Bui (Migration)

[2021] AATA 742

Bui (Migration) [2021] AATA 742 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Hue Bui
Mr Anh Dung Nguyen

CASE NUMBER:  1904821

HOME AFFAIRS REFERENCE(S):          BCC2017/4123525

MEMBER:David Crawshay

DATE:10 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 10 February 2021 at 2:18pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at the time of application – compelling reasons to waive the Schedule 3 criteria – sponsor’s health conditions – financial hardship – long-standing relationship – applicant’s care for the sponsor – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.321; Schedule 3

CASES

Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

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 applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) applied for the visa on 3 November 2017 on the basis of her relationship with her sponsor (collectively, the parties). 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. In this regard, the Tribunal notes that the applicant’s son, Mr Anh Dung Nguyen, has applied for the visa as a secondary applicant. Together, the applicant and the secondary applicant are hereafter referred to as “the applicants”.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(d) because the delegate found that the visa applicant did not satisfy the Schedule 3 criteria and there were no compelling reasons for not applying those criteria. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. The applicants appeared before the Tribunal on 5 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from two witnesses, Ms Thi Be Nguyen and Mr The Duc Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent who appeared at the hearing.

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

   EVIDENCE AT HEARING

7. The Tribunal began by questioning the applicant. It asked her what she considered to be compelling reasons for not applying the Schedule 3 criteria. She said that the parties had been living together as husband and wife for over five years, in that time sharing happiness and sadness. She said that the parties had been living in a genuine relationship for over five years. The Tribunal put to the applicant that, as all relationships need to be found to be genuine in order to satisfy the criteria for the grant of the visa, what makes their claim to have a genuine relationship a compelling reason. She repeated that the parties have a genuine relationship where they share happiness and sadness. She said that she takes care of the sponsor through things such as taking him to see the doctors, getting him changed, massaging his limbs, preparing meals in order to lower his blood sugars, prompting him to take his medications and taking him to the bathroom (she said that he had blurred vision and that he “usually” has a fall). She said that she takes care of expenditure.

8. The applicant told the Tribunal that she has to calm the sponsor down because of his “hot temper” which is brought on by his being sick. She said that she has to endure this in order to make a good family situation. She said that she takes care of the house chores in order to turn it into a tidy place. She said that the sponsor’s children feel safe and do not have to worry when she is beside their father because she is taking care of him when he is ill. She said that the family lives in harmony. She said that they would be very sad if she were to go away from the sponsor and so would the sponsor. She said that the sponsor told her he would have died already if he did not have a wife to look after him.

9. The applicant told the Tribunal that she takes the sponsor to the park to relax, to the Buddhist temple to pray for safety and to the beach.

10. The applicant was asked if she worked, and she said that she is not able to because of a condition attached to her bridging visa. When asked how she derives an income, she said that the sponsor was working on a farm before and has since been very ill and has received unemployment benefits. She said that he could work a little bit but because of severe conditions he stopped work. She said that during the time of COVID-19 he received an increased amount of money that the parties lived on. She said that she also received some money from her younger sibling. She said that the sponsor received $850-per-fortnight but now only received $700-per-fortnight. Later in the hearing, the Tribunal put to her that the Coronavirus supplement on Jobseeker did not run out until the end of March 2021 and she agreed. She was asked why the applicant was on unemployment benefits and not disability payments, and answered that although the sponsor has been ill, there were times when he worked.

11. The applicant broke down the composition of the budget – expenses were $500-per-week comprising power, water, rent, petrol and food and other purchases.

12. The Tribunal asked about the sponsor’s former work, and the applicant told it that he worked on a farm up until five months ago when he became sick due to increased sugar levels. She said that his days were typically from early morning until midday or 1:00pm or 2:00pm. The applicant was asked why his condition had not got better and she said that the sponsor has taken his medication but it is still the same. She said that he cannot go to work because of pains in his legs and high blood pressure. When the Tribunal challenged the applicant over the sponsor’s blood pressure, as it had seen evidence of low blood pressure readings, she said that it rises only when he has a hot temper. The Tribunal pointed out that it had not been noted in the medical summary given to the Tribunal. The applicant said that it can be treated if identified. She said that it is not a serious problem and can be adjusted at home.

