1832876 (Migration)

[2020] AATA 5160

1832876 (Migration) [2020] AATA 5160 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832876

MEMBER:Meena Sripathy

DATE:18 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations; and

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 18 November 2020 at 4:16pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – sponsorship application refused because of sponsor’s previous significant criminal history – length of time with clear criminal record – overlap between end of sponsor’s previous marriage and beginning of relationship with applicant – best interests of Australian citizen children – COVID-19 travel restrictions – business and real estate interests – financial hardship if required to live in applicant’s country – consistent and credible evidence – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 1.20, 1.20KC, 1.20KD; Schedule 2, cls 309.211, 309.221, 309.213, 309.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 7 November 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 18 July 2017 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the delegate found that the sponsorship referred to in cl.309.213, had been refused on 3 October 2018 on the basis of r.1.20KC(3) and had found that it was not reasonable to approve it under r.1.20KC(4).

4. The review applicant appeared before the Tribunal by video hearing on 16 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant meets cl.309.222.

7. The visa applicant is a [Age 1] year old Vietnamese national.  She is sponsored by the review applicant, who is a [Age 2] year old Australian citizen. The parties claim they first met in September 2013 and committed to a long term relationship in November 2015. They married [in] June 2017, and subsequently lodged the present application. The visa applicant has declared no previous relationships. The sponsor, declared that he was previously married and sponsored this partner to Australia in 2005.  She passed away from illness [in] April 2016 in Ho Chi Minh city. 

8. The visa applicant and review applicant have two children of the relationship, a daughter born in August 2017 and a son born in January 2020.  Evidence of the children’s Australian passports have been provided to the Tribunal.

9. The applicant provided a National Police Check dated 30 June 2017 relating to the sponsor which set out disclosable court outcomes relating to the sponsor dating back to 1984.  Specifically it reveals convictions for serious [Offence 1] and related offences in 1984 for which the applicant received sentences of 3, 6 and 7 years and several other non related offences in 1988, 1995 and 1999  relating to [Offences 2 and 3]. 

10. On 9 May 2018 the Department wrote to the applicant’s sponsor to invite his comment on information that the police checks he provided to the Department discloses a history of convictions that indicate he has a significant criminal record which may require the Minister to refuse to approve his sponsorship unless it is reasonable to do so.  He was invited to comment on why it is reasonable to approve the sponsorship despite his convictions and significant criminal record.

11. On 23 May 2018 the applicant’s representative provided a response submitting the following:

    ·The offences committed by the sponsor occurred in 1984, 33 years ago and he completed his sentence more than 25 years ago. He was at that time a new migrant and had limited understanding of the law.

    ·From 1999 to this date the sponsor has a clear criminal history.

    ·He has since then successfully sponsored his former wife and her children in 2005.

    ·Since then he has also been working and paying taxes in Australia and has never received Centrelink benefits.  He now owns his own business and pays tax.

    ·He owns two apartments and a house which he leases for rent and an apartment in which he resides. His business generates AUD1000-2000 per week and he pays mortgage to Australian banks on his properties amounting to AUD 800,0000 for properties that are valued around AUD2.2 million. This demonstrates he has significant ties and commitments to Australia and has been a good resident in Australia since completing his prison sentence for the offences committed in 1984.

    ·The sponsor has treated his step daughter whom he sponsored in 2005 very well and there are no reports of domestic violence or any incidents since he has lived with his former wife and her daughter.

    ·He is in a long term relationship with the current visa applicant since 2013 and they have a child together, born [August] 2017. The child was granted Australian citizenship on the basis of the sponsor’s paternity being established by DNA.

    ·It is in the best interests of the child, as an Australian citizen, to live in Australia.  The sponsor’s business is in Australia and he is currently travelling back and forth to spend time with his wife and child.

    ·The applicant and child are totally dependent on the sponsor financially. If the sponsorship is not approved the sponsor will have to abandon his business in Australia to live with his wife and child.

    ·The sponsor also supports his adopted son [Master A] who is an Australia permanent resident, who is [Age 3] years old, since his migration to Australia in 2005.

    ·The sponsor has proved himself to be a person of good character and has not committed any further offences since 1999.

