2003412 (Migration)

[2023] AATA 3892

2003412 (Migration) [2023] AATA 3892 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Van Ngan Nguyen (MARN: 9366614)

CASE NUMBER:  2003412

MEMBER:Justine Clarke

DATE:17 October 2023

PLACE OF DECISION:  Melbourne  

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl 300.213 of Schedule 2 to the Regulations; and

·cl 300.222 of Schedule 2 to the Regulations.

Statement made on 17 October 2023 at 6:42pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – approved sponsorship – sponsorship limitation – sponsor’s criminal history – ‘significant criminal record’ – length of time since completion of sentence – best interests of the parties’ children – length of the relationship – significant age difference – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.20KC, 1.20KD; Schedule 2, cls 300.213, 300.222

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 on 14 February 2020 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 20 October 2017, the visa applicant applied for the visa. Prior to this, on 10 August 2017, the review applicant completed and signed Form 40SP—Sponsorship for a partner to migrate to Australia in support of the visa applicant’s application for the visa. This application for sponsorship was lodged with the Department.

3. At the time the visa applicant applied for the visa, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Relevantly to this matter the primary criteria include cl 300.213 and cl 300.222.

4. Clause 300.213 requires that, at the time of application, the visa applicant is sponsored by the prospective spouse (that is, the sponsor; here, the review applicant) (cl 300.213(1)), and that the review applicant has turned 18 (cl 300.213(2)).

5. Clause 300.222 requires that, at the time of decision, the sponsorship referred to in cl 300.213 has been approved and is still in force (cl 300.222(1)).

6. Approval of sponsorship is subject to a number of limitations contained in the Regulations including the following:

   ·reg 1.20J 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;

   ·reg 1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa;

   ·reg 1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); and

   ·reg 1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016).

7. For visa applications made on or after 18 November 2016, cl 300.222 also requires the prospective spouse to 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.

8. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 300.213 and cl 300.222 of Schedule 2 to the Regulations. The delegate made these findings because they found that the sponsorship referred to in cl 300.213 had not been approved by the Minister. The delegate explained:

   On 30 January 2019, the Department wrote to you and invited you to comment on this information, as it is relevant information that amongst other things, would be the reason or part of the reason for refusing your subclass 300 visa.

   A response was received on 12 February 2019 and you stated that the sponsor committed offences due to lack of self-control, however in your view a significant time had elapsed since he was imprisoned. You also mentioned that your sponsor committed two offences in 2009 and 2014 however these were minor problems and proved that he could exercise self-control. You also submitted a medical letter from your sponsor’s doctor, dated [in] July 2019 stating that your sponsor has a non-reducible indirect right inguinal hernia containing both bowel and fat.

   I have considered the response received and additional medical information. However, the response does not change the fact that the sponsorship referred to in clause 300.213 has not been approved by the minister. As a result, I must find that clause 300.222 is not met.

9. On 21 February 2020, the applicant applied for the review of the primary decision. The review applicant was represented in relation to the review.

10. On 14 September 2023, the review applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] (the review applicant’s brother) in person. The visa applicant was available to give oral evidence by telephone from Vietnam but, in view of all the evidence before the Tribunal, the Tribunal did not consider this to be necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended the hearing in person.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The essential issue in the present case is whether, at the time of decision, the sponsorship of the visa has been approved and is still in force.

    Is the visa applicant sponsored as required?

13. From all the evidence before the Tribunal, the Tribunal is satisfied that the review applicant is over 18 years of age.

14. In the primary decision, the delegate noted that a sponsorship application had been lodged in support of the visa applicant’s application for the visa.

15. The Tribunal has reviewed the completed Form 40SP which is on the Department’s file. Question 39 relevantly stated:

    Have you ever

    ·     … been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

16. The review applicant ticked the ‘yes’ box to this question. The form requested him to give all relevant details in response to the matter he had said’ yes’ to. He recorded the following response:

    [In] February 1989, I was convicted of theft at the Melbourne Magistrates Court and was fined $150.

    [In] October 1983, I was convicted of ‘assaulting occasioning actual bodily harm with intent to do such harm’ at the Supreme Court of SA; and I was sentenced [to] three years’ imprisonment.

    [In] December 1978, I was convicted of ‘common assault’ at the PT Magistrates Adelaide Court and was sentenced three months’ imprisonment. The sentence was suspended on bond of $100 to be of good behaviour for three years.

    [In] July 1978, I was convicted of ‘common assault’ at the PT Magistrates Adelaide Court and was sentenced three months’ imprisonment. The sentence was suspended on bond of $50 to be of good behaviour two years.

17. The visa applicant also lodged with the Department the national police certificate for the review applicant, dated 31 August 2017.

18. For the purpose of this review, another relevant document lodged with the Department by the visa applicant is the review applicant’s signed written statement, dated 15 August 2018, commenting on his criminal convictions. He provided details about the events leading up to and the consequences of his acts under the headings ‘Court Hearing [date] July 1978’; ‘Court Hearing [date] December 1978’ and ‘Court Hearing on [date] October 1983’. He also addressed ‘the lessons learned’; ‘the length of time since I last committed any offences’ and his relationship with the visa applicant. The Tribunal considers it helpful to extract some key points from this statement. The Tribunal notes the following.