13. The applicant told the Tribunal that the sponsor’s children both live in Sunshine – the sponsor’s older son with his girlfriend and the sponsor’s younger son with his mother. She said that they older child works as a manager and the younger one in a bank. She said that they both come around to visit often when they have the time.

14. At this stage, the Tribunal put to the applicant that the sponsor appears to maintain a high degree of independence despite his conditions. On the one hand, the sponsor has a number of ailments, some of which might be challenging, and the applicant claims to care for him through the activities mentioned. On the other hand, however, the sponsor has also been working up until relatively recently in a physical role that involves a number of hours-a-day and there is no evidence to suggest that he could not work in a job albeit not a physical job. It put to the applicant that if she were to go offshore, the sponsor’s children who live close by and who visit often would be able to offer the care while she was overseas.

15. The applicant replied that she and the sponsor have been living together for so many years, loving and helping each other and their children. She said that if the parties had to live apart, the sponsor would be very sad which would make his conditions worse. She said that her son was still attending school (later identified as a vocational college) and they have been living together as a family and overcoming a lot of difficulties over the years. She said that they will be heartbroken. She said that family is above everything else. The Tribunal told the applicant that it accepted there may be some level of hardship involved in being forced to go overseas but such hardship might be temporary and during the time apart the parties can deal with the hardship by staying in touch with each other and by the sponsor seeking support from his sons. The applicant said that the parties are living in hardship and poverty. She said that on top of this is the COVID-19 pandemic which makes travelling much more difficult. She said that she does not have any money and has been living in poverty for a few years. The Tribunal told her that while it understood the parties may not have a lot of money, they were still able to put a sizeable sum into a term deposit account and the secondary applicant had been enrolled in a course that cost upwards of $36,000 over the period of the course. The applicant replied that the money in the term deposit was taken out, and the secondary applicant had to withdraw from the course because of lack of money. The Tribunal replied that it was the nature of term deposits that the money is taken out, and in terms of the student visa, its understanding was that an applicant needed to show evidence of funds. The applicant said that she did not know anything about the term deposit but she is the one taking care of money in the family.

16. The Tribunal put to the applicant that there would be one less person for the sponsor to support financially if she were to return to Vietnam. The applicant told it that during the COVID-19 pandemic the sponsor had an increase in the money he was receiving and they had money coming from her younger sibling in Vietnam and others. She asked the Tribunal to have sympathy for her situation. The Tribunal again put it to the applicant that, as someone who was not bringing in any income by way of salary but claims to have received money transfers from a younger sibling, if she were to leave Australia she will be supported by family and the sponsor would be able to use the money he would otherwise have spent on her for himself. The applicant said that the sponsor’s income is “just that”. She said that she is the one who is economical or thrifty and, with the money from her younger sibling, she has to spend the money wisely. She said that with the sponsor’s income it is just enough for the “bare minimum” of family spending. While the Tribunal agreed that their circumstances made for a challenging financial situation, it said that it does not affect what the Tribunal had earlier said about the applicant going to Vietnam and therefore not needing to be supported by the sponsor. She replied that the parties have just enough for the sponsor’s medication and then they try to spend within the limits of the remaining amount.

17. The Tribunal then considered two reports in respect of the sponsor dated 14 June 2017 and 23 January 2021 from a clinical counsellor, Mr Harry Malos. These reports are each titled “Psychological Report”. The Tribunal commented on the fact that the January 2021 report does not make a diagnosis in respect of sponsor and that, while it states that the June 2017 report had identified anxiety and depression, no identification could be found. The applicant told the Tribunal that she lives with the sponsor and he sometimes gets mad. At this point, the applicant’s representative told the Tribunal that the June 2017 report (on page 2) had said that the sponsor was extremely anxious and frightened and highly vulnerable to generalised anxiety disorder (GAD). The Tribunal replied that it could not see any link between Mr Malos’ comment about the sponsor being anxious on the one hand and anxiety or GAD on the other. It said that it did not consider itself to be pedantic as people can be anxious and yet not suffer from anxiety. It said that while Mr Malos may have identified anxious behaviour, he has not identified anxiety or depression, let alone diagnosed these conditions. The representative submitted that Mr Malos would not have gone on to talk about GAD if he did not feel there were some symptoms. The Tribunal responded that it felt Mr Malos was talking in a general sense about people like the sponsor. It said that while Mr Malos had said that the sponsor is highly vulnerable to GAD, this was not necessarily the case. Furthermore, it said, Mr Malos’ observation was based on what had been reported to him and had not been diagnosed. It repeated that it did not think that anxiety and depression were identified in the June 2017 report. The representative suggested that the Tribunal should ask Mr Malos whether he had identified anxiety and depression, to which the Tribunal replied that it thought the June 2017 report spoke for itself. In relation to the January 2021 report, it suggested that there had been a mischaracterisation of an identification of those conditions.

