VU (Migration)

[2017] AATA 2820

VU (Migration) [2017] AATA 2820 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Minh VU

CASE NUMBER:  1721967

DIBP REFERENCE(S):  BCC2017/2767735

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 1:28pm

CATCHWORDS
Migration – Cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – Dependent child - Incorrect information in application – Contrived relationship – Primary 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 visa applicant is a national of Vietnam, born in February 2006. His mother Miss Thi Minh Diu Nguyen (who is the subject of a separate application before the Tribunal) had applied for a partner visa in September 2010 and was granted the temporary partner visa in November 2011. Ms Nguyen and her partner then sponsored the applicant for the Child Class TK visa, which was granted, and the applicant arrived in Australia on 15 August 2012 and was subsequently included in Ms Nguyen’s permanent partner visa.

3. On 6 July 2017 both the applicant and Ms Nguyen were issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the visa holders did not comply with s.101 of the Act in relation to the partner visa. The applicant provided a response to the NOICC and his visa was cancelled on 13 September 2017. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 7 December 2017 to give evidence and present arguments. The applicant is a minor and his mother, Ms Nguyen gave evidence on behalf of the applicant. 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 his 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

5. 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.

6. 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.

7. 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-compliance 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?

8. 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.

9. 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?

10. 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.

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

    a.Ms Nguyen made the application for a Partner Class UK visa on 24 September 2010. In response to question 22 on the application form 47SP Ms Nguyen 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. Ms Nguyen stated there was one child to that relationship, Quang Minh Vu, born on 12 February 2006.

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

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

    d.Ms Nguyen 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.Ms Nguyen 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.Ms Nguyen was granted the temporary partner visa in Subclass 820 on 15 November 2011. The applicant arrived in Australia as a holder of a Class TK Subclass 445 Dependent Child visa. Ms Nguyen presented a birth certificate relating to the applicant 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.Ms Nguyen 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. Ms Nguyen submitted Form 80 specifying her addresses in Vietnam and Australia. Ms Nguyen was granted a permanent Subclass 801 Partner visa on 25 October 2012. The applicant was included in that application as a dependent child.

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

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

    j.Departmental records show that Ms Nguyen’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, Ms Nguyen. 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 as the father of the applicant. Ms Nguyen acted as a sponsor in that application, as the applicant was a minor child.

    m.The NOICC indicates that Ms Nguyen 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 Ms Nguyen 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 Ms Nguyen travelled offshore on several occasions, Minh Duy Mai Doan never travelled with her.

    o.Ms Nguyen 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 Ms Nguyen stated she stopped living at Longfield Street Cabramatta in April 2010. Ms Nguyen’s explanation is that it was a mistake made at her migration agent’s office.

12. The delegate formed the view that Ms Nguyen 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.

13. The applicant provided a written submission in response to the NOICC on 18 August 2017 referring to Ms Nguyen’s response to the NOICC.

14. In her declaration sworn on 19 July 2017 Ms Nguyen outlined the nature of her relationship with Mr Doan and re-stated 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. Ms Nguyen 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. Ms Nguyen claims she could not ask for Mr Doan’s help because she is unaware of his whereabouts. Ms Nguyen 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. Ms Nguyen claims her marriage to Mr Doan was at all times genuine and to the exclusion of all others.

15. In relation to her addresses, Ms Nguyen 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.

16. With respect to her trips to Vietnam, Ms Nguyen states that she made three trips between July 2012 and January 2017. Ms Nguyen 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.

17. With respect to Mr Vu’s interview, Ms Nguyen 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. Ms Nguyen 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 Ms Nguyen’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.

18. Ms Nguyen also claims in her submissions to the delegate (which were repeated in the applicant’s submission to 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.

19. 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.

