Vu (Migration)

[2022] AATA 3607

Vu (Migration) [2022] AATA 3607 (4 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hong Nhung Vu

REPRESENTATIVE:  Mr Francis Trung Huu Tran

CASE NUMBER:  2209737

HOME AFFAIRS REFERENCE(S):          BCC2020/2009947

MEMBER:SM Michael Cooke

DATE:4 October 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 801 (Spouse) visa.

Statement made on 04 October 2022 at 2:58pm

CATCHWORDS

MIGRATION – cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased – parties divorced – permanent residency already granted – alleged non-exclusive spouse relationship – power to cancel the visa does not arise – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994

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 Home Affairs to cancel the applicant’s Subclass 801 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the review applicant (the applicant) had failed to inform the Department about a change in her (marital) circumstances pursuant to s.104 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments.

4. The applicant was represented in relation to the review. Mr Francis Tran attended the hearing. A Vietnamese interpreter assisted the Tribunal by telephone.

5. The applicant’s representative (Mr Francis Tran) issued a further submission addressing crucial issues in the case following invitation to do so at the hearing.

6. 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

7. 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 any incorrect information of which they become aware and of any relevant changes in circumstances.

8. 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. Extracts of the Act relevant to this case are attached to this decision.

9. 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.

   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.104 in the following respects: the applicant failed to inform the Department that she was no longer in a genuine and continuing spouse relationship with her sponsor.

11. The Tribunal has noted that the basis for decision to cancel the applicant’s visa was that she did not inform the Department of the fact that she was no longer in ‘a genuine and continuing spouse relationship’ with her sponsor. Thus, she was found to have breached s.104 of the Act.

12. The basis for this finding was certain adverse information which was given to the Department by an informant (Mr A) - the applicant’s former flatmate. The applicant, her former spouse and the informant shared a flat together from September 2016 to June 2020. It appears that in an unwise moment the applicant chose to have a short assignation with the flatmate informant - when on holiday in Bali. She blames this event on her husband’s continual absence in Vietnam where he spent lengthy periods of time caring for his elderly father. She was unable to join him because she could not get leave from work. Despite this, the applicant has evidenced that they remained in continual televisual contact. She has shown the Tribunal a picture of her own parents visiting the sponsor’s father in hospital. She became annoyed also at the fact (she claims) her former husband seemed to be reluctant to work when in Australia and preferred to live on benefits.

13. As a result of his (claimed) behaviour, she had to make up the shortfall by subsidising him from her own wages. Furthermore, her own parents’ marriage then broke down irretrievably in Vietnam in 2019/20 causing her further severe stress. She has evidenced the Vietnamese divorce document to that effect. Eventually, her own marriage became a victim of all these vicissitudes. She and her sponsoring spouse divorced under Australian law on 13 September 2021. In the meantime, she had been granted permanent residency and had passed her citizenship test.

14. The applicant decided to get away from the stress of the last few years and in 2020 she went on a four day holiday to Bali - accompanied by the informant. He also made statements to the Department that he was unaware that the applicant was married. In fact, he claimed to have been her boyfriend since 2016 – a fact she strongly denied in oral evidence.

15. The delegate appears to have conflated this Bali information with other Departmental information (both revealed by the informant and from investigation) to deduce the following situation:

    ·The applicant went on a Bali trip at the same time and date as the informant.

    ·During this time her sponsor was outside Australia and in Vietnam without the applicant.

    • The informant was found to have listed the same address(es) as the applicant on three occasions when he arrived back in Australia.
    • Due to all of the above, the delegate found that the applicant was in an obviously “non-exclusive” spouse relationship which she had not revealed as required – to the Department.