    During the time I was in prison, I thought of what I had done and I really felt remorse. After serving my jail terms, I have refrained from committing any similar offences and I have tried hard to become a decent citizen.

    In 2002, my son [Child B] died because of his involvement in other street kids. I was devastated because [of] his death. I have changed myself since then. Until now, there are no such words as ‘revenge’, ‘avenge’ or ‘fight’ any more.

    Attached is a newspaper’s article about my son [Child B].

    I have learned my lessons from those incidents and really felt regret for what I did. Therefore, I have tried to obey the laws and never committed any offence again since then.

    …

    It has been more than 34 years since I was convicted of those offences. I am now mature enough to know what is right and what is wrong. I can say with confidence that such convictions will never happen again. Please consider this aspect for me.

    …

    I used to commit offences in the past, which was a result of my ignorance, stupidity and ardent nature of my youth. I have learned my lessons from those incidents and I have never committed them again. I have tried to become a decent citizen and a useful person for my family since then.

19. The Tribunal has considered all these documents as well as other relevant documents such as the visa applicant’s signed written statement of 7 February 2019 (which was referred to in the extract from the primary decision above, as it was lodged with the Department on 12 February 2019).

20. The Tribunal has also considered all the evidence that has been submitted in this review, including the oral evidence given at the Tribunal hearing.

    The law

21. Division 1.4B of Part 1 to the Regulations contains a number of provisions which operate to limit sponsorship of visa applicants in certain circumstances. Relevantly to the present case, reg 1.20KC and 1.20KD operate to limit the approval of the sponsorship of visa applicants for specified visa applications, including applications for Prospective Marriage (Temporary) (Class TO) (Subclass 300) visas.

22. Regulation 1.20KC of the Regulations provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in reg 1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving matters such as violence, harassment, breaches of apprehended violence orders, weapons, people smuggling, human trafficking, ancillary offences, and attempts to commit offences involving such matters. Regulation 1.20KD provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or 2 or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences. A sentence or conviction for a relevant offence must be disregarded if the conviction has been nullified or the sponsor has been pardoned so that they are taken to have never been convicted of that offence: reg 1.20KD(5).

23. The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or primary applicant, and the length of the relationship between the sponsor and the primary applicant: reg 1.20KC(4).

24. Approval of the sponsorship may also be refused if the Minister (or Tribunal on review) has requested a police check from the sponsor under reg 1.20KC(5) and the sponsor does not provide the police check within a reasonable time: reg 1.20KC(6).

    Application of the law to the facts in this case

25. From the evidence before the Tribunal, the Tribunal is satisfied that the review applicant has a ‘significant criminal record’. While reg 1.20KC(3) provides that the Minister must refuse to approve the sponsorship in such a case, reg 1.20KC(4) provides that, nevertheless, the Minister may decide to approve the sponsorship if the Minister considers it reasonable to do so, having regard to relevant maters including those outlined at reg 1.20KC(4)(a)–(c). The Tribunal explained these matters to the review applicant at the hearing.

26. With respect to the length of time since the sponsor (here, the review applicant) completed the sentence/s for the relevant offence/s (reg 1.20KC(4)(a)), as noted earlier, the review applicant contends that ‘[i]t has been more than 34 years since I was convicted of those offences’.

27. At the hearing, the review applicant gave oral evidence about these incidents. He said that, in his early years in Australia, he had had limited English language skills and he had not understood the Australian legal system. He acknowledged that he had had to serve sentences for his wrongdoing. He also noted that now, having lived in Australia for over 40 years, he understood the law. He told the Tribunal that, in 2002, his son had been stabbed. He said that he had not committed any acts of revenge because it is for the law, and not him, to respond to such crimes.

28. As noted above, the primary decision refers to the visa applicant having mentioned two incidents from 2009 and 2014, said to be ‘small problems’ and that she claimed that the review applicant had proved that he could exercise self-control. The Tribunal asked the review applicant about these matters. He gave credible oral evidence that these incidents related to oral arguments. In the review applicant’s own words, there had been no physical involvement. He said that he had pleaded ‘not guilty’, and that ‘now, when I want to sponsor my fiancée, they bring this up’. The Tribunal notes that the review applicant’s National Police Certificate details that both the 2009 and 2014 resulted in records of ‘without conviction’.

29. The review applicant told the Tribunal that his criminal record ‘belongs in the past’. He reiterated that he had served his sentence.  

30. The review applicant’s brother [Mr A] gave detailed evidence about the matters leading to one of the review applicant’s criminal convictions. He appealed to the Tribunal to forget about what had happened in the past, calling those events ‘old history’. He urged the Tribunal to focus on the fact that the review applicant had made a new life and contribution to society. He referred the Tribunal to the character letter that had been submitted from [Mr C], [office bearer] of the Vietnam Veterans Association of Australia.  