18. The Tribunal said that, even if it were to accept that such an identification had been made, it was minded to not put much weight on the reports because there had been no diagnosis made and they had been based on self-reporting. The representative submitted that there was another reference in the January 2021 report (on page 2) to depression and anxiety under the hearing “Sedentary Lifestyle or Inactiveness” [emphasis in original] and again made the point that Mr Malos would not have used those words if he did not identify those conditions in the sponsor. The Tribunal responded by pointing out that the references to depression and anxiety follow directly on from references in a WHO report to inactivity and that this inactivity might lead to anxiety and depression but it could not divine the link between this reference to depression and anxiety and the sponsor. The representative took the Tribunal’s attention to page 3 of the January 2021 report which spoke about the sponsor becoming frustrated, stressed and highly anxious. The Tribunal responded that these references came from the sponsor himself. The representative pointed to a reference on page 4 of the January 2021 report to the sponsor showing behaviour of hyperarousal. It acknowledged that Mr Malos had identified such behaviour.

19. The Tribunal shared its concerns about the reports, saying that it would not look to put much weight on them. It said that this was not only due to the quality of the report (the fact that there had been no diagnosis made) or its author (being a clinical counsellor and not a psychologist or psychiatrist), but also because the sponsor has a long medical history and nowhere in that history is there a reference to psychological conditions, and there has been no evidence submitted of the sponsor taking any medication in response to any psychological condition. The applicant responded that she has had to put up with his moods. She said that there has been a level of abnormality up to a point where the sponsor has been yelling and screaming at her and she has to keep quiet and take it. She said that recently it has been continuous. At this point, the representative submitted that the lack of previous history of psychological conditions should not be held against the applicant and that medical conditions are constantly being discovered. He said that, just because there has been no diagnosis, this is no reason for him not suffering from psychological conditions. The Tribunal put to the representative that, on balance, the evidence does not sustain a finding that he suffers from psychological conditions, and that the absence of evidence suggests to it that, even if he did have a condition or conditions, he would be able to manage these during the period when the applicant was overseas. The representative submitted that the two reports of Mr Malos were exploratory in nature and he had only begun treating the sponsor recently and has requested further treatments. The Tribunal told the representative that it was required to assess the evidence which can come in different forms and when it comes to weighting that evidence there are principles to follow.

20. The representative provided some responses to earlier evidence given by the applicant. He said that while the applicant told the Tribunal that the sponsor could obtain employment in a non-physical job, he has been a farmer most of his life and would have great difficulties finding another job. The Tribunal responded that its questioning in this area was intended to establish whether the sponsor retained some level of independence. The representative submitted that sending the applicant overseas in the present circumstances may result in her application taking four-to-five years as there are no applicants coming into Australia from overseas. The Tribunal queried the figure of four-to-five years which it had not seen. It told the representative that it believed the present advice was that applications take around two years and that, while timeframes may increase, they may also stay the same or even decrease based on other factors. It said that there is a lot of water to go under the bridge in the two years and a lot can change.

21. The applicant said that the sponsor has been very sick, getting mad and forgetting things and that she has to put up with those things. She said that she has to calm him down if he is under stress. She said that the parties’ financial situation is difficult and that while their children come to visit they have to take care of themselves financially and the parties have to strive for themselves financially. She said that she has to spend money wisely, including the money she receives from her younger sibling in Vietnam. She said that the sponsor’s income from his unemployment benefits is just enough for food.

