1503388 (Migration)

[2016] AATA 3903

1503388 (Migration) [2016] AATA 3903 (23 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dinh Cuong Nguyen

CASE NUMBER:  1503388

DIBP REFERENCE(S):  CLF2014/41025

MEMBER:Robert Wilson

DATE:23 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 May 2016 at 2:35pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 February 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 March 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The applicant appeared before the Tribunal on 21 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Based on a copy of the decision record which he provided the Tribunal prior to hearing, his last substantive visa ceased on 23 July 2013. He has not held a substantive visa since.

   ISSUE

7. There is no evidence that the applicant entered Australia as the holder of a Subclass 995 visa or special purpose visa, so the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them.

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

8. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

9. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2). In this case the applicant last held a substantive visa on 23 July 2013 and the visa application was lodged more than 28 days later. Therefore, Schedule 3 criteria 3001 is not met.

10. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

    Compelling reasons

11. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

12. The Tribunal discussed the parties’ circumstances with them.

13. The Tribunal found the oral evidence of the applicant to be consistent.  

14. The sponsor’s oral evidence was consistent.

15. The Tribunal put adverse information which was originally provided to the Department, to the applicant under s.359A of the Act. At the hearing the applicant refuted the allegations and said that it was totally untrue.  He provided reasonable responses refuting the allegations.  The information before the Tribunal is anonymous and overall, the Tribunal can only attach little weight to the allegations.

16. The applicant arrived in Australia on 18 October 2010 on an overseas student visa (sub-class 573) from Vietnam. 

17. The applicant married the sponsor on 12 October 2013 and received their Certificate of Marriage dated 12 October 2013 (f.10 DIBP file), and the NSW Marriage Certificate from the Registry Office (ff.32 & 71 AAT file).  He has financial support from his parents in Vietnam, and his parents in law assist him and the sponsor.

18. Their individual oral evidence at the Tribunal hearing as to how they met and the relationship developed was consistent.  The sponsor’s parents attended the wedding festivities, but the applicant’s parents could not obtain visas to travel from Vietnam to Australia.

19. The Tribunal accepts the applicant’s advisor’s written submission on 26 April 2016 (AAT f.74) that the applicant believed that his visa would expire on 30 September 2014, however, it was cancelled on 23 July 2013.  In this regard in the delegate’s decision, she wrote that;

    While I am unable to revisit the decision to cancel your subclass 573 visa, however, I have taken into consideration that the visa was cancelled as you did not start or attend your course of study.  In your submission, you state that you ‘did not know exactly the obligation of the student visa requirements ’and you thought your substantive visa was valid until September 2014.

20. The Tribunal finds that these factors were not beyond the applicant’s control and the responsibility for ensuring an applicant adheres to visa conditions and does not become unlawful rests with the applicant, and that the applicant should have been studying.  It is not a compelling reason to not apply the Schedule 3 criteria.  

21. The applicant indicated that he came to study.  He provided a Certificate of English Language Proficiency obtained from the Holmes Institute.  It covered the period 23 September 2013 to 1 November 2013.  The English course was to develop his proficiency prior to him attempting the Bachelor of Business course.  He attained a result at the Upper Intermediate level at Holmes (see ff. 67, 68 & 67(a) AAT file).  He also provided a Final Certificate of Attendance from the Holmes Institute for the period between 23 September 2013 and 1 November 2013, showing that his average attendance was 93% which fell into the satisfactory range (f.67 AAT file). The Tribunal accepts these documents.

22. The applicant gave evidence that although the school cancelled his visa in July 2013 in September 2013 he enrolled for the English course at Holmes College, and he was accepted.  So, he wondered if Holmes College accepted him for the English course why they did not let him know that his visa had been cancelled. He indicated that it was another compelling reason that on 23 September 2013, the school still did not notify him of the visa cancellation. He stated that he did not know until 12 March 2014 when the Department refused his application for a Partner visa.  The Tribunal does not find this constitutes ascompelling reasons.  The Tribunal finds, it is up to the applicant to be aware of his visa situation, and he should have maintained contact with the Department.

23. The applicant indicated to the Tribunal that after the English program he was waiting for a certificate of enrolment in the Bachelor of Business course, but he didn’t receive it. He said that when he enrolled in the English course the representatives of Holmes College said that they would send it to him after he finished the English program, but he has not received it. He said he did not make any enquiries at Holmes College. The Tribunal finds contacting the College to follow up was the applicant’s responsibility and something he could have done, and it is not a compelling reason.    

24. He stated that he had a Bridging Visa E, but it did not allow him to work, study or to go overseas.  The Tribunal accepts that the applicant held a Bridging visa E.  

25. Further regarding compelling reasons, the Tribunal asked the applicant why he stayed in Australia after his last substantive visa was cancelled on 23 July 2013.  He said at that time, he moved accommodation, so he did not know that a letter had been sent to him, indicating that his visa had been cancelled.  He found out on 12 March 2014 when he went to the Department of Immigration (DIBP) with his solicitor to apply for another visa.