20. The Tribunal places considerable weight on Ms Nguyen’s refusal to facilitate DNA testing to confirm the paternity of her child. In her submissions to the delegate and the applicant’s submission to the Tribunal Ms Nguyen 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 Ms Nguyen has been able to find the funds to pay two application fees to this Tribunal in relation to her and the applicant’s visa cancellation matters and to secure 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. Ms Nguyen 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 Ms Nguyen 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.

21. The Tribunal also notes that Mr Vu has made an application for a contributory parent visa in which Ms Nguyen acted as a sponsor. The fees associated with such an application are quite high. The Tribunal acknowledges Ms Nguyen’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 Ms Nguyen’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 Ms Nguyen 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 Ms Nguyen with her cancellation matter.

22. Ms Nguyen’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 Ms Nguyen does not hold a permanent visa, she may be unable to be a sponsor and Mr Vu would be unable to get his contributory parent visa. That is, the cancellation of Ms Nguyen’s visa would mean that Mr Vu cannot obtain his visa and Ms Nguyen’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.

23. Ms Nguyen also claims that she could not find Mr Doan to arrange paternity testing. However the Tribunal is mindful that the delegate first requested Ms Nguyen 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. Ms Nguyen presented no evidence of having made any attempt to locate him. Ms Nguyen’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. Ms Nguyen 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 Ms Nguyen was unwilling to arrange the paternity testing and that suggests that Ms Nguyen is well aware that Mr Doan is not the father of her second son.

24. Ms Nguyen 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 Ms Nguyen’s ability to hold the permanent visa and Ms Nguyen would be well aware of this significance. In such circumstances, it is not unreasonable to expect that Ms Nguyen 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 Ms Nguyen 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 Ms Nguyen could not have made arrangements to find the funds to do the test and to confirm the paternity of her second child. Ms Nguyen’s refusal to do that offers strong evidence, in the Tribunal’s view, that the issue here is not Ms Nguyen’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 Ms Nguyen’s relationship with Mr Doan was not a genuine one, nor one to the exclusion of all others.

1. Ms Nguyen’s oral evidence to the Tribunal (which Ms Nguyen confirmed she was also giving on behalf of the applicant) 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. Ms Nguyen 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 Ms Nguyen’s evidence implausible. If Ms Nguyen’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 Ms Nguyen 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. Ms Nguyen 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 Ms Nguyen 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’. Ms Nguyen would have been well aware of the need to hold a visa to stay in Australia. The Tribunal is not satisfied that Ms Nguyen 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, Ms Nguyen’s separation from Mr Vu should have acted as an impetus for her to return to Vietnam. Ms Nguyen told the Tribunal that her visitor visa expired after three months, around August 2008. Ms Nguyen’s decision to remain in Australia unlawfully for about two years offers strong evidence that Ms Nguyen’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 Ms Nguyen 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 Ms Nguyen’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 Ms Nguyen met Mr Doan at the same time she claims to have separated from Mr Vu. Ms Nguyen’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. Ms Nguyen 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 Ms Nguyen’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, Ms Nguyen maintained a relationship with Mr Vu and it was always her intention to bring Mr Vu to Australia as her partner.

3. Ms Nguyen’s evidence to the Tribunal is that she maintained a relationship with Mr Vu for the sake of the child, the applicant. 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. Ms Nguyen claims they separated in January 2013, continued to live separately under one roof for several months until she found a job then she moved out. Since that time Ms Nguyen 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 the child was conceived in mid-2013 after they had already separated and that pregnancy was clearly not the reason for the separation. Thus, while Ms Nguyen 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. Ms Nguyen’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 Ms Nguyen has been untruthful about the nature of her relationship with Mr Doan.