12. On 3 October 2018 the delegate, having considered the submissions made, decided to refuse to approve the sponsorship and notified the sponsor of this decision on 9 October 2018. The delegate found that other factors outweigh the existence of a child of the present relationship and was not satisfied that there were compelling reasons why the sponsor and applicant are unable to raise their child together in Vietnam.  The delegate’s refusal to approve the sponsorship also raised concerns about the apparent overlap between the end of the sponsor’s previous relationship and commencement of the present one, leading to concerns as to whether the present relationship could be considered long term as claimed. The delegate stated in her decision record that the decision not to approve the sponsorship was not reviewable by the AAT. 

13. On 9 October 2018 the Department wrote to the applicant to invite comment on the adverse information that the sponsorship was not approved pursuant to r.1.20KC of the Migration Regulations 1994 which would lead to the decision to refuse the visa because cl.309.222 requires that the sponsorship be approved.

14. The delegate proceeded to refuse the visa application by decision made on 7 November 2018.  The sponsor (review applicant) lodged an application for review of the decision to the Administrative Appeals Tribunal on 8 November 2018.

    Evidence before the Tribunal

15. In May and November 2019 the review applicant submitted various documents in support of the ongoing relationship with the visa applicant, including photos, communication records, bank statements showing regular deposits by the review applicant to the visa applicant, evidence of the review applicant’s visits to Vietnam in December 2018, June and August 2019. 

16. On 14 May 2020 the review applicant’s representative made a further detailed submission addressing the sponsorship refusal and ongoing, genuine and long term nature of the relationship. The submission provides the following new information:

    ·     The sponsor’s former wife was sick for some time and eventually died [in] April 2016 in Ho Chi Minh City, Vietnam. Their relationship had ceased being of a spousal nature some time before that, from at least early 2015, but he was reluctant to divorce her and continued to take care of the responsibility for her in the last years of her life.

    ·     The sponsor and visa applicant first met in September 2013 in Ho Chi Minh City and progressed into a relationship from November 2015.  They started living together from [July] 2016 after his former wife passed away and married [in] June 2017. They lodged the present application on 18 July 2017.

    ·     [In] August 2017 their first child of the relationship was born. They have since had another child, born [January] 2020.

    ·     The sponsor has travelled regularly to Vietnam to visit the visa applicant and his children between 2017 and 2020, details of 12 visits since the birth of the 1^st child.  He was also regularly travelling to Vietnam since they met in 2013- dates for another 16 visits were provided. He has also provided regular financial support, they live together as a couple whenever he visits Vietnam

    ·     Contrary to the delegate’s reasons in the refusal of sponsorship, the sponsor does not have a business in Vietnam, only in Australia and would suffer significant financial hardship if he had to close his business to live in Vietnam with his wife and children.

    ·     The submissions relating to the significant time lapsed since the criminal history of the sponsor and clear record since then are reiterated. The representative notes that they have been unable to locate any records relating to the criminal matter from over 20 years ago because of the substantial lapse in time.

    ·     The representative argued that the substantial passage of time since the past offences, clear history of the sponsor since then, existence of 2 children of the relationship and strong evidence of an ongoing and genuine relationship between the review and visa applicant are the basis for the matter to be remitted to the Department. It is also submitted that the visa applicant should be granted a subclass 100 visas on the basis of the long term relationship.

17. On 6 November 2020 further documents in support of the relationship was provided, including evidence of financial transfers, communication records, photos and Australia passports of the two children.   

18. At the hearing the applicant gave evidence about his current circumstances, family composition, past and present relationships and factors relevant to whether it is reasonable to approve the sponsorship given his previous criminal record. The applicant answered the Tribunal’s extensive questioning on all of these matters in a forthright and direct manner and without hesitation. The Tribunal also spoke with the visa applicant by telephone and her evidence was substantially consistent with that of the review applicant, save as to one matter.  Relevant details of their evidence are in the discussion below.

19. The review applicant gave evidence that he moved from his apartment in which he had been residing for many years, to a house he also owns, last year to prepare it as a home for the visa applicant and his children’s arrival in Australia.  He presently owns two apartments which are rented out, as well as the house he lives in. He has his own business, as a [service provider]. Prior to Covid 19, he employed casual workers to assist him, but lately there is insufficient work and he does it on his own. The visa applicant’s evidence about the review applicant’s living and work circumstances was substantially consistent with his evidence.