26. He gave evidence that he did not send a letter to the Department saying that he had changed his address. He did not know he had to do that. The Tribunal finds that the applicant could not expect a letter to be received by him if the sender was not aware of his new address.  In those circumstances the Tribunal finds that this does not constitute as compelling reasons. 

27. The applicant also said that sometimes he went back to his previous home where there were 4 townhouses in the block. He found out that the letterbox in the block next to his had its lock broken. The Tribunal asked what that meant.  The applicant said there were 4 letterboxes in the block, and 3 were open and 1 had its lock broken. He asked the tenants who had shared the room in the house with him if they saw any letter and they said no. He also asked one of the 2 tenants in that townhouse.

28. The Tribunal asked what his reason was for going back to the townhouse. He said he just wanted to check if any letters have been sent from the bank and he also purchased items online as well. The Tribunal asked if this was the first time that he had gone back to check for the letters. He said he came back several times. He then said he only came back a couple of times, but only one time to check for the letter.  The second time was when he bought and accepted goods online.

29. The applicant said the lock was broken. However it wasn’t his letterbox and it was broken before he moved into that place.  There were 4 letterboxes for his place and he had letterbox number 4. There was a letterbox for each person in the place.

30. The Tribunal finds that the applicant did look for a letter from the Department at his previous address at the townhouse, but did not find it.  The Tribunal finds that it was his responsibility to make enquiries from the Department if he thought that he had missed receiving a letter from it, which was addressed to him.  The Tribunal finds that this does not constitute compelling reasons. 

31. The advisor wrote in his letter dated 26 April 2016 (f.74 DIBP file), that the Department

    issued the valid application; however after the file was re-located to Brisbane office, the officer in charge, refused the application and quoted that the visa was cancelled. This has been inconsistent between the 2 Department officers and in fact it is not correct in the case of the review applicant.

32. The adviser stated at the hearing that there has been an administrative mismatch or error as he has all the evidence here from the beginning.

33. The Tribunal accepts that Commonwealth Departmental files may be transferred from one state to another state.  Regarding the issuing of the valid application, there is a letter dated 17 March 2014 (DIBP file, f.78) addressed to the applicant which states, ‘Your application has been assessed as a valid application.’ The Tribunal finds that this does not mean that the applicant’s application has been successful, but that it can be determined.  The Tribunal does not attach any weight to these matters, and does not find them to be compelling reasons.

34. The applicant’s wife, the sponsor, referred to the following compelling reasons. They want to live together.  Further they wanted to be both working, to buy their house and to have children. Thirdly, if the applicant is not in Australia she cannot concentrate on what she is doing.  He helps her a lot and supports her with her study as well.  The Tribunal does not find any of these matters to be compelling reasons, as most couples would generally feel this way.  Lastly, the sponsor suffers from asthma. She hasn’t been taken to hospital on any occasion.  She has to use a Ventolin spray.  ‘Ventolin (albuterol) is used to treat or prevent breathing problems in patients who have asthma or certain other airway diseases ( accessed 21 May 2016).  It would appear relevant that the sponsor does not claim she needs the applicant to manage her asthma.  The Tribunal does not find that being asthmatic is a compelling reason. 

35. The adviser referred to the Vietnamese culture, that is, the society in Vietnam. It is a Communist country.  Vietnam is a one-party Communist state ( accessed 21 May 2016). The adviser indicated at the hearing that there is a very bad culture in Vietnam.  The Communist government encourages children to ‘tell on’ their parents.  This culture is brought to Australia.  If you do something wrong, people can inform on others but the applicant has not done anything wrong in this case.  They will not allow the applicant to return to Vietnam.  The Tribunal finds that living in a Communist country, where things like children informing on parents occur is not relevant in that the applicant has not claimed any past harm in Vietnam and gave only one example of a difficulty faced by people in Vietnam which does not apply to him since he does not have children.  Further, the Tribunal has considered these claims, but does not find that they are compelling reasons, as the applicant is said to have done nothing wrong in this case.

36. The adviser said the applicant can go back to Vietnam and the wife will allow him, but the case will be refused there.  He referred to the decisions coming out of Ho Chi Minh City and some others place in Vietnam.  The applicant did not provide any evidence to support this claim, and as such, it is not considered to be a compelling reason.

37. The adviser referred to the ‘dob in’.  He said that is the reason why they were refused and this is unfair. The Tribunal does not accept this. The basis for the delegate’s decision has no impact on the Tribunal’s decision as the Tribunal is looking at the matter de novo, and in any event the Tribunal has given the dob-in letter no weight.

    FINDINGS

38. Accordingly, given all of the above, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria.  Accordingly, the applicant meets cl.820.211(2)(d).

39. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Robert Wilson
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)     the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.