31. In view of the evidence before the Tribunal, the Tribunal finds that the length of time since the sponsor (here, the review applicant) completed the sentence/s for the relevant offence/s is a matter which strongly weighs in favour of the reasonableness of the sponsorship being approved.

32. With respect to the best interests of the sponsor’s children (reg 1.20KC(4)(b)(i)), the review applicant said that he had had four children and only three are still living. He noted that his three living children are all adults, being born in [year], [year] and [year] respectively. The Tribunal considers that this matter appears to be neutral as to whether it is reasonable or not for the sponsorship to be approved.

33. With respect to the best interests of the visa applicant’s children (reg 1.20KC(4)(b)(ii)), the review applicant told the Tribunal that the visa applicant had a son who was either aged [age] or [age], depending on whether the Vietnamese Lunar calendar or the Western calendar was used. The Tribunal noted to the review applicant that the child had not been included in the application for the visa. He responded that this was because, since birth, the son had been raised by the grandmother as the visa applicant had been busy with work. He said that the child will remain with the grandmother. He said that, at first, they had intended to include the child but that it would be inconvenient for him to sponsor both the visa applicant and her son because he was very busy with his restaurants. The Tribunal considers that this matter appears to be neutral as to whether it is reasonable or not for the sponsorship to be approved.

34. With respect to length of the relationship between the sponsor and the primary visa applicant (reg 1.20KC(4)(c)), the review applicant gave credible oral evidence about the inception and development of the relationship, explaining that that it had been a gradual process of falling in love and telling the Tribunal about how, by coincidence, they had met up again in 2016 at the hotel where the visa applicant had been working as a cook.

35. The Tribunal noted to the review applicant that the visa applicant had applied for the visa on 20 October 2017 and asked whether there was reason that the parties had not yet married. He replied that they had had an engagement party in Vietnam. He said that he came from a big family with about [number] siblings who all lived in Australia. He said that his siblings had been busy with their jobs and families and had not been able to travel to Vietnam. He said that he and the visa applicant wished to have the wedding in Australia so that all his brothers and sisters could attend.  

36. The Tribunal asked the review applicant if there was a reason why the engagement ceremony had not been held in a family home. He said that it had been held in such a home (the home of the visa applicant’s older sister) and it was just that the display and partition had made it look like it had been held in a restaurant.

37. The review applicant said that, after the application for the visa had been refused, it had not been possible for the parties to see each other because of the COVID-19 pandemic and associated border closures. He said that, in 2022, he had travelled four times to Vietnam, seeing the visa applicant each time. In addition, he said that, in April 2022, he and the visa applicant had travelled to [Country 1] for a week. He said that, so far in 2023, he had made one trip to Vietnam. The movement records for the review applicant, a copy of which is on the Tribunal’s file, corroborate these claims. 

38. The Tribunal also noted to the review applicant that there was an age difference of around 40 years between the parties and queried whether this had caused the couple any problems. The review applicant said that it had not. He noted that, previously, the visa applicant had had a boyfriend (the father of her son) who had deserted her when she was pregnant and that she had never had an engagement or a wedding before. He said that he and the visa applicant were in love and wanted to live together. 

39. The review applicant also said that, if the visa applicant is not granted the visa, he thinks he will go to Vietnam to live with her. He said that they loved each other and that they want to live together for mutual support. He noted that they were both good cooks, he with his restaurants and she with an online food business. He said that he wanted to bring the visa applicant to Australia so that they could work in the same business and live together.

40. The Tribunal found the review applicant to be credible and accepts his oral evidence.

1. The Tribunal also notes that [Mr A] gave oral evidence that he was the oldest brother in the ‘big family’. He said that they were all ‘totally supportive’ of the relationship between the review applicant and the visa applicant. The Tribunal also found [Mr A] to be credible and accepts his oral evidence.

2. In view of the evidence before the Tribunal, the Tribunal finds that the length of the claimed relationship between the sponsor and the primary visa applicant is a matter which weighs in favour of the reasonableness of the sponsorship being approved.

3. The Tribunal has also had regard to the claims made about the review applicant’s health. The review applicant told the Tribunal that he still experiences problems with gout in his feet; that he has swollen joints; that he takes medication daily for hypertension; that he has incurable arthritis (and showed the Tribunal his right hand) and that his hernia was subject to surgery. The Tribunal notes the medical evidence that was submitted to the Department in support of various health claims. As the Tribunal found the review applicant to be credible, the Tribunal finds that the review applicant’s health and his desire for the visa applicant to migrate to Australia so that they can be together and so that she can provide him with care is a matter which weighs, to some extent, in favour of the reasonableness of the sponsorship being approved.

4. Therefore, from all the evidence before the Tribunal, the Tribunal considers that it is reasonable for the sponsorship to be approved. Accordingly, the Tribunal is satisfied that the requirements of cl 300.213 and cl 300.222 are met.

   CONCLUSION

5. 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 300 visa.

   DECISION

6. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

   ·cl 300.213 of Schedule 2 to the Regulations; and

   ·cl 300.222 of Schedule 2 to the Regulations.

   Justine Clarke
   Member