Truong (Migration)

[2019] AATA 1598

Truong (Migration) [2019] AATA 1598 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nguyen Linda Truong

CASE NUMBER:  1819536

DIBP REFERENCE(S):  BCC2018/3978650

MEMBER:Kira Raif

DATE:15 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 115 (Remaining Relative) visa.

Statement made on 15 January 2019 at 7:27am

CATCHWORDS
MIGRATION – cancellation – Other Family (Migrant)(Class BO) visa – Subclass 115 (Remaining Relative) – consequential cancellation – evidence of academic achievement provided – evidence of settlement in Australia provided – best interests of child – visa cancelled as a result of mother’s conduct – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 109, 140
Migration Regulations 1994 (Cth)

CASES
COT15 v MIBP (No.1) [2015] FCAFC 190
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 to cancel the applicant’s Subclass 115 (Remaining Relative) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam born in August 2004. She was included in her mother’s application for the Remaining Relative visa and was granted that visa on 27 March 2013. In May 2018 the applicant’s mother, Ms Nguyen, was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that she did not comply with s.101 of the Act. Ms Nguyen’s visa was cancelled on 28 June 2018. The visa held by the applicant was cancelled on the same day under s.140(2) of the Act. Section 140(2) of the Act allows the Minister to cancel a visa if that person holds a visa only because another person holds a visa and that visa has been cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The applicant’s mother gave evidence on behalf of the applicant. 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 set aside.

   Is there a ground for cancellation?

4. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the visa because her mother was granted the visa. The visa held by the mother was cancelled in June 2018 and the Tribunal affirmed that decision on 17 December 2018.

5. The Tribunal finds that the visa held by the applicant’s mother (Ms Nguyen) was cancelled under s.109 of the Act. The Tribunal finds the applicant is a person to whom s.140(1) does not apply. The Tribunal further finds that the applicant is a person who held a visa only because Ms Nguyen held a visa. As Ms Nguyen’s visa has been cancelled under s.109, the Tribunal finds there are grounds for cancelling the applicant’s visa under s.140(2) of the Act.

   Should the visa be cancelled?

6. As the Tribunal has decided that there is a ground for cancelling the visa, it is necessary to consider whether the visa should be cancelled. Cancellation in this context is discretionary. In deciding whether to cancel the visa, the Tribunal has had regard to the considerations set out below. Whilst 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 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

7. The applicant was granted the visa as a member of the family unit of her mother, who claimed to be a remaining relative of an Australian relative. The purpose of the applicant’s visa is to live with her mother. As the mother’s visa has been cancelled, the Tribunal is of the view that the applicant is no longer able to fulfil the purpose of her travel to Australia.

   In her various written submissions to the Tribunal the applicant outlined the reasons why she needs to remain in Australia, including her academic achievements and difficulties in resettling in Vietnam. The applicant told the Tribunal that she hopes to stay in a developed country without interruptions to her study.

   The extent of compliance with visa conditions

8. The Tribunal is unaware of any non-compliance with visa conditions.

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

9. The applicant refers to her settlement in Australia, her school attendance and various activities. In her submission to the Tribunal the applicant provided copies of various awards and a scholarship she received at school and for other activities, as well as a number of supporting letters. The Tribunal acknowledges that evidence and accepts that the applicant is settled in Australia. The Tribunal accepts that a considerable degree of hardship may be caused as a result of the visa being cancelled.

10. The applicant’s mother suggested that the cancellation of the visa would cause psychological hardship to the applicant. She states that the applicant was crying a lot after receiving the cancellation letter. She would be stressed if she has to go to Vietnam and her study would be interrupted. The applicant subsequently provided to the Tribunal a medical report relating to her present condition. Dr Tran refers to the applicant suffering from severe depression, difficulties sleeping and eating, weight loss and crying.

