2204368 (Migration)

2204368 (Migration) [2022] AATA 5274 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Catherine Farrell
CASE NUMBER:  2204368
MEMBER:David Crawshay
DATE:4 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 04 August 2022 at 10:49am
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant was not the holder of a substantive visa at the time of application – applicant does not satisfy Schedule 3 criterion 3001 – applicant’s substantial criminal record – relationship is genuine and continuing – not satisfied that the sponsor’s capacity to move to Vietnam and the hardship that may follow from such a move is a compelling reason – mental health condition – no sufficient compelling reasons to waive the Schedule 3 criteria – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.09, 1.15, Schedule 2, cl 820.211, Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 22 October 2021 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because the delegate was not satisfied that the applicant was the de facto partner of the sponsor. The delegate also found that the applicant was unable to satisfy the Schedule 3 criteria set out in cl.820.221(2)(d) and there were no compelling reasons for not apply those criteria. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 9 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, as well as from the following witnesses: [names deleted]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004 and, if not, whether there are compelling reasons not to apply those criteria.
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
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), as set out in the attachment to this decision.
The evidence in front of the Tribunal is that the applicant’s previous substantive visa ceased on [date] October 2013, meaning that this is the relevant day. The applicant applied for the present visa on 22 October 2021, which is more than 28 days after the relevant day.
As the visa application was not made within 28 days after the relevant day, the applicant does not satisfy Schedule 3 criterion 3001.
Compelling reasons
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.
The expression “compelling reasons” is not defined for these purposes. However, reasons that are compelling should “force or drive the decision-maker” “irresistibly” to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.
A note on the applicant’s past offending
In a submissions letter dated 28 October 2021 (but attached to an email dated 6 June 2022), the applicant’s representative counselled the Tribunal to consider the applicant’s substantial criminal record as a separate legal matter for the Department to consider only if and when the matter is remitted. It accepts this submission as being correct and accepts that the applicant’s past offending can only be considered in the current matter where it reveals compelling reasons for not applying the Schedule 3 criteria.
The parties’ relationship with each other
The Tribunal has considered whether the parties’ relationship and any of the individual circumstances of it would constitute compelling reasons for not applying the Schedule 3 criteria.
It must firstly be noted that this matter presents with challenges owing to the situation in which the applicant finds herself. Whereas other visa applicants may be able to draw on a wide spectrum of evidence to be able to prove that they are in a partner relationship, in this matter the spectrum is necessarily much narrower because for all but seven months of the parties’ purported five-year relationship, the applicant has been detained in one way or another. Be that as it may, the Tribunal has considered the information that has been submitted, along with the parties’ testimony, the testimony of witnesses and the submissions of the applicant’s representative.
In this regard, the Tribunal has considered evidence submitted that shows that the parties have maintained extensive communications with each other during the applicant’s periods of imprisonment and more recently detention. The parties both testified at hearing to having called each other every day while the applicant was in gaol. Although the relevant call logs only cover the period from September to October 2021, the Tribunal accepts that the parties spoke to each other almost every day if not every day. In relation to the more recent period of immigration detention, the sponsor’s mobile telephone invoices from January to April 2022 show a similar pattern of the parties ringing each other almost every day.
Evidence in the form of visitation records show regular twice-weekly or weekly visits by the sponsor during the period from November 2017 until March 2020 while the applicant was in gaol. The Tribunal has no reason to doubt that the sponsor did not visit the applicant with the same frequency while she has been in immigration detention and where it was permitted under the lockdown rules.
At hearing, the parties displayed a detailed and intimate knowledge of each other. Specifically, the applicant was aware of the sponsor’s past life including his childhood and about his previous relationship and chid from that relationship. Both parties were able to give spontaneous evidence about the events that led up to the inception and development of their relationship. They spoke in similar terms about details of their living arrangements and brief social life in 2017 before the applicant was incarcerated.
Based on the evidence in front of it, the Tribunal makes the following findings in relation to the parties’ relationship.