20. The Tribunal asked him about his family members.  He said he has no siblings, and in Australia the only family member he has is his step daughter, the child of his former partner who passed away in 2016.  The step daughter is pregnant now and soon due to give birth to her first child.  She lives with her boyfriend in an apartment across the way from his previous apartment. She inherited this property form her late mother. Apart from this child, his previous partner also had an adopted son, [Master A], who came to Australia as a child after she passed away.  His step daughter was the primary carer for this child, but he was eventually sent back to Vietnam because she was unable to manage him. The review applicant said he continues to provide some financial support for this child through his step daughter, and from time to time he visits him at his paternal grandmother’s home in Vietnam. In her evidence, the visa applicant was aware of the review applicant’s step daughter and her circumstances, but did not mention anything about the adopted son.  The review applicant told the Tribunal that he has not spoken about the boy to the visa applicant because he has not had much to do with him, and only occasionally visits him when he is in Vietnam.

21. The review applicant provided a description of the timing, inception and development of the relationship between himself and the visa applicant. He said they initially met in 2013 at a mutual acquaintance’s party. He was with his previous wife at that time. They simply began a friendship at this time.  In 2015 the relationship started to develop into something more. He started to develop romantic feelings for her. By this time his previous wife was unwell and their relationship was no longer a physical one but he continued to live with her and care for her.  He and the visa applicant did not commence a physical relationship until July 2016 after his former wife passed away.  They married in July 2017.  The review applicant told the Tribunal he never told his former wife about the feelings he was developing for the visa applicant because he did not want to hurt her. The visa applicant’s account of their relationship was consistent with this.

22. The Tribunal asked the review applicant when he told the visa applicant about his criminal history. He said he told her after they started to live together.  He told her that when he was much younger he committed offences including [details of Offence 1], and he served 5 years in prison for it. He told her he is remorseful for what he did but what is done is done and he cannot reverse it. He asked her what she thought about it and she told him she was very sad about it but it was long ago.  She accepted that he wanted bygones to be bygones and that he was very regretful about it. The review applicant told the Tribunal he has told his wife, but not his step daughter about his past.  He does not want to upset her or have her current pregnancy affected by this disturbing information. He wants his daughter to respect him as a good father and grandfather for her children.

23. The Tribunal noted he underwent DNA testing to establish paternity of his first born child.  He said the Department asked him, perhaps because of his age.  He was prepared to do the same for the second child but it was not required.  Both children have Australian passports now and are citizens.

24. The review applicant confirmed that he has been visiting Vietnam regularly since 2017 until March this year when the borders closed.  When he is in Vietnam he lives with the visa applicant and their children.  They live in a house he helped her to buy in 2017.  She lives there with her mother and niece. The review applicant has met her brothers and spends time with them when he is there.

25. Apart from the matters mentioned in the 2017 Police Certificate he has no other convictions since 1999 and has been law abiding and hard working.

26. The Tribunal asked the review applicant why he believes it is in the best interests of his children to approve the sponsorship.  He said he believes health services and education are better in Australia and that they will have better opportunities and future here.  Recently his son was admitted to hospital in Vietnam and he was very worried about him.  If he was here he would not have been so worried. He believes that children need the parental care of both parents and it has been very difficult for him to be far away from them.  The review applicant became visibly emotional and distressed when speaking to the Tribunal about this.

27. Regarding his business, he confirmed he only has a business in Australia and has never had a business in Vietnam. He once considered helping his brother in law start up a business there, because they are in the same line of work as him, but it was only ever an idea and for the purposes of helping them. He never established a business in Vietnam and has no intention to live in Vietnam.

28. Regarding his former wife’s date of death he confirmed it was [April] 2016.  He does not know why there would be any activity on her immigration records after that date. He can provide evidence of her death. The probate application in Australia was delayed due to difficulties he had getting documents from his previous lawyer, who also died suddenly in the middle of the process. He eventually obtained probate in October 2017.

29. Following the hearing the review applicant provided documents evidencing his former wife’s death, including the death certificate and documents relating to the probate application.

30. Also following the hearing, the Tribunal conducted some enquiries of Departmental records available to it to follow up the applicant’s evidence about his step daughter, [Ms B],  and step son, [Master A].  While the information located about [Ms B] supported his evidence in the main, the Tribunal was unable to locate any information or records about the claimed step son.  While this caused some concern for the Tribunal about the veracity of the applicant’s claims regarding this step son and relationship with this individual, it considered ultimately it was not of direct material relevance to the primary considerations in the review.

    CONSIDERATION

    Are the sponsorship requirements met?

31. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

32. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

1. Relevantly in the present case, r.1.20KC provides that the minister must refuse to approve the sponsorship of a sponsor of a subclass 309 visa applicant if the sponsor has been convicted of a relevant offence or relevant offences and has a significant criminal record in relation to the offences.

