicant said the father lives in Australia but she is not sure whether he is a permanent resident or an Australian citizen and the daughter was granted Australian citizenship because of her residence status. There is no suggestion that this child has any contact with the father or that there is any intention to establish such contact.

26. The Tribunal notes that the only child to have any contact with his father is the oldest son and his father is Mr Vu who lives in Vietnam. If the applicant’s aim is to maintain the family unity and to enable contact of her children with their fathers, it appears that this would be best served by the family living in Vietnam since Mr Vu is the only father to have any contact with his child.

27. The applicant said two of the children were born in Australia and they have all lived in Australia for a long time and do not know any other country and cannot live anywhere else. As noted elsewhere, that is not the case since all three children have spent time in Vietnam. The eldest child was granted the visa after the applicant’s temporary visa was issued in 2011. The second child spent two years in Vietnam and the youngest child remains in Vietnam to date. All three children would be familiar with life in Vietnam, would have developed some language skills and may well be used to life in Vietnam. The applicant made the decision to send her children to Vietnam to stay with her parents, which would suggest that the applicant determined that the children’s best interests would not be affected if the children were to live outside of Australia. The applicant’s evidence is that she only wanted the children to stay in Vietnam for a short time but the Tribunal does not consider up to two years’ residence in another country to be a short period. Importantly, there is no evidence that during their residence in Vietnam, the children had experienced any hardship, even though the applicant claims the living standards in Vietnam are not the same as in Australia.

28. The Tribunal is of the view that at their young age, the children will have no difficulty adapting to a new country, particularly as all three children have already lived in Vietnam and the youngest one still lives in Vietnam. In the case of the eldest child, living outside of Australia would enable him to live with both parents.

29. The applicant claims that the children would face difficulty getting household registration in Vietnam and that they may lose the Australian citizenship because Vietnam does not allow dual citizenship. The applicant provided an extract from the Vietnamese citizenship laws which indicates dual citizenship is not permitted. In her submission to the Tribunal of 7 December 2017 the applicant argues that the two younger children will experience ‘grave hardship’ acquiring Vietnamese nationality although the Tribunal notes that the extract from what appears to be Vietnamese nationality law which the applicant presented to  the Tribunal does not appear to relate to minor children. Nevertheless, the Tribunal is prepared to accept, despite the limited evidence, that the children may be unable to maintain dual citizenship in Vietnam but it may be possible for them to give up their Australian citizenship and maintain the Vietnamese citizenship, with a permanent household registration, and reacquire the Australian citizenship by descent when they decide to return to Australia in the future. The Tribunal does not accept the children will be denied household registration if that occurs. Alternatively, the children may be able to maintain the Australian citizenship and renew their Vietnamese residence status every six months, as the applicant suggested they would need to do. The Tribunal places weight on the fact that despite the claimed difficulties of doing that, the applicant made the decision to send her children to Vietnam, they had been living in Vietnam for some time and the applicant has not satisfied the Tribunal that they have experienced undue hardship, discrimination or inability to access various services during their residence in Vietnam. The Tribunal is not satisfied they would experience such hardship in the future.

1. The applicant claims that she wants her children to be educated in Australia and that they have a ‘right to be raised in the Australian community’. The Tribunal is mindful that it is not uncommon for people to take up residence in different countries irrespective of their formal citizenship. That is, the fact that two of the children are Australian citizens does not necessarily establish that it is in their best interest to be in Australia.

2. Overall, the Tribunal does not accept that the children would be adversely affected by the cancellation of the applicant’s visa. The Tribunal does not consider that the best interests of the children require that the visa not be cancelled.

   Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

3. According to the primary decision record, the applicant made an application for Australian citizenship with her eldest son. That application has not been determined, and if the applicant’s visa is cancelled, the applicant is unlikely to be granted the Australian citizenship. As noted above, if the applicant is not the holder of a permanent visa, she may be ineligible to sponsor Mr Vu.

4. As for hardship, the applicant told the Tribunal that she and the children are used to living in Australia and the Tribunal accepts that all family members had spent considerable time in Australia and may be used to life in Australia, although the Tribunal is also mindful that all of the children had also lived in Vietnam. The applicant’s parents live in Vietnam. The applicant claims they are too old and unable to help; however the applicant made the decision that her parents are capable of looking after a young child and they looked after two young children previously, so the Tribunal does not accept they are too old or incapable of supporting the applicant.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant gave incorrect answers on the application form when she claimed to have been the spouse and in a genuine relationship with Mr Doan. The Tribunal has formed the view that such a relationship did not exist and that the relationship was arranged to enable the applicant to obtain permanent residence. The Tribunal has found that there are grounds for cancelling the applicant’s visa.

6. The Tribunal acknowledges that over seven years have passed since the application was made. The Tribunal accepts that the applicant is well settled in Australia and has been living in Australia for many years and that her children have also lived in Australia and hold Australian citizenship. The Tribunal accepts that a degree of hardship may be caused if the visa is cancelled as that may mean that the entirely family would return to Vietnam, although the Tribunal does not accept the applicant’s evidence that the children will be denied household registration or access to services because of their Australian citizenship status. The Tribunal has formed the view that the best interests of the children will not be adversely affected by the cancellation of the visa and the family’s return to Vietnam may allow the eldest child to be reunited with both parents, while the two younger children will not be adversely affected by being separated from their fathers because they have no contact, and no relationship, with their fathers.

7. The Tribunal has formed the view that the applicant has not been truthful with the Department about her relationship with Mr Doan and that relationship was never a genuine one. The Tribunal has formed the view that the applicant travelled to Australia for the purpose of obtaining the Australian residence and within a short time of entering Australia, she separated from Mr Vu, and both she and Mr Vu found other partners and sought partner visas. These matters suggest that the circumstances of the break-up of the applicant’s relationship with Mr Vu and her relationship with Mr Doan – which ended as soon as the visa was granted – were arranged to enable the applicant to remain in Australia. The Tribunal has formed the view that the correct information is that the applicant was never in a genuine spousal relationship with Mr Doan. The Tribunal considers it significant that if the correct information were known, the applicant may not have been entitled to the grant of the partner visa, particularly since the Tribunal is not satisfied that her second son is the child from her relationship with Mr Doan. In the Tribunal’s view, that factor outweighs other considerations.

8. Considering these circumstances as a whole, the Tribunal has formed the view that the visa should be cancelled.

   Conclusion

9. The 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, the Tribunal concludes that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

    Kira Raif
    Senior Member