In terms of the financial aspects of the relationship, the Tribunal finds that the parties do not have any joint ownership of real estate or other major assets, nor do they have any joint liabilities. They have pooled their resources to only a limited extent, comprising some money transfers which were firstly given by the sponsor but then were arranged by the applicant. It finds that the parties do not owe any legal obligations in respect of the other. Finally, it finds that the parties have not been sharing in the payment of day-to-day household expenses.
Although the level of financial integration between the parties is very limited, the Tribunal recognises the clear reason for this – being the continued physical separation of the parties – and accords this aspect no adverse weight.
Turning to the nature of the household, the Tribunal finds no evidence to show that the parties have any joint responsibility for the care and support of children. In terms of the parties’ living arrangements, it accepts based on their substantially similar testimony that they lived together at the sponsor’s house in [Suburb 1] until the applicant was detained in 2017. Based on the evidence of communication and visitation records, some of which were provided by way of post-hearing submissions, it accepts that the parties have sought to maintain a common household despite their physical separation. It accepts that the parties’ living arrangements are those of partners, albeit that they have been living separately from each other. There is little if any evidence to show the sharing of housework, although in reality this aspect should be given minimal weight due again to the parties’ physical separation.
The Tribunal accepts that the nature of the household points to the parties being in a genuine and continuing relationship, and that the parties do not live separately and apart on a permanent basis.
Regarding the social aspects of the relationship, the Tribunal has considered the opinions of third parties about the nature of the parties’ relationship. In this regard, it has considered statutory declarations by [witnesses], all of whom addressed the Tribunal at hearing, along with [other witnesses]. It accepts from these declarations and from their witness testimony at hearing that the parties’ relationship is recognised by at least these people, who are either family members, friends or work colleagues of the parties, as being genuine and continuing. Additionally, it accepts that the parties have represented themselves to these people as being in a de facto and now a spousal relationship. Finally, the Tribunal accepts based on their consistent testimony that the parties have undertaken some joint social activities.
The Tribunal accepts that the evidence of the social aspects of the relationship indicates that the parties are in a genuine and continuing relationship.
Finally, the Tribunal has considered evidence of the nature of the parties’ commitment to each other. It accepts based on the parties’ consistent testimony about the inception and development of their relationship that it began in early-2017 at the house of the sponsor’s uncle with whom the applicant was staying and that it developed thereafter to a point where the applicant moved in with the sponsor to his address in [Suburb 1] in April 2017. Therefore, the Tribunal accepts that the parties’ relationship has been on-foot for more-than-five years during which time they lived together for around six months before the applicant was detained and sent to gaol and then moved into immigration detention.
In terms of the degree of companionship and emotional support that the parties draw from each other, the Tribunal has had regard to evidence showing that they have communicated extensively and that the sponsor has regularly taken the opportunity to visit the applicant while in gaol or detention. It also notes the parties’ consistent testimony about aspects of each other’s lives. It accepts that this evidence demonstrates a high degree of companionship and emotional support.
An issue for the delegate was that the applicant chose to enter into detention upon being paroled at the completion of her prison sentence and, while applying for the present partner visa, withdrew her application for an associated Bridging E visa that would have otherwise allowed her to live with the sponsor. The delegate viewed these actions as contradicting her stated intention to live with the sponsor. In response, the applicant’s representative gave cogent and plausible submissions that the applicant would have run the risk of having her Bridging E visa cancelled under s.501 of the Act if she were to apply for it, which would in turn mean that her partner visa application is also refused under s.501F(2). The submissions argue that the applicant’s strategy was aimed not at a short-term reunion on a bridging visa but at “a permanent pathway to residing together in Australia”. The Tribunal accepts this submission and accords the applicant’s choice to remain in detention no adverse weight.
As regards the question of whether the parties view their relationship as a long-term one, the Tribunal notes the clear evidence given by them that they would remain together if the applicant were forced to relocate offshore. It also accepts their evidence that they intend to begin a family, and notes the applicant’s anxiety about whether this would be able to happen if her visa were refused.
The Tribunal has considered the evidence of the nature of the parties’ commitment to each other and accepts that it points to them having a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship is genuine and continuing, and that they do not live separately and apart on a permanent basis.
The Tribunal has above considered and made findings against the circumstances of the applicant’s relationship with the sponsor, including those prescribed in r.1.09A and r.1.15A (as the case may be), individually and collectively. Based on these findings and on the fact that the parties were married to each other under a marriage that is valid under the Act, it accepts that all the individual requirements of s.5F(2) are met and that they are in a married relationship for the purposes of “spouse” under s.5F(1). It has also considered the Explanatory Statement, which states that the introduction of the “waiver” provision in cl.820.211(2)(d) recognises “the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas”.
Although the Tribunal accepts that the parties are in a spousal relationship (after having previously been in a de facto relationship), and that this relationship is what is termed by the Statement as a “long-standing relationship”, it does not believe it is correct to say that hardship would automatically ensue if the applicant leaves Australia because of this. This is because, as below, the Tribunal is not satisfied that the parties would not both be able to relocate to Vietnam during the period of the processing of the applicant’s offshore visa. They would therefore be able to continue their relationship together in the one place, and any hardship experienced by them would likely result from factors that do not relate directly to their relationship and the fact of it being genuine, which are considered below.
Issues influencing the sponsor’s capacity to move to Vietnam, including his psychological state
The Tribunal heard from the applicant’s representative that the sponsor would have to give up his disability support pension after one month if he were to relocate to Vietnam. While this claim may be true of most recipients of the disability support person, there are exceptions for certain people (such as those who have been assessed as having no future work capacity).[1] The Tribunal has not seen any evidence to show whether such an assessment has been made in respect of the sponsor, although it accepts for present purposes that the pension will probably be withdrawn.
[1] >
The Tribunal also heard that the sponsor would need to relinquish his house (which he occupies as public housing). It understands from public source information that tenancies vacant for more than six months (and where an extension is not granted) are taken back from the absent tenant.[2] As the sponsor is likely to be away from Australia for more than six months, he will probably need to give up his house. This may mean that he is unable to move back into a public tenancy upon his return to Australia, at least not straightaway.
[2] >
Much of the evidence and submissions otherwise received by the Tribunal centred on the sponsor’s psychological capacity to move from Australia to Vietnam to live with the applicant.
In the submissions letter, the applicant’s representative relevantly stated as follows:
Previous Departmental policy on ‘compelling reasons’ provided a non-exhaustive list of examples of circumstances that could justify the waiver of the Schedule 3 criteria. As set out in previous policy, these compelling reasons might include:
·Negative impact on step-children's formative years if the applicant departs;
·Issues of separation from an extended period from the sponsor;
·The sponsor’s significant emotional and psychological dependence on the applicant;
·The sponsor relies on the applicant for ongoing and continuous care;
·The potential for psychological and material hardship to an Australian citizen if the applicant were forced to depart Australia;
·Maternity issues where departure from Australia could complicate matters for the applicant; and
·Age-related maternity issues for the applicant.
While it is acknowledged that these examples no longer form part of current Departmental policy, policy is of course not binding on the delegate and is not to be applied inflexibly. In addition, the above circumstances clearly derive from the ordinary meaning of what might constitute ‘compelling’ circumstances.
[emphasis in original, footnote omitted]
It must be stated at this point that even if the Tribunal were to have regard to superseded Department policy, the highlighted policy examples appear to be primarily, although not wholly, applicable to couples who are forced to separate and not for couples who are able to travel and live offshore together.
The submissions included extracts from a report from Dr [A] dated 4 June 2022 to the effect that the sponsor’s separation from the applicant would have a “devastating” impact on his psychological condition, with it being “probable” that he would develop Major Depressive Disorder with “significant long-term consequences”. The report itself outlined the sponsor’s history and the conditions he was living with, and it contained the sponsor’s reported details of his relationship with the applicant.