4. Ms Nguyen’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. Ms Nguyen’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 Ms Nguyen’s circumstances, when she claims to have no money and to rely on others for financial support, her 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 Ms Nguyen has not been truthful about her relationship with Mr Doan. The Tribunal has formed the view that Ms Nguyen did not have a genuine spousal relationship with Mr Doan. The Tribunal finds that Ms Nguyen 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 same application form relates to the applicant and, by virtue of s.99, information given on behalf of the applicant is taken to be an answer on the non-citizen’s application form. Therefore, the Tribunal finds that the answers given by Ms Nguyen, which the Tribunal found to be incorrect, were answers given by the applicant on the application form in relation to the Subclass 801 visa application that the applicant has made. 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. Ms Nguyen claims in her submission to the delegate, and the applicant in his submission to the Tribunal, that she had a genuine relationship with the sponsor and has a child from that relationship. Ms Nguyen 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 Ms Nguyen 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 Ms Nguyen was granted the permanent visa and, despite Ms Nguyen claiming to have had a deeply loving and committed relationship, she 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. The applicant was included in his mother’s application for the partner visa as a dependent child and he could not have made the primary criteria for visa grant. Ms Nguyen’s eligibility to be granted a partner visa was based on the existence of a spousal relationship. Ms Nguyen 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. Ms Nguyen was granted the visa after being assessed as being a spouse of the sponsor and the applicant was granted the visa as a dependent child of a visa holder who met the primary criteria. The Tribunal has formed the view that Ms Nguyen never had such a relationship with Mr Doan. If such a relationship did not exist, Ms Nguyen was not entitled to be granted the partner visa and the applicant was not entitled to be granted the visa as a dependent child of the person who met the primary criteria. That is, the existence of a genuine relationship between Ms Nguyen and 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 Ms Nguyen 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 Ms Nguyen 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 Ms Nguyen was well aware of the deception and took an active role in it. The Tribunal acknowledges that none of these matters apply to the applicant as the only criterion he was required to meet was being a dependent child of his mother. The applicant himself made no claims regarding his mother’s relationship with Mr Doan.

    The present circumstances of the visa holder

12. The applicant referred to the family’s present circumstances in his written response to the NOICC and Ms Nguyen gave oral evidence to the Tribunal on behalf of the applicant. Ms Nguyen told the Tribunal that the applicant attends school. She said that the applicant has been living in Australia for the majority of his life and is settled in Australia. Ms Nguyen stated that she attends temple with the applicant weekly. 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 his obligations under the Act.

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

14. There are no other known instances of non-compliance by the visa holder.

    The time that has elapsed since the non-compliance

15. Ms Nguyen’s application for the partner visa was made in September 2010. The applicant was granted a Child Class TK visa as a result of Ms Nguyen’s permanent visa being granted in October 2012. More than seven years have passed since Ms Nguyen’s partner 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. The applicant attends school and visits the temple with his mother. There is little evidence about his contribution to the community.

18. 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

19. If the applicant’s visa is cancelled and if he 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 he may be subject to an exclusion period. There is no suggestion that the applicant will be indefinitely detained. Mr Vu made an application for a visa on the basis of being the father of the applicant. If the applicant does not hold a permanent visa, Mr Vu may be unable to meet the requirements for visa grant.

    Whether there would be consequential cancellations under s.140

20. 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.   

21. In her evidence to the Tribunal Ms Nguyen noted that her two younger children are Australian citizens and that if the applicant’s visa is reinstated, he will be able to apply for Australian citizenship.

22. Ms Nguyen 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 is mindful that the applicant’s father, Mr Vu, resides in Vietnam, at least until he is granted an Australian visa. If the applicant was to return to Vietnam, he will have the benefit of having both parents nearby.

23. Ms Nguyen claims that the applicant has spent a long time in Australia and he is used to life in Australia and does not know any other country and cannot live anywhere else. As noted elsewhere, that is not the case, since the applicant, as well as his siblings, have spent time in Vietnam. The applicant was granted the visa after his mother’s temporary visa was issued in 2011 and prior to entering Australia in August 2012 he lived in Vietnam. The applicant would be familiar with life in Vietnam, would have developed some language skills and may well be used to life in Vietnam. There is no evidence that during his residence in Vietnam, the applicant had experienced any hardship, even though his mother claims the living standards in Vietnam are not the same as in Australia.

24. The Tribunal is of the view that at his young age, the applicant will have no difficulty adapting to a new country, particularly as he has lived in Vietnam until 2011.

25. Ms Nguyen claims that the children would face difficulty getting household registration in Vietnam as Australian citizens but the applicant is not an Australian citizen and there is no evidence that he lost his Vietnamese citizenship after entering Australia. In her submission to the Tribunal of 7 December 2017 the applicant’s mother refers to the hardship that the two younger children may experience in Vietnam as Australian citizens but the Tribunal notes that the applicant continues to be a Vietnamese citizen and as such, he should have no difficulties accessing the various services and obtaining the household registration. The Tribunal does not accept the applicant will be denied household registration and access to various services due to his citizenship status. The Tribunal also acknowledges the Ms Nguyen’s general statement that conditions in Australia are better than conditions in Vietnam (which may appear to be an odd statement, given her decision to send the children to Vietnam) but the Tribunal finds such a broad and vague statement unhelpful. Ms Nguyen has not established that the applicant’s best interests would be adversely affected as a result of the cancellation. The Tribunal does not consider that the best interests of the applicant require that the visa not be cancelled.

26. Ms Nguyen claims that her children have a right to be brought up in the Australian community and that she wants the children to be educated in Australia. The Tribunal is not convinced that the applicant, who is not an Australian citizen, necessarily has a right to be brought up, or educated, in Australia and it may be in his best interests to be with both of his parents.

27. Neither is the Tribunal satisfied on the evidence before it that Australia has protection obligations in relation to the applicant. For the reasons stated above, the Tribunal does not accept the child would suffer hardship as a result of the cancellation. The Tribunal is also mindful that the applicant is eligible to make an application for a protection visa if he believes that Australia owes him protection obligations. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

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

28. According to the primary decision record, the applicant made an application for Australian citizenship. 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, his father may not be eligible for the grant of the contributory parent visa.

29. As for hardship, Ms Nguyen 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 the applicant lived in Vietnam until 2011. His father and grandparents live in Vietnam and the Tribunal is satisfied that at least some form of family support will be available to the applicant.

30. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that his mother 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 Ms Nguyen to obtain permanent residence. The applicant was included in his mother’s permanent partner visa application and gave the same answers (or had the same answers given on his behalf) and the Tribunal has found that such answers were incorrect. The Tribunal has found that there are grounds for cancelling the applicant’s visa.

31. The Tribunal acknowledges that over seven years have passed since the application was made. The Tribunal accepts that the applicant is settled in Australia and has been living in Australia for over five years and he attends an Australian school. His two siblings are Australian citizens. The Tribunal accepts that a degree of hardship may be caused if the visa is cancelled as that may mean that the entire family would return to Vietnam, although the Tribunal notes that the applicant, who is not an Australian citizen, would have maintained his Vietnamese citizenship. The Tribunal does not accept the applicant would be denied household registration or access to services in Vietnam. The Tribunal has formed the view that the best interests of the applicant, who is a minor, will not be adversely affected by the cancellation of his visa and the family’s return to Vietnam may allow the applicant to be reunited with his father.

1. The Tribunal has formed the view that Ms Nguyen 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 Ms Nguyen 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 Ms Nguyen’s relationship with Mr Vu and her relationship with Mr Doan – which ended as soon as the visa was granted – were arranged to enable Ms Nguyen to remain in Australia. The Tribunal has formed the view that the correct information is that Ms Nguyen was never in a genuine spousal relationship with Mr Doan. The Tribunal considers it significant that if the correct information was known, Ms Nguyen may not have been entitled to the grant of the partner visa and the applicant would not have been entitled to the grant of the visa as a dependent child and a member of the family unit of his mother. In the Tribunal’s view, that factor outweighs other considerations.

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

   Conclusion

3. 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

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

   Kira Raif
   Senior Member