Truong (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 820 (Spouse) visa. The cancellation was based on the applicant having provided false and misleading information regarding her relationship with Mr Nguyen. Crucially, the applicant's visa was cancelled because her husband's visa had been cancelled. The applicant's son, Jayden, is an Australian citizen and has significant medical conditions.

The Administrative Appeals Tribunal was required to determine whether to affirm the decision to cancel the applicant's visa, considering the legal consequences of cancellation, Australia's international obligations, and the best interests of the applicant's Australian citizen son. The Tribunal also had to consider the principle of family unity.

The Tribunal acknowledged that visa cancellation would render the applicant an unlawful non-citizen, liable for detention and removal, although she would have the option to apply for a Bridging E visa. This was given significant favourable weight against cancellation. In relation to international obligations, the Tribunal considered Article 3.1 of the Convention on the Rights of the Child, which states that the rights of the child are a primary consideration, and the family unity principles under the International Covenant on Civil and Political Rights. The Tribunal noted extensive medical evidence detailing the applicant's son's chronic health conditions, including bronchial asthma, eczema, vitamin deficiency, and respiratory tract infections, and the need for ongoing parental support. Medical practitioners stated that the Australian health system offered benefits superior to the Vietnamese system for the child's conditions. The applicant's son, an Australian citizen, had lived in Australia his entire life and the applicant asserted it would not be in his best interests to relocate to Vietnam. The Tribunal found that the child's best interests were a primary consideration and that the circumstances weighed against cancellation.

The Tribunal set aside the decision under review.