The submissions went on to highlight those parts of [Dr A]’s report that were relevant. In this regard, it was emphasised that the parties would likely experience financial hardship and stress if they were to move to Vietnam. He also opined that people of the sponsor’s intellect can cope reasonably well in “stable and benign circumstances” but have significant difficulty adjusting to changed circumstances especially if they are challenging.
The submissions finished their treatment of [Dr A]’s report by extracting the following highlighted passage:
While [the sponsor] would be able to obtain practical and emotional support from [the applicant], he would still be at risk. The combination of his limited intellectual capacity, his underlying vulnerability and his ongoing psychological difficulties are such that he would be at high risk of deterioration. If his psychological condition worsened his access to appropriate psychological and psychiatric treatment is likely to be limited. As noted [the sponsor] has ongoing residual symptoms relating to childhood posttraumatic Stress Disorder. He is easily frightened, sees the world as a dangerous place and avoids crowds and night time activities. Given a higher population density in Vietnam it is highly likely his anxiety symptoms would worsen and he would become more avoidant.
[emphasis in submissions, paragraph number omitted]
The Tribunal has concerns that the submissions, [Dr A]’s report and the applicant’s testimony all proceed with the understanding that the parties would not be able to rely on any family supports while in Vietnam. Specifically, it is concerned that these documents have completely discounted the potential role that could be played by the applicant’s family. As far as the submissions are concerned, the applicant was said to have “deep-seated concerns about returning to Vietnam and reuniting with her family, who were connected to her criminal offending”. In the accompanying extract from the applicant’s statutory declaration of 3 June 2022, she stated that her family “were the main reason that I engaged in criminal conduct and I have learned that I need to maintain boundaries with them in our relationship so that I can put the past in the past”.
In terms of [Dr A]’s report, while it does not cast the applicant’s parents in a wholly negative light, it does report the applicant’s claim that “she needed to provide financial assistance to her parents and her brother and felt that she had to abscond so as to keep working”. This claim relates to the period when she was due to face trial for trafficking. Moreover, the Tribunal notes that the only reference to the parties being able to rely on outside supports is when [Dr A] reports the sponsor’s claim that he has no real supports in Vietnam, but the parties “might live with his cousins in Nha Trang”. No mention was made of living with the applicant’s parents or anyone else.
Elsewhere in the report, [Dr A] states as follows:
While [the sponsor] would be able to obtain practical and emotional support from [the applicant], he would still be at risk.
[emphasis added]
In a similar vein, [Dr A] states as follows in the next paragraph:
While [the sponsor] may be able to survive in Vietnam (with [the applicant]’s support), at the very least his quality of life would be significantly and adversely affected.
[emphasis added, bracketed words in original]
These passages do not advert to the sponsor having any support other than the applicant and there are no other passages that detail any potential support other than the aforementioned claim by the sponsor that the parties “might” live with his cousins. The effect of the above information is that the sponsor can only expect to receive support from the applicant and not from anyone else, and that this would put him at risk and, more pointedly, his quality of life would be “significantly and adversely affected”.
However, the Tribunal is not satisfied with the correctness of these opinions, as it is not satisfied that adequate consideration was given, either in the submissions or in [Dr A]’s report which is extensively quoted in the submissions, to the parties staying with or near, or otherwise receiving support from, the applicant’s parents while they are in Vietnam awaiting the outcome of an offshore partner visa application. It considers this omission to be important, as [Dr A]’s report submits that people of the sponsor’s intellect (although, the Tribunal notes, not necessarily the sponsor himself) have significant difficulty adjusting to changed circumstances especially if they are challenging. Given the importance to the sponsor of having a supportive and stable environment, not referring or at least adverting to the possibility of the parties receiving such support and stability from the applicant’s parents is a significant omission, and one which causes the Tribunal to doubt the conclusions of [Dr A]’s report and, by extension, the submissions that were based on this report.
