Truong (Migration)

[2022] AATA 4254

Truong (Migration) [2022] AATA 4254 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thach Van Anh Truong

CASE NUMBER:  2013222

DIBP REFERENCE(S):  BCC2018/1676244

MEMBER:Michael Cooke

DATE:3 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 03 November 2022 at 2:31pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa – applicant provided false and misleading information about her relationship with Mr Nguyen – reason the applicant was cancelled was because of her husband’s cancellation – an Australian citizen son – medical condition of the child – the child’s best interests –decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 359

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 on 24 September 2019 to cancel the applicant’s Subclass 820 Partner (Temporary) (Class UK) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that Section 140(2) of the Migration Act 1958 (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.

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

4. The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal for reconsideration. The basis for the remittal was that the Tribunal failed to put information to the applicant pursuant to s 359A or 359AA of the Migration Act 1958 (Cth).

5. The applicant appeared before the Tribunal on 12 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Mr Hong An Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. The applicant through he representative has forwarded additional information to the Tribunal following the hearing. This is composed of the following:

   ·A submission addressing the case

   ·A letter from Dr Theresa Ho, Consultant Paediatrician; and

   ·A statutory declaration from Ms Hoang Co Thuy Pham (“Ms Pham”).

8. The submission reads as follows:

   We submit that the updated medical advice letter from Dr Ho, who is a consultant paediatrician and specialist whom the Applicant was referred to by her family doctor, Dr Dinh Cuong Le, provides clear and sufficient detail in relation to Jayden’s current physical health and care needs.

   Importantly, Dr Ho’s letter confirms Jayden’s frequent exacerbations of asthma, persistent nasal congestion and rhinorrhoea affecting his sleep, and his ongoing atopic dermatitis and skin issues. Dr Ho’s letter also makes recommendation for medication and treatment, as well as indication that she will monitor and review Jayden’s progress in due course.

   Unfortunately, Dr Ho has indicated directly to the Applicant that she is unable to comment on the consequences or implications of Jayden’s removal from Australia and return to Vietnam, as she is not a country specialist who would have the sufficient and relevant expertise to comment on the living conditions in Vietnam. We trust, however, that the Presiding Member will nonetheless consider Dr Ho’s letter and specialist medical advice with appropriate and significant weight in determining the relevant matters to this review.

   We further submit that the statutory declaration from Ms Pham confirms that the Applicant did indeed reside at Unit 11, 25 Pevensey St, Canley Vale NSW 2166 upon her arrival in Australia. We note that Ms Pham has resided at this address for approximately 10 years, including during the Applicant’s arrival and stay in Australia to the present. Ms Pham’s statutory declaration attests that the Applicant did indeed reside at this address when she first arrived in Australia for several weeks.

   We respectfully request that the Presiding Member consider this information provided within Ms Pham’s statutory declaration with appropriate significance and seriousness.

   We submit that the evidence and information provided by the Applicant sufficiently clarify the issues that arose at hearing that were prescribed by the Presiding Member. We note that, until a letter or formal invitation to comment or respond to information under section 359A of the Act is issued, the Applicant will be unable to provide any comment on information alluded to by the Presiding Member at hearing.

9. A further submission from the applicant contained the following information:

   We further submit that the statutory declaration from Ms Pham confirms that the Applicant did indeed reside at Unit 11, 25 Pevensey St, Canley Vale NSW 2166 upon her arrival in Australia. We note that Ms Pham has resided at this address for approximately 10 years, including during the Applicant’s arrival and stay in Australia to the present. Ms Pham’s statutory declaration attests that the Applicant did indeed reside at this address when she first arrived in Australia for several weeks.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant’s visa cancellation should be affirmed.

    The Hearing

12. The Tribunal explained why it had refused to postpone the hearing when requested. The Tribunal noted that the applicant’s sponsor was also present. The Tribunal identified that the hearing date at Court for the matter involving the applicant’s sponsoring partner had not been given a fixed date. The Tribunal then alerted the parties that it intended to explain why the applicant was successful in her appeal. The Court had indicated that the decision of the previous Tribunal was affected by jurisdictional error as the Tribunal failed to put information to the applicant pursuant to ss.359A/359AA of the Act. In particular, the Tribunal had before it information which was not put to the applicant that being AUSTRAC records and evidence from the applicant’s Partner visa application regarding her residential addresses and dates of her relationship.