22. The Tribunal then questioned the sponsor. It asked him what he considered to be compelling reasons for not applying the Schedule 3 criteria. He responded that he has to beg the applicant earnestly to stay back as he is not very well. He listed his conditions, including two eye operations, osteoporosis on his spine, high blood pressure and fluctuating sugar levels. He said that at the moment he has problems with his two eyes and need the applicant to help him with showering, with meals and in other ways. He said that he is receiving two injections-a-year to help with the pain. He said that he has pains in both shoulders, arms and legs that occur because of his blood sugars and these areas need to be massaged. He said that he was prescribed Panadeine Forte by his GP for the pain.

23. The sponsor said that he had been living with the applicant for five years and that if it were not for the applicant he would not have been able to live until now. He said that two years ago his condition had not been as bad but for the last year it had, due to a high level of sugar. He said that, because of this, he becomes angry very easily and quickly and takes it out of the applicant. He said that fortunately the applicant is a nice and gentle person.

24. The Tribunal then questioned the secondary visa applicant. He told it that he wants his mother and father to be a family in Australia. He said that they are living together and are happy together. He said that the applicant is happy to help the sponsor. He said that the sponsor has high blood pressure as well as other physical and mental problems such as depression and anger, but the applicant is always there to help him get up in the morning and also to visit friends.

1. The Tribunal then questioned the witnesses. Ms Nguyen said that the compelling reason was that the parties love each other very much and should be able to stay together to care for one another. She said that she organised their wedding at her house. She said that the applicant had sometimes called her to confide in her that the sponsor has had a lot of medical problems. She said that she consoles the applicant. Mr Tran told the Tribunal that his friend the sponsor has been very sick and he would like the applicant to stay back and care for the sponsor.

2. The representative offered some closing oral submissions. He said that the parties had known each other for five years during which they had been married for three-and-a-half years. He said that they had joined their families together and their children all get along. He said that there was no question of the genuineness. He said that the parties are accepted by their friends and family and the Vietnamese community.

3. The representative said that the sponsor has suffered from physical and mental conditions. In relation to physical, the full summary of his medical history showed osteoporosis, asthma, cataracts, osteoarthritis and acute back pain. In terms of mental, he said that the sponsor suffers from depression, anxiety and jumping to anger. He said that the sponsor suffers from sleeplessness, tiredness and mood behaviour. He said that the sponsor has shown behaviour of hyperarousal, including in his office. The representative said that the applicant is of importance to get the sponsor dressed in the morning and with toileting, meals and keeping track of the multitude of medications. He said that the sponsor’s visits to Mr Malos have not been “one-off”, and that he has seen him twice with another appointment booked for next week. He said that Mr Malos’ reports show that the applicant provides hour-to-hour and day-to-day support and that she displays reliability and responsiveness. He said that the applicant helps the sponsor when he is feeling down or anxious, or when his anger flares up. He said that if this support were taken away he would be left with no one for four years as his children cannot provide that day-to-day support.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the Schedule 3 criteria are satisfied 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?

5. 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).

6. 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

7. 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.

8. The evidence in front of the Tribunal is that the applicant held a Visitor visa (FA-600) until

   
   

   12 April 2015, which is the relevant day. The evidence is that the applicant applied for the present visa on 3 November 2017, which was more than 28 days after the relevant day.

9. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

   Compelling reasons

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

11. 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.

    Genuineness of the relationship

12. The Tribunal acknowledges the evidence presented in support of the existence of a genuine relationship between the parties. This evidence includes a certificate for a marriage that took place in 20 May 2017, declarations and letters from third parties, financial information such as bank account statements, lease agreements, photographs of the parties by themselves and with friends, bills and other correspondence addressed to the parties, and the parties’ relationship statements. Finally, the Tribunal acknowledges the parties’ testimony at hearing along with the testimony of the witnesses.

13. While the Tribunal acknowledges this evidence, it has chosen not to make a finding on whether the parties’ relationship is genuine and continuing. The Tribunal notes in this regard that a genuine relationship between the parties would not, of itself, satisfy it that compelling reasons exist for not applying the Schