Bui (Migration)

[2021] AATA 4894

Bui (Migration) [2021] AATA 4894 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Bach Ngoc Bui

REPRESENTATIVE:  Mr Gareth John Lewis

CASE NUMBER:  1821994

HOME AFFAIRS REFERENCE(S):          BCC2017/1638502

MEMBER:Russell Matheson

DATE:22 December 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(c) of Schedule 2 to the Regulations and;

·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 22 December 2021 at 11:12am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling reasons to waive limitation – valid marriage and genuine long-term relationship – relationship with minor child from previous marriage – business, community and cultural ties – hardship if visa cancelled – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J, Schedule 2, cls 820.211(c), 820.212(2)(c), 820.221(4)

CASE
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a female national of Vietnam born in September 1980. She applied for the visa on 8 May 2017 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 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 applicant provided the Tribunal with a copy of the primary decision showing that the delegate refused to grant the visa on the basis that the applicant did not satisfy             cl 820 212(2)(c) which requires the applicant to be sponsored by the sponsor at the time of application, and cl 820.221(4) which requires the sponsorship to continue; to have been approved by the Minister and be still in force.

4. The delegate refused to grant the visa because the sponsor did not satisfy the sponsorship requirements.

5. Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. Rather, on 21 December 2021, the applicant and sponsor appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended by video. The representative Mr Lewis an Australian Legal Practitioner (No:5510887) also attended the hearing by video. 

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

   Background

7. The sponsor arrived in Australia in 1990 for a family reunion. The sponsor obtained permanent residency in 1992. The sponsor sponsored his first wife in 1992 and she was granted a partner visa and obtained permanent residence. The sponsor had a child (daughter) with his first wife in 1997. In 2005 the sponsor’s relationship with his fist wife broke down and they divorced. In January 2006 the sponsor married his second wife, he sponsored her partner visa, and she was granted permanent residency in Australia. The sponsor had a child (son) with his second wife in 2008. The sponsor separated from his second wife in 2011 and divorced her in 2013.

8. The sponsor claims to have met the applicant in June/July 2016 and formed a romantic relationship and they married in May 2017 and the applicant was granted a Bridging Visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form, and evidence provided to the Department and Tribunal in relation to the application.

10. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused the application because it says the sponsor has previously successfully sponsored two spousal partners to Australia and so is ineligible to be a sponsor. The delegate found there were no compelling reasons to waive the sponsorship limitation.

11. The applicant and sponsor gave their oral evidence separately and jointly. The parties provided written and oral evidence about the formation of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, business arrangements, friends, and household arrangements. The Tribunal found their evidence to be genuine and credible. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below.

12. The delegate has not made an assessment of the evidence in respect of the requirement that the applicant is required to be the spouse or de facto partner of the sponsor. Having regard to the President’s Direction Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate.

13. The issue in the present case is whether the sponsorship of the applicant’s visa should be approved because there are compelling reasons affecting the sponsor.

    Is the applicant sponsored?

14. Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include cl 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident, or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

15. A copy of the applicant’s passport is on the Department’s file. The Tribunal finds the applicant has turned 18. A copy of the sponsor’s passport is on the Department’s file. The Tribunal finds the sponsor is an Australian citizen.

16. The Department’s file contains the sponsorship Form 40SP lodged with the application and signed by the sponsor. The Tribunal finds that she completed the requisite sponsorship form and the applicant was, at the time of application, sponsored by the sponsor.

17. Therefore, at the time of application sponsorship the requirement in, cl 820.211(2)(c) is met.

    Should the sponsorship be approved?

18. At the time of the decision, cl 820.221(4) requires that the sponsorship mentioned in            cl 820.211(2)(c) continues and has been approved by the Minister and is still in force.

19. Sponsorship approval is subject to limitations contained in reg 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 reg 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 reg 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 reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

20. Relevantly, reg 1.20J of the Regulations 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. Under reg 1.20J(1), a sponsor is limited to a total of two approved sponsorships or nominations that lead to the grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).

21. The delegate says the present case is affected by the sponsorship limitation in reg 1.20J because it is the sponsor’s third sponsorship. Departmental records confirm the sponsor has sponsored two previous spousal/de facto partners: the first sponsorship was in support of This Thanh Truc Nguyen in 1992 and the second sponsorship was in support of Le Khinh Tran in 2010 which both resulted in the grant of a permanent visa.

22. The Tribunal accessed the Department’s records (ICSE) to confirm the outcomes of the sponsor’s previous sponsorships. The Department’s records confirm the sponsor’s two previous sponsorships were approved and both sponsored Partner visa applications were granted which also resulted in the grant of permanent visas.

23. The Tribunal finds the sponsor has held two previously approved sponsorships that each led to the grant of a Partner visa. He has made a third application regarding sponsorship of the applicant whom he married on 5 May 2017 in Australia. The sponsor’s sponsorship of the applicant must not be approved unless there are compelling circumstances affecting him.