13. The Tribunal then explained how an applicant was entitled to procedural fairness and had to have the opportunity to contradict adverse information. This could be written comment after the hearing or comment during the hearing. The Court said that the Tribunal (separately constituted) had not done so. The previous Tribunal claimed that the applicant made statements that were not truthful and then used this finding to affirm her visa cancellation based on her claimed untruthfulness and poor credibility. Therefore, the Court found this to be jurisdictional error. Hence, the applicant won her Court case, and the case was now back at the Tribunal for further review.

14. The Tribunal then alerted her that it wished to talk about her husband. He had had his visa cancelled and, therefore, she was cancelled as well. For a Partner visa she required a citizen or permanent resident as a sponsor. As her sponsoring partner’s visa was cancelled, he was, therefore, no longer a permanent resident and her Partner visa was consequentially cancelled.

15. The Tribunal then addressed the witness sponsor and the applicant’s representative. The Tribunal outlined the Ministerial mission statement (“fair, just, economical and quick”) regarding the Tribunal. Due to there being no immediate Court appeal date for the sponsor’s matter, the Tribunal had decided to proceed forthwith with the applicant’s case.

16. The Tribunal asked the applicant did she know why the Department wanted to cancel her visa. Did she have any ideas? Had she thought about the issue?  Did she have any important new information? The applicant said she did not understand the question, so the Tribunal repeated and elaborated on its question.

17. The applicant replied that the only thing she wanted was an opportunity for their family to stay with her son, Jayden, so that he could grow up and be educated in Australia. Everything was totally different in Vietnam. Jayden would not have the ability to develop like he would in Australia. From the evidence of his trips with her to Vietnam he had had more and severe attacks than when he was in Australia. She was worried if he had to return.

18. The Tribunal acknowledged her concern and added that Jayden was an Australian citizen. She informed that he had his passport with them. Jayden had eczema and asthma. She indicated that Jayden had visited a specialist who said that Australia was a better place for Jayden as the air and water were purer. He had to take medication and apply a cream to his skin. The representative indicated the parties could provide a doctor’s report.

19. The Tribunal indicated it wished to ask for a specialist’s report about his treatment regime and a statement about his complaints which addressed the impact of any potential return to Vietnam. The sponsor commented that he had lodged a specialist’s report in which an opinion was made on Jayden’s maladies and opinion on a possible return to Vietnam. The Tribunal insisted it would like a current report.

20. The Tribunal addressed the issue of Jayden even though he was not the subject of the review. It stressed that as an Australian citizen he was not part of the review. The parties confirmed he would need a visa to enter Vietnam. The Tribunal then addressed the issue of the Covenant on the Rights of the Child and read from it indicating it was the primary consideration. At the same time the Tribunal noted that the Covenant discouraged family separation.

21. The Tribunal reiterated that the delegate cancelled her visa but in the Tribunal’s review the decision to affirm or set aside the cancellation was discretionary. The Tribunal would have to consider primary and secondary considerations. Jayden was a primary consideration. There was also the issue of a potential return to Vietnam and the COVID pandemic. The Tribunal observed that Vietnam was not a country empty of medical care. It had various social welfare schemes introduced in the 1990s which covered a large section of the population. Saying that though there were complaints about the cost involved especially in situation like asthma that required constant care. Jayden was a primary consideration.

22. The Tribunal noted their claims that Jayden’s health would be impugned by a return to Vietnam. The Tribunal put it to the parties that he could not look after himself so in such a situation possibly his best interest might be to return to Vietnam with his parents and be nurtured by them. The Tribunal suggested Jayden would inevitably be its primary consideration in deciding the review. However, there were other matters it now wished to address. Jayden might be better as a young child living in Vietnam with his loving parents.