11. The Tribunal accepts that the applicant has been living in Australia for a numbers of years and has spent her formative years in Australia. She attends an Australian school and is well settled in Australia. Although the Tribunal is of the view that the applicant will be able to attend school in Vietnam, the Tribunal accepts that her studies would be interrupted before the child settles in a school in Vietnam. Her evidence to the Tribunal is that her Vietnamese language skills are limited and that she is used to the Australian curriculum and would struggle in a Vietnamese school. The Tribunal accepts that removing the child from an Australian school and an Australian environment is likely to cause her a significant degree of hardship.

    Circumstances in which ground of cancellation arose

12. The cancellation occurred because the visa held by the applicant’s mother had been cancelled and the applicant held the visa only because her mother held the visa. There is no suggestion that the applicant had provided any incorrect answers in relation to her own migration application.

    Past and present conduct of the visa holder towards the department

13. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences

14. 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 further visa applications in Australia without the Minister’s intervention although she may be subject to an exclusion period in relation to some visas. The applicant may lose certain entitlements that she may have acquired as a permanent resident of Australia.

    Whether there would be consequential cancellations under s.140

15. The present cancellation is a consequential cancellation. There would be no consequential cancellations under s.140 if the present visa is cancelled.

    Whether any international obligations would be breached as a result of the cancellation

16. The applicant outlined a number of difficulties she would experience upon return to Vietnam. However it is not necessary for the Tribunal to determine whether these give rise to Australia’s non-refoulement obligations.

17. In COT15 v MIBP (No.1) [2015] FCAFC 190 at [38] the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa. The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application. As such, the Tribunal does not consider that the full assessment of the applicant’s protection visa is required for the purpose of the present decision. The Tribunal is mindful that the applicant is eligible to apply for the protection visa in Australia and have her claims assessed. The Tribunal finds that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

18. The applicant’s mother gave oral evidence to the Tribunal concerning the child’s best interests. Ms Nguyen stated that the applicant is used to the Australian environment and the Australian school system and it would be difficult for her to enter the school system in Vietnam because the curriculum is different and the applicant’s Vietnamese is limited. Ms Nguyen states that her daughter’s future would be ruined if she were to return to Vietnam. In the Tribunal’s view, the applicant will be able to attend a Vietnamese school and later university, although the Tribunal accepts that the change of the school environment and curricula may delay the child’s progress. Ms Nguyen told the Tribunal that her daughter does not speak Vietnamese, but the Tribunal does not accept that evidence, given that the applicant must communicate with her mother and grandparents in Vietnamese. Even if her Vietnamese is more limited at present, the Tribunal is of the view that she could improve her language skills if she were to live in Vietnam.

19. Ms Nguyen told the Tribunal that her daughter has her teachers and friends in Australia and she is used to the Australian environment and life in Australia. She is a good student at the top of her class. The Tribunal accepts that evidence.

20. Both the applicant and Ms Nguyen provided to the Tribunal a number of documents relating to the applicant, including school reports and awards and a number of statements in support. The Tribunal acknowledges that evidence and accepts that the applicant is well settled in Australia, attends Australian school and participates in various activities. The Tribunal acknowledges the applicant’s evidence that she would be humiliated by others if she were to return to Vietnam. The Tribunal accepts that the cancellation of the visa may have a detrimental effect on the applicant’s study and development generally.

21. The Tribunal is of the view that, normally, the best interests of a minor child require the child to live with her parents and neither of the applicant’s parents have Australian visas. Her mother’s visa has been cancelled and her father has never held an Australian visa. The applicant’s younger sister also lives in Vietnam. Thus, the applicant’s return to Vietnam would ensure the family can live together and the applicant would have the support of both of her parents.

22. However, the Tribunal also acknowledges that significant hardship would be caused to the applicant if her visa is cancelled and if she were required to leave Australia. This is because she has spent her formative years in Australia and in the Australian school system and she would be denied the opportunity to continue with her Australian education if she were to leave the country. The applicant’s and her mother’s evidence to the Tribunal is that the applicant travelled to Australia with her mother in September 2013 when she was nine years old. Her mother left the country almost immediately and the applicant was left in the care of her grandparents and an aunt. It is the extended family, and not the applicant’s parents, who assumed the daily care and control of the applicant until her mother returned to Australia some years later. The applicant’s evidence to the Tribunal is that she has a close relationship with her Australian relatives and the Tribunal accepts that evidence. The applicant also informed the Tribunal that if her mother is to leave Australia, her preference would be to stay in Australia with her grandparents who are willing and able to care for her, and to continue with her schooling in Australia. While the Tribunal would not normally consider it in the best interests of a minor child to be separated from her parents, in the particular circumstances of this case, the Tribunal notes that the decision to separate the applicant from her parents was made by the family and the applicant lived away from her parents for a number of years. In their post-hearing submissions to the Tribunal the applicant and her mother expressed their desire to continue that arrangement whereby the applicant would be cared for by her grandparents. The Tribunal notes that it is the grandparents, rather than the applicant’s parents, who have been her primary caregivers for a number of years after the applicant’s entry to Australia.

    Other relevant matters

23. The applicant told the Tribunal about the difficult situation the family would face. The applicant’s evidence is addressed elsewhere in this decision.

24. In her submission to the Tribunal of 30 October 2018 the applicant addressed the circumstances that led to the cancellation of the visa and whether there was non-compliance as described in the Notice. The Tribunal considers these submissions misguided because the applicant’s visa was cancelled under s.140 and the ground for cancellation arises because the visa held by the applicant’s mother was cancelled, not because the applicant herself may not have complied with the Act.

25. The applicant refers to her education in Australia and states that if she is required to leave the country, she would be excluded from applying for a further Student visa and would be behind other students of her own age from an education perspective. The applicant refers to the hardship that would be caused by the cancellation of the visa and the Tribunal accepts that such hardship would be caused.

26. The applicant’s representative refers to media reports about the migrant intake and states that the cancellation of the visa may serve the political purpose of cancelling a migrant intake. The representative submits that the applicant may be a “victim of the hard right policy”. The applicant’s visa has been cancelled because it was found that grounds for cancellation exist and any suggestion that either the delegate or the Tribunal are following some political objective is, with respect, lacking any foundation.

27. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the visa held by the applicant’s mother has been cancelled. However, the Tribunal has formed the view that the cancellation of the visa would cause significant hardship to the applicant, given the length of her stay and the extent of her settlement in Australia. The Tribunal places weight on the fact that the child has been living in Australia with her grandparents, rather than her parents, for a lengthy period and that it is the family’s preference for the child to remain in the care of her grandparents in Australia. The Tribunal is satisfied that the extended family in Australia are able to provide the necessary care to the applicant. Such arrangements need not lead to the separation of the applicant and her parents, should the applicant make the decision to return to Vietnam with her mother. The arrangements would however, provide a choice to the applicant and her family in deciding where the child is to reside. The family may decide that the child is to live in Australia with her grandparents, as she did in the past, or that she is to return to Vietnam. Such options would not be available to the applicant if her visa is cancelled.

28. The Tribunal places weight on the fact that the applicant has not herself provided any incorrect information to the Department. Her visa has been cancelled as a consequence of her mother’s conduct and not due to any action or wrong-doing by the applicant. In the Tribunal’s view, the significance of the hardship that would be caused by the cancellation in this particular case outweighs the factors favouring the cancellation.

29. In the particular circumstances of this case, where the Tribunal has formed the view that significant hardship would be caused to the applicant by the cancellation and where the applicant has an option of remaining with her grandparents in Australia, the Tribunal has decided that the decision to set aside the cancellation will enable the family to consider these options and determine where the child is to live.

30. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 115 (Remaining Relative) visa.

    Kira Raif
    Senior Member