2. Relevant offences are defined in subparagraph (2) to include violence against a person, including assault and sexual assault and the threat of violence. Significant criminal record is defined in r.1.20KD and includes a sentence to a term of imprisonment of 12 months or more.

3. Subregulation  1.20KC(4) provides that the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to matters including the following (without limitation):  (a)  the length of time since the sponsor completed the sentence (or sentences) for the relevant offence or relevant offences;  (b)  the best interest of the following: (i)  any children of the sponsor; (ii)  any children of the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned; (c)  the length of the relationship between the sponsor and the applicant who is seeking to satisfy the primary criteria for the grant of the visa concerned.

4. On the basis of the National Police Check dated 30 June 2017 the Tribunal finds, and it is not disputed by the review applicant, that he has been convicted of relevant offences as described in r.1.20KC(2) and he has a significant criminal record as that term is defined in r.1.20KD.

5. The critical issue therefore, is whether the Tribunal considers it reasonable, notwithstanding these convictions and this record, to approve the sponsorship, having regard to the matters referred to in r.1.20KC(4) and any other relevant matters arising on the material.

6. For the following reasons the Tribunal has concluded that it is reasonable to approve the sponsorship in the present case.  Firstly, while acknowledging the seriousness and significance of the offences and criminal record of the review applicant, the Tribunal also acknowledges the significant time (over 35 years) that has passed since the offences were committed and the applicant served his sentences.  The 2017 police check provided indicates the last criminal offence recorded against him was in 1999, and the Tribunal accepts the review applicant’s oral testimony that he has had no other criminal charges or sentences to date since that time.  It notes his representative’s offer to obtain an updated police check certificate, but given the Tribunal finds the applicant to be a credible and honest witness, it accepts his oral evidence on this and considers it unnecessary. The Tribunal finds a substantial period of time has lapsed since the applicant’s significant criminal record and there is no evidence that he has engaged in any other criminal activity since his last recorded offence in 1999.

7. Secondly, the Tribunal takes into account the two children of the relationship and the review applicant’s arguments that it is in their best interests for the sponsorship to be approved so that they can live together with both parents in Australia. The review applicant argued that the health and education opportunities are more favourable in Australia.  He also submitted that if not approved, he would have to continue to visit them in Vietnam which is financially unsustainable for him and would consequently disadvantage them. The children’s best interests would also not be served if he brought them to Australia, separating them from their mother.  The Tribunal accepts, given the age and vulnerability of the children, it is in their best interests to approve the sponsorship to enable the children to live with both parents in Australia where their access to health, education and other services are likely to be better and the review applicant has an established business and stable income and accommodation for his family.

8. Thirdly, the review applicant relies on the long term, genuine and ongoing relationship between himself and the visa applicant. A substantial amount of evidence in support of the existence of a genuine and ongoing relationship has been provided. The review applicant and visa applicant gave consistent and convincing evidence about the inception and development of their relationship since 2015. It is apparent form the travel history of the review applicant in this period that he has been making regular trips to visit the visa applicant and their children. Evidence has been provided of regular financial transfers. They each gave evidence of their knowledge of and interactions with the extended family. There are two children of the relationship and they have each indicated a desire to continue to care for their children together and make future plans together. The Tribunal is satisfied, having considered all the circumstances of the relationship, that the visa and review applicant are in an ongoing genuine and continuing spouse relationship which, having commenced in 2017, can be characterised as long term within the meaning of that term in r.1.03 of the Regulations ( defined as being not less than 2 years if there is a dependent child, or in any other case, not less than 3 years).

9. Finally the Tribunal has also considered the circumstances of Covid 19, which has made the separation of the review applicant from his children and the visa applicant even more complicated.  If the sponsorship is not approved the uncertainty and unpredictability of the circumstances of the global pandemic makes continuation of the relationship by way of commuting between countries much more complicated if not impossible. The Tribunal accepts that it is financially unsustainable, but also at present impossible for him to travel to spend time with his children and wife. 

10. For all of these reasons, the Tribunal finds it is reasonable in the circumstances of the present case to approve the sponsorship.

11. Given the findings above, the Tribunal is also satisfied that the visa applicant is the spouse of the review applicant at time of application and continues to be the spouse of the review applicant at time of decision, and therefore cl.309.211 and cl.309.221 are met.

12. On the evidence before the Tribunal the requirements cl.309.222 are met.

13. 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 309 visa.

    DECISION

14. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations; and

    ·cl.309.222 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member