23. The Tribunal then explained that the applicant had been cancelled directly because her husband had been cancelled. But the decision the Tribunal makes whether to affirm the cancellation or not was discretionary. However, the Tribunal was also concerned that the issues in the sponsor’s cancellation would impact its review of her case. The Tribunal in its review had to consider everything that was before it. The Tribunal (separately constituted) had adverse information which the Department had discovered from its investigation of the sponsor and applicant. However, this information had not been properly disclosed to her and the significance properly explained. The Tribunal was going to send the applicant a s.359A Invitation in a formal letter explaining in detail the adverse information and its significance to the review. The applicant’s representative could also use the opportunity to submit the medical report.

24. The Tribunal noted the specific references made by the Court in its decision and that was why it would act to correct any previous error via a s.359A letter. The Tribunal wished to make sure she received procedural fairness. The information to be addressed disclosed a prior relationship between the parties. It contradicted information the applicant made in her application and that she and her sponsor had presented himself to the Department. The applicant was aware of the information, but the Tribunal wished to properly outline the significance of it to her.

25. The Tribunal reaffirmed that the reason the applicant was cancelled was because of her husband’s cancellation.

26. Section 140(2) of the Migration Act 1958 (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.

27. Examples of persons whose visas may be cancelled under s.140(2) include visa holders who were sponsored by a person whose visa is cancelled (for example, Prospective Marriage, Partner and other family visa holders) and visa holders who satisfy a criterion that involves another visa holder.

    Grounds:

28. Ms Truong is a national of Vietnam. On 19 January 2017, Ms Truong was granted a Partner (Temporary) (Class UK) visa. The application for the visa was sponsored by Mr Nguyen, the applicant’s sponsoring partner. On 24 September 2019, Mr Nguyen’s visa was cancelled. The Tribunal is satisfied that there is a ground for cancellation under s.140(2) of the Act.

    Assessment of whether the visa should be cancelled:

29. In deciding whether to cancel the visa the Tribunal considered the following matters:

    ·    Purpose of the applicant’s travel to and stay in Australia

30. The applicant initially arrived in Australia on 26 August 2013 on a Student (Subclass 573) visa to undertake studies in Australia as an international student. On 28 January 2016 her Student visa was cancelled under section 116(1)(b) of the Act for not meeting the requirements of condition 8202 because she did not maintain enrolment in a registered course of study.

31. On 8 December 2015 the applicant applied for a Combined Partner (Subclass 820/801) visa sponsored by her husband, Hong An Nguyen. On 19 January 2017 the applicant was granted an initial Partner (Subclass 820) visa.

32. The purpose of the applicant’s stay in Australia was marriage to her husband and because of her child Jayden Hong Nguyen (DOB 13 October 2015) - who is an Australian citizen as he was born when his father was still a permanent resident. The applicant was granted her visa because Mr Nguyen had been granted a permanent Partner visa (Subclass 801) and, thus, was an eligible sponsor.

33. The Tribunal gives this consideration some favourable weight against cancellation.

    ·The extent of compliance with visa conditions

34. The Tribunal observes that there are no conditions imposed on the applicant’s Partner visa. However, as noted above her Student visa was cancelled because she did not comply with condition 8202 imposed on her Student visa.

35. The Tribunal gives this consideration minimal favourable weight against cancelling her visa.

    ·The degree of hardship that may be caused to the visa holder and any family members

36. As noted above, the applicant initially arrived in Australia on 26 August 2013 and commenced residing with Mr Hong An Nguyen - her husband. Currently, her family unit comprises him and their young son, Jayden. Information provided by Mr Nguyen to the Department indicates that Jayden is enrolled at day care and pre-school. Mr Nguyen has also provided information relating to Jayden’s medical conditions which (the Tribunal is informed) are bronchial asthma and eczema.

37. Mr Nguyen informed the Tribunal (separately constituted) that he runs a small business. As a result of the Coronavirus pandemic, he is unable to obtain supplies from China. He has been working as a driver taking people to and from the airport during the pandemic. He informed he also offers a mobile telephone repair service.

38. He informed that in 2015, he purchased a property for $567,000. Because of ongoing visa issues and legal services fees of $10,000 or $12,000 he sold the property for $630,000. After the bank discharged the loan, he had $190,000 and now has $40,000 in the bank. He currently lives in an apartment in Cabramatta and pays $310 rent per week. In 2017/2018 the sponsor’s and Ms Truong’s combined income was $45,000.

39. The applicant combines taking care of the child, assisting the sponsor in his business and working as a nail technician. Ms Truong told the Tribunal (separately constituted) that she wanted to continue living in Australia with Mr Nguyen and their child and to build their lives together. Mr Nguyen operates a small business in which he works most days while the applicant provides care for Jayden. Mr Nguyen purchased a property in 2015 and had ongoing financial re-payment obligations exceeding AUD $2,000.00 per month. Apparently, he owed over AUD $400,000.00 on his mortgage – he informs.

40. The Tribunal considers the applicant has spent a considerable period of time in Australia and has significant ties to Australia. Furthermore, the Tribunal concludes from the information before it that the visa cancellation would cause significant financial and personal hardship to the applicant and her son.

41. The Tribunal gives this consideration heavy favourable weight against cancellation.

    ·The circumstances in which the ground for cancellation arose

42. The information before the Tribunal indicates that the applicant provided false and misleading information about her relationship with Mr Nguyen. For instance, she provided a statutory declaration dated 23 November 2015 in which she stated that she and Mr Nguyen were friends since high school. She recounted how they met again by chance in August 2014 at Bankstown - after she arrived in Australia to study. The applicant and her sponsor then moved in together in October 2014. They later married on 21 August 2015 and their son, Jayden, was born on 13 October 2015.

43. This claim by the applicant was problematic as the Department presented evidence which showed that her husband (Mr Nguyen) had begun sending money to the applicant in Vietnam in March of 2013. The money transactions, importantly, then finished just before her arrival in Australia. Apparently, from July 2013 to May 2014, Mr Nguyen had also sent money to the applicant’s stepfather. What made this problem worse was a claim made by the applicant’s husband to the Department in which he claimed to have continued in a partner relationship with his ex-partner, (Ms Tran) until April of 2014.

44. It appears that the applicant’s sponsoring partner had previously lived at 37 Pringle Ave from 2012. The applicant, coincidentally, declared living at 37 Pringle Ave from her arrival in Australia in August 2013 and onwards.

45. The applicant has recently provided the Tribunal with a statutory declaration from a Ms Pham which confirms that the applicant actually resided at Unit 11, 25 Pevensey St, Canley Vale NSW 2166 upon her arrival in Australia. The Tribunal is informed Ms Pham has resided at this address for approximately 10 years, including during the applicant’s arrival and stay in Australia - until the present. Ms Pham’s statutory declaration attests that the applicant did indeed reside at this address when she first arrived in Australia for several weeks prior to moving.

46. The Tribunal has seen this recent information but finds that this information has surfaced many years ‘after the event’ to bolster the applicant’s case and is aimed at contradicting the applicant’s earlier claim in the visa application that she was living at 37 Pringle Ave from her arrival in Australia in August 2013 onwards. Therefore, the Tribunal is tasked to decide which evidence is preferable. Evidence provided with the application or evidence submitted many years later in contradiction of the earlier information.

1. Evidence presented to the applicant by the (previously constituted) Tribunal indicates her husband’s Resident Return visa (Subclass 155) was cancelled under section 109 of the Act. This was because the Department was satisfied that there was non-compliance in association with the grant of his previously held Subclass 820/801 Partner visa. Therefore, the applicant has, resultingly, been considered for cancellation under section 140(2) of the Act.

2. The Tribunal acknowledges that the applicant’s visa was granted because her husband was granted a permanent residency visa. He became eligible to sponsor her for her Partner visa. At the same time, it appears she was complicit in his immigration malfeasance.

3. The Tribunal gives this consideration significant weight in favour of cancellation.

   ·The applicant’s past and present behaviour towards the Department

4. Departmental records (found in the delegate’s decision submitted to the Tribunal) indicate that the applicant did not engage with the Department in relation to her Student visa cancellation in 2016.

5. There is no additional information before the Tribunal to suggest she has been uncooperative with the Department or Departmental staff.

6. However, the Tribunal is of the view that her past adverse visa behaviour must be acknowledged.

7. The Tribunal give this consideration minimal weight in favour of cancellation.

   ·Legal consequences of a decision to cancel the visa

8. The Tribunal finds that, were the visa cancellation to be affirmed, the applicant would become an unlawful non-citizen. She would be liable for detention under section 189 and removal under section 198 of the Act if she did not voluntarily depart Australia and continued to remain an unlawful non-citizen by not resolving her status.

9. The Tribunal recognises that the applicant will have the option to apply for a Bridging E (Subclass 050) visa which may allow her to remain lawfully in Australia in order to finalise any outstanding matters or make departure arrangements.

10. All the above circumstances are mandatory legal consequences of a visa cancellation.

11. The Tribunal gives this consideration significant favourable weight against cancellation.

    ·Australia’s international obligations

12. The Tribunal has considered article 3.1 of the Convention on the Rights of the Child (CRC) which states that the rights of the child is a primary consideration. At the same time the Tribunal has also considered the family unity principles under International Covenant on Civil and Political Rights (ICCPR).

13. The applicant’s son, Jayden is an Australian citizen. He is very young and relies on his parents’ support. His father has stated and provided comprehensive medical evidence to the Department and Tribunal regarding Jayden’s health. This information indicates he requires medical support for his health issues. Mr Nguyen has stated to a (separately constituted) Tribunal that Jayden has lived in Australia since birth and, in his opinion, it would not be in his best interests to re-locate to Vietnam as an Australian citizen.

14. In letters dated January 2019 and August 2019 submitted to the Tribunal (separately constituted), a general practitioner stated the following: the applicant’s child suffers from bronchial asthma and eczema. It is in the child’s best interest that he remains in Australia with his parents because the Australian health system can offer him benefits that the Vietnamese health system cannot. The child needs the ongoing support of his parents. In 2020, the practitioner stated the following: the child suffers vitamin deficiency, bronchial asthma, dermatitis and sometimes respiratory tract infection. It was claimed that he has suffered nightmares brought on when he and his parents were caught in their car in flooding on 10 February 2020. A letter from a long day care & preschool entity dated 14 February 2020

15. The applicant has given evidence to the Tribunal (separately constituted) that their son was four years old and suffering from asthma and eczema and needed a lot of care from both parents. She claims that Jayden wakes up five to seven times a night crying. He attends day care three days a week from 8:00am to 5:00pm. She insists that the child is an Australian citizen and has a right to remain in Australia and enjoy all the benefits of the country. It is not an option for the child to go to Vietnam, she has claimed, when he has spent four years growing up in Australia.

16. The Tribunal has received more contemporary information from Dr Ho regarding Jayden as follows:

    Dear Dr Le,

    Thank you for asking me to review Jayden, a 5 years old boy with:

    - Frequent asthma symptoms

    -Persistent allergic rhinitis

    - Persistent atopic dermatitis

    Medication: - Flixotide Junior 2 puffs twice/day and inhaled Salbutamol 6 puffs PRN

    - Zyrtec PRN

    Mr Nguyen reports that Jayden is still having asthma symptoms with wheezing and SOB every 3-4 weeks and thus requires Salbutomol puffers for 24-48 hours with each flare. He continues taking Flixotide which improves his exercise induced symptoms. The trigger appears to be weather changes.

    Jayden has persistent nasal congestion and rhinorrhoea at night time which has affected his sleep.

    He has not used any nasal spray or oral antihistamine.

    Jayden also suffers from persistent atopic dermatitis that affects his face and limbs. He requires regular application of topical steroid as well as moisturisers. No obvious trigger is explained for his eczema. Jayden is recommended for a Skin Prick test to identify the allergens but the family cannot afford it.

    Jayden started Kindergarten this year and has settled in well.

    Clinically Jayden had occasional cough but was not in any respiratory distress. His PR was 92-96 beats/minute. His weight was 17.0kg (>10th percentile) and height was L07cm (<25'h per centile). His nose was quite congested today. His skin was generally dry and there were scattered scratch marks.

    His CVS exanimation was normal. His chest was clear.

    My impression is Jayden still has frequent exacerbations of asthma that requires the preventer. He also has persistent allergic rhinitis which may trigger his asthma symptoms.

    My recommendations:

    - Jayden needs to stay on Flixotide Junior 2 puffs twice/day. He needs to use inhaled Salbumatol PRN.

    Jayden will benefit from a Skin Prick test to identify allergens that may explain for his persistent eczema and allergic rhinitis. I also advised Zyrtec for Jayden to relieve his rhinorrhoea and flares of eczema.

    I am planning to review Jayden in 4 weeks time to monitor his progress.

17. It can readily be seen that if the applicant’s visa were cancelled, her immigration status would be like that of her husband. In that situation there would be no family separation as Jayden is a very young child. However, if the applicant’s visa were not cancelled, she would continue to hold her Partner visa while at the same time her husband would not. This possibility could create the potential of family separation. However, in the alternative, the applicant might choose to depart Australia voluntarily with her husband to keep her family unit intact.

18. Mr Nguyen has provided evidence that Jayden requires medical care in Australia. Country information indicates access to basic healthcare and specialist treatment is provided to all Vietnamese citizens, in both urban and rural areas. However, the Tribunal is not assured that this may be adequate for Jayden when compared to the level of care he now receives as a citizen.

19. Regarding the important consideration of Australia’s non-refoulement obligations, there is no information before the Tribunal to indicate that cancellation of the applicant’s visa would lead to a breach of such obligations. The applicant is a citizen of Vietnam and has the right of entry.

20. The Tribunal, on balance, considers that any cancellation outcome would not result in a breach of Australia’s international obligations under the CRC or ICCPR.

21. The Tribunal gives this consideration overall significant favourable weight against cancellation.

    • Any other matters

22. On 30 March 2020, the applicant’s migration agent stated the following to the Tribunal (separately constituted):

    ·They understand that the grounds for cancellation are made out.

    ·They submit that the Tribunal member retains discretion not to cancel the applicant’s visa. In the midst of the current COVID-19 pandemic, it would be prudent and fair on the applicant and most importantly her son to defer a decision on this matter until such a time that it would be safe and appropriate for the family to travel and return to Vietnam.

    ·Regard be given to the significant effects that the current COVID-19 pandemic health crises would have on the applicant’s son’s health and asthma condition which was noted by his treating physician as being severe enough to have him remain in Australia.

23. The Tribunal (previously constituted) in its prior decision accepted that it was then likely that the applicant and her son might experience some difficulty in returning to Vietnam because of the COVID-19 pandemic. The Tribunal noted, importantly that the applicant and her son have travelled to Vietnam regularly and continue to have family in Vietnam. It suggested to the applicant and her family that they practice safe health practices, including social distancing requirements, to avoid any health challenges. It also suggested to the applicant that she consult with her health professionals and seek their advice on additional strategies that could be employed to safeguard her family.

24. The observations of the Tribunal (previously constituted) have been again brought to the forefront by the latest COVID-19 outbreak in Australia and Vietnam. The Tribunal accepts that there is a level of uncertainty arising from the recent COVID-19 pandemic. However, the travel limitations that prevailed at the time of the hearing have now been relaxed by the Government and international travel has resumed.

25. The Tribunal has had the benefit of oral evidence from the applicant and has read the information provided by the applicant’s representative and other pertinent information.

26. The Tribunal’s overwhelming concern is with the applicant’s son Jayden - who is an Australian citizen. The view of the Tribunal is that his health (as a citizen) could be impugned - were he forced to relocate to Vietnam. This conclusion is based on the copious medical advice given to the Tribunal via the applicant’s representative. His relocation could also be a source of hardship for him from a cultural point of view as he is about to start school.

27. The Tribunal finds (on the sum of the evidence before it) that the adverse conduct of the applicant - though egregious - is outweighed by the mitigating hardship considerations already canvassed by the Tribunal in this decision - affecting her son.

28. The Tribunal has decided that there are grounds for the cancellation. However, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the applicant’s visa should not be cancelled.

    decision

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Michael Cooke
    Senior Member