24. As acknowledged by the parties at the hearing, the sponsor has previously had two sponsorships or nominations.   

25. The Tribunal considered if the sponsorship should be approved because of compelling circumstances affecting the sponsor.

26. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

27. The sponsor provided evidence that his previous relationship were longstanding relationships and submits that his new relationship is longstanding in nature is genuine and continuing to the exclusion of all others. The parties gave oral evidence and provided a reasonable amount of documentary evidence and a significant amount of photographic evidence about the development of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, business arrangements, friends, household arrangements, social activities, and love for each other. They also provided multiple statutory declarations (Form 888) from friends attesting to the genuineness of their relationship and their own individual statutory declarations. The Tribunal is satisfied that they represent themselves to others as being married. The parties provided evidence of their commitment to the relationship and a strong degree of companionship and emotional support and a belief that their relationship was long-term. The Tribunal accepts that the parties are legally married and have been in a spousal relationship for over four years. 

28. The parties gave evidence and submit that they have started a beauty business from their residential dwelling at Canley Heights and jointly work and manage the business. The parties stated that their financial arrangements are intertwined, and they use the income from the business for their daily expenses, household bills and mortgage payments. The sponsor stated that he has a mortgage of $580,000 and the house was valued at over $800,000. The sponsor stated that he has lived in Australia for over 31 years, has no contact with his siblings living here and has no relatives in Vietnam and it would be impossible for the parties to establish themselves in Vietnam as they have no networks for gainful employment and combined with the impacts of COVID-19 they would face significant financial hardship if compelled to relocate overseas. The Tribunal questioned both parties about what they would do if the visa were not granted. The sponsor laid out a plan that demonstrated he had thought the possibility through; he made a series of observations about how he would struggle to establish himself and make a living in Vietnam and provide for his wife and son who requires his financial assistance some time into the future. The parties gave oral evidence of having evidence of establishing substantial business ties in Australia although they did not provide company documents or ASIC searches. The Tribunal found their evidence on face value genuine and credible. Furthermore, the nature of the detriment should the applicant be required to depart Australia will be both emotional and financial to the parties if the applicant returned to Vietnam resulting in the closure of their businesses and limited opportunity for employment.

29. The sponsor gave evidence that his relationship with his two children would be adversely impacted if he was required to relocate to Vietnam to live with the applicant.  He further stated that his son is a minor (13 years old) and he provides financial support to his son through a mutual agreement with his second wife. The sponsor also conceded that this is a minimal amount, and he has had discussions with his son regarding future financial support  if he attends university. The parties gave evidence that they have a strong degree of emotional connection with the sponsor’s children and spend significant periods of time with the sponsor’s daughter as she lives in close proximity. The sponsor maintains that he has maintained his relationship with his son during COVID-19 via telephone and provided evidence of payments he has made to his second wife through electronic fund transfers. The sponsor further submits that there is a lot of uncertainty as to his ability to be able to visit his son and daughter in Australia if living overseas during any continuation of COVID-19. The Tribunal accepts that there would be a significant degree of emotional hardship suffered by the sponsor if he were to relocate overseas that would be detrimental to him maintaining a meaningful relationship with his children and that his son would also suffer a limited degree of financial hardship.

30. The sponsor provided evidence that the parties have significant community and cultural ties with the Australian community. The applicant has previously worked as a teacher at the Canley Vale Private Language School and their immediate social circle consists mainly of people from the school who they socialise with regularly. This is supported by multiple statutory declarations and significant photographic evidenced provided by the parties. The parties claim that relocating back to Vietnam would have an impact on their mental health and wellbeing not being able to maintain their community ties in Australia firsthand. The Tribunal accepts that the parties have significant community and cultural ties in Australia, and this would have a significant impact on their mental health and wellbeing, and it would be difficult to adjust socially if they were compelled to relocate overseas.      

31. The Tribunal is satisfied the circumstances affecting the sponsor are, when considered individually and cumulatively, compelling circumstances so as to approve the sponsorship.

32. The sponsors signed and dated sponsorship form acknowledges he consents for the Department to disclose to the applicant any conviction for relevant offences. There is nothing before the Tribunal to suggest the sponsorship is no longer in force.

33. The Tribunal is satisfied that there is no information before it that suggests that the sponsorship limitations of reg 1.20K, reg 1.20KA or reg 1.20KB prevent approval.

34. Having regard to all of the circumstances the Tribunal is satisfied there are compelling circumstances affecting the sponsor, and the sponsorship can be approved despite the operation of reg 1.20J(1).

35. On the evidence before the Tribunal, the requirements of cl 820.211(2)(c) and cl 820.221(4) are met.

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

    DECISION

37. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(c) of Schedule 2 to the Regulations; and

    ·cl 820.221(4) of Schedule 2 to the Regulations.

    R

    ussell Matheson

    
    

    Member