Moreover, the Tribunal has several other concerns with [Dr A]’s report. [Dr A] states that the sponsor’s “access to appropriate psychological and psychiatric treatment is likely to be limited” in Vietnam, but this claim is purely speculative in the absence of evidence. Elsewhere, the claim that the “higher” population density in Vietnam would worsen the sponsor’s anxiety symptoms ignores the fact that many parts of Vietnam, including the home province of the applicant’s family (Phu Tho), have lower population densities than Melbourne.[3]
[3] https:// The Phu Tho Province had a population of 1,463,726 (2019) as against an area of 3,528.4km², meaning that it has a population density of 414.88 people-per-km². “Greater Melbourne” had a population of 4,485,211 (2016) as against an area of 9,992.7km², meaning that it has a population density of 448.85 people-per-km².
[Dr A]’s report states as follows in relation to the ability of low-intellect individuals to live independently:
Scores in the range he [the sponsor] evidenced are consistent with individuals who are only just capable of living independently and such individuals often struggle with many aspects of daily life.
[bracketed words added]
When [Dr A] tries to apply this finding to the sponsor’s circumstances, he refers to the sponsor’s experience with work trials during his adolescence where he was repeatedly found to be inadequate – but this was a period that is now more than 20 years ago. He also remarks that while the sponsor has been able to function autonomously, it is at a very basic level and he is likely to require support in many areas. However, [Dr A] does not provide particulars of what are the areas of support that the sponsor is “likely” to require.
Lastly, [Dr A]’s report discusses the sponsor’s diagnoses under the broader heading “Summary & Opinion” as follows:
With respect to diagnosis [the sponsor]’s presentation and reported symptoms indicated the presence of residual anxiety symptoms relating to a Posttraumatic Stress Disorder, initially present in childhood and adolescence. It appears he continues to live with a Persistent Depressive Disorder (Dysthymia), with significant associated anxiety. It is highly likely that in the period after his first wife [left] him, he suffered from a Major Depressive Episode. Persistent Depressive Disorder (Dysthymia) is a condition of chronic depression with symptoms manifesting at a lower level of severity than is the case with a Major Depressive Disorder.
[emphasis in original, paragraph number omitted]
However, this paragraph is attended with some imprecision – [Dr A] variously states that the sponsor’s presentation and reported symptoms “indicated” the presence of residual anxiety symptoms; that it “appears” the sponsor continues to live with dysthymia; and that it is “highly likely” that he suffered from a major depressive episode. The best that can be said of these sentences is that they convey an opinion and are certainly not diagnoses. The Tribunal considers this part of the report to be of little probative weight.
The Tribunal has considered the evidence in front of it and the findings made above. It accepts that there will be some level of financial hardship from the parties having to relocate to Vietnam. Specifically, it accepts that the sponsor’s disability support pension would likely be taken away, and that he would not be entitled to public housing on his return although the latter would only have an impact on the parties when they return. Conversely, the Tribunal has also considered that the capacity for the parties to be able to manage financially would depend on the ability for the parties to be supported by people in Vietnam, including by the applicant’s parents. This is dealt with further below sufficed to say that the Tribunal is not satisfied that the parties would not be able to live with or near to, or otherwise receive support from, her parents based on the evidence in front of it.
In terms of the capacity for the sponsor to adjust psychologically to living with the applicant in Vietnam, the Tribunal relies on the findings in [Dr A]’s report in only a very limited way due to the shortcomings identified above which relate mainly to the discounting of a potentially large source of support and stability for the parties but also due to the lack of a concrete diagnosis for the sponsor’s conditions. While it accepts that the sponsor may experience some challenges in moving to Vietnam, it is not satisfied that these challenges would render his quality of life “significantly and adversely affected” as submitted by [Dr A] or that, in any case, any hardship experienced would constitute compelling reasons.
The Tribunal has lastly considered other issues to do with the sponsor’s capacity to relocate. In this regard, it finds that he speaks Vietnamese fluently, was said in [Dr A]’s report to be familiar with Vietnamese culture and had made 21 trips to Vietnam between 1998 and 2019. It accepts therefore that he is familiar with Vietnam and, to some extent, Vietnamese living. The Tribunal also finds that he has been living semi-independently with the assistance of his aunt and accepts that this sense of semi-independence, along with the aforementioned familiarity with Vietnamese culture, would equip him to be able to integrate into Vietnamese society. Based on the sponsor’s self-reporting in [Dr A]’s report, it finds that he has no friends and no connections in life apart from the applicant and his aunt. At hearing, the sponsor said that he is alone and does not have many friends. Based on this evidence, the Tribunal accepts that the sponsor would therefore not suffer the same loss of connection to Australia as would be experienced by others who have deeper ties.
Based on the above, the Tribunal is not satisfied that the sponsor’s capacity to move to Vietnam and the hardship that may follow from such a move is a compelling reason.
Issues influencing the applicant’s capacity to move to Vietnam, including the claim that her family is a negative influence in her life
The applicant has submitted that her family would be a negative influence in her life were she to move back to Vietnam, and this submission appears to be based on a claim that her family’s activities were the reason for her offending. At hearing, she told the Tribunal that she was told by her mother that she had a big loan to pay. She said that she could not imagine why her own mother would do such a thing. When it was put to her that the Tribunal had no documentary evidence to substantiate the claim, the applicant said that she was telling the truth and that there was evidence in the form of SMS messages from her mother to her that proved she had pressure on her.
However, this evidence is far from clear. An extract of the sentencing remarks in the applicant’s County Court trial, as revealed in a report dated 10 February 2022 by a psychologist, Mr [B], states as follows:
I do accept, relying here more on the recorded communications than anything said in the record of interview, that there were others involved in this importation to whom you were subordinate, that you were in fear of them, and your involvement was under pressure from your own family and of the risk of arrest and all the more so, when the collection did not go as planned.
I accept, at least in part, the motivation for this offending had something to do with debts owed in Vietnam. As to these, there were some indications that they concerned your father's illness and your brother's gambling debts, although in the end, the situation is far from clear.[4]
[4] The Tribunal has not received, nor been able to access through public source information, a full copy of the sentencing remarks in [the applicant’s case].
While debts are mentioned in the extract, it is unclear to whom these debts are owed and the reasons for them, and this lack of clarity is evident from the sentencing remarks. Assuming for present purposes that these debts were to “loan sharks”, it is still unclear if the applicant’s parents were the ones who engaged these people given that the reference is only to “[her] own family” and not specifically to her mother or her parents, as there are other possibilities. For example. it is possible that the applicant’s brother engaged the loan sharks himself. The aforementioned series of SMS exchanges between the applicant and her mother in August 2012 was referenced in the judgment in the appeal to the Court of Appeal, but this reference only reveals that the applicant’s mother tried to “reassure” the applicant around the time of the latter’s arrest.[5] They do not reveal, by themselves, her parents’ involvement in the arrangement with the loan shark, let alone a central involvement. It may be that they had little or no involvement in the scheme, or at the very least were only reluctantly drawn into it after having learnt of it from their son. While this may sound speculative, the Tribunal considers that all explanations are speculative (including those given by the applicant) in the absence of sufficiently probative evidence.
[5][source deleted].
Even if the Tribunal is wrong about this and the applicant’s evidence is to be believed about her parents’ involvement, it still does not consider this to be evidence of her parents being a negative influence on her such that the parties would not be able to live with or close to them or receive support from them. If the applicant’s parents made a mistake in turning to loan sharks, then it was to remedy the same problem as she did by trafficking drugs – the supposed gambling debts amassed by the applicant’s brother, as well as her father’s health expenses. To second-guess their capacity for reform or to say that this was not atypical behaviour based on their drastic actions is in effect to question whether the applicant herself has reformed given her own behaviour. After all, the applicant’s evidence is that her offences were out of character and that she has led an otherwise law-abiding life before and after this episode. There is no evidence to show that her parents’ behaviour is indicative of a wider pattern of offending or general bad behaviour. Furthermore, nothing in the documentary evidence reveals any details of abuse of her by her parents when she was growing up, and the only potentially adverse evidence (as revealed in Mr [B]’s report) was that her early years were “arduous”, that her parents appeared to favour her brother more than her and that her father was “garrulous” when drunk.
Moreover, the applicant’s evidence (again as contained in Mr [B]’s report) shows that the applicant’s brother has since moved to [overseas]. At the very least, this evidence shows that he will not be present in Vietnam to have a negative influence on the applicant.
Finally, the Tribunal has considered that the sponsor met and has an overall favourable view of the applicant’s parents. In a statement dated 7 June 2022, the sponsor stated as follows:
I went to Vietnam and visited [the applicant]’s family once. I stayed there for I think one and a half weeks. I was nervous because I wanted to try to talk to [the applicant]’s family and make a good impression. They were really nice, and they made me feel comfortable and like a part of their family. I spoke to [the applicant]’s parents, [and] they said they were happy for [the applicant] to stay with me. We were both very excited to be able to look forward finally to our future together.
This evidence at the very least shows that the applicant’s parents are supportive of the parties’ relationship.
Based on the evidence before it and on the findings made above, and in the absence of evidence to the contrary, the Tribunal is not satisfied that the parties would not be able to either live with or near, or otherwise receive support from, the applicant’s family (who would not include her brother) while they are in Vietnam awaiting the outcome of the applicant’s offshore partner visa application. It considers that having the support of family members would lessen the parties’ hardship where it does exist because it would provide much-needed stability for the sponsor in circumstances where he is moving away from his normal support structures and may also mean that the parties are able to be supported financially.
The Tribunal has considered other issues to do with the applicant’s capacity to relocate to Vietnam. In this regard, it has considered the depth of her ties to Australia and to Australians. At hearing, the Tribunal challenged the applicant to detail the extent of her connection to Australia given that she had been detained in some form or another for the last five years. In response, the applicant spoke favourably of her experience of Australia and of the people she had met here – firstly as clients in her workplace and then as fellow prisoners in gaol – and about her relationship with the sponsor’s family whom she said have treated her like family. However, while she clearly evinced a love for Australia and Australians, the Tribunal is not satisfied that this demonstrates a connection that, if broken, would prove to be a compelling reason.
A last issue to consider, which was not addressed directly in pre-hearing submissions or at hearing, is the parties’ plans to have children. In this regard, the evidence is that they wish to have multiple children. In the applicant’s statement of 3 June 2022, she relevantly stated as follows:
As well, although I understand this reason might not be enough for the Tribunal, [the sponsor] and I want to have a family together. I understand that an offshore application, given my offending, would likely take several years to be processed. I am already [age] years old and [the sponsor] is nearly [age] years old. I worry that I cannot wait for this and will not be able to have a baby by the time an offshore partner visa is granted. For all of these reasons, I ask that the Tribunal please give us a chance to be together in Australia.
While this may be true and the applicant may feel a sense of urgency, the Tribunal notes that the parties have clearly indicated their intention to remain together should the applicant be forced to leave Australia. Moreover, it has seen no evidence of there being any impediments to the applicant being able to conceive and then give birth in Vietnam.
The Tribunal has considered the evidence in front of it and the above findings in relation to the capacity for the applicant to move to Vietnam and the hardship that may ensue from such a move. However, it is not satisfied that these reveal compelling reasons for not applying the Schedule 3 criteria.
CONCLUSION

The Tribunal has considered the circumstances of the parties and finds that they do not reveal compelling reasons for not applying the Schedule 3 criteria, either by themselves or taken collectively. While it accepts that the parties are in a long-standing spousal relationship it finds that very little if any hardship attaches to this aspect as the parties are clearly planning on relocating to Vietnam together if the applicant is forced to leave Australia. Having taken this into account, the Tribunal finds that the overall hardship that may ensue from the parties having to relocate overseas, including financial and psychological hardship, is not such that it constitutes a compelling reason for not applying the Schedule 3 criteria.
The Tribunal is not satisfied that compelling reasons exist for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii), and there is no evidence in front of the Tribunal to show that the applicant meets any of the alternative criteria in cl.820.211.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
David Crawshay
Member

ATTACHMENT - Extract from Migration Regulations 1994
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.

[2022] AATA 5274

4 August 2022

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