16. The Tribunal finds (from written and oral evidence at the hearing) that the above investigative results – are largely unremarkable. The delegate appears to not have been aware that the applicant, her then spouse (Mr Doan) and the informant were all flatting together at the same addresses from 2016-mid 2020 – according to the applicant’s evidence. Hence, there was a sequence of similar residential addresses that would account for the arrival card information of the informant and applicant concurring in the details. Furthermore, the applicant has evidenced to the Tribunal and Department that she was still in a genuine and continuing relationship with her sponsor in various statutory declarations. Photographs of Ms. Vu and her then husband’s, (Mr. Doan) video calls were submitted to the Department on 12 December 2019. The applicant, her former spouse and the informant were flatting together until the middle of 2020.

17. She has explained the circumstances surrounding the Bali event as follows:

    “During 2019 and in early 2020, my parents in Vietnam had conflicts which led to some problems and eventually they divorced. This caused me distressed.

    In addition, my husband ignored my advice to go to work to earn money to build up our family. He preferred to stay at home and received social benefits from Centrelink. We argued a lot about money. It seemed to me that my husband did not care for me, did not want to have a good family.

    I was very disappointed. I wanted to go somewhere to forget the current bad reality of my life and of my divorced parents.

    Therefore, when our flatmate (the informant) told me that he would make a short trip to Bali, I mistakenly thought that I would follow him to relax for a while to reduce my stress.

    I made a serious mistake that I will forever regret for my travelling with (Mr A) (sic).

18. Suffice to say the applicant has given details to the delegate and Tribunal of a subsequent domestic violence incident involving the informant (and the Police) and another incident involving another person.

    The visa holder alleges that the informant (Mr A) assaulted her on a street in Punchbowl on 19 July 2020 and that she also witnessed Mr A threaten to kill a man. The visa holder has provided a copy of a ‘Provisional Order - Apprehended domestic violence order’ (dated 22 July 2020) listing (Mr A) as the defendant and (Mr S) as the Protected Person. The Provisional Order recorded that the visa holder informed the Protected Person, that (Mr A) had made threats to kill him. The visa holder submits that (Mr A) was very upset with her when he found out she was a witness for the police and his accusation against her to the Department on 28 July 2020, only six days after the Provisional Order was issued, was therefore motivated by revenge. The visa holder submits that if she really was (Mr A’s) girlfriend then he would not have made the allegation to the Department against her.

19. The applicant was granted a Subclass 801 permanent residency on 18 March 2020. The applicant informed in oral evidence that her former sponsoring partner was a permanent resident. Her claim is correct. The Tribunal has confirmed that he (Mr Doan) is presently the holder of a Subclass 155 permanent resident visa, according to Departmental information. He has not had his permanent residency refused or cancelled at time of writing. Furthermore, there is no evidence in the delegate’s decision that he has been called as a witness to corroborate or contradict the informant’s claims. The applicant has claimed that Mr Doan was making another visit to Vietnam to see his ill father - during the period of time encompassed by the Bali incident. The parties were granted a decree nisi on 14 October 2021 indicating they had to have been separated since at least 14 September 2020. This was well after the grant of permanent residency to the applicant.

20. The fact is that the applicant did have a short liaison with the informant (Mr A) in Bali in February 2020, when they both travelled there on holiday. But this is not an indication that she was no longer in ‘a genuine and continuing spouse relationship’ with her (then) sponsoring spouse Mr Doan (see Cao). Furthermore, when weighing the evidence, the Tribunal prefers the evidence of the applicant against that of a person (the informant) who was served with a Provisional Order (AVO) and is the source of the serious allegations made against the applicant. In particular, the informant’s claim that he was unaware that the applicant was married - when the parties had been flatmates with him since 2016 and he had claimed to have been her girlfriend - is not credible. Therefore, the Tribunal is not satisfied on the cumulative evidence that the applicant was in a ‘non-exclusive’ relationship with the informant which she had not declared – as found by the delegate. Thus, as a result, the Tribunal finds that the ground for cancellation is not made out.

21. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

22. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    decision

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 801 (Spouse) visa.

    Michael Cooke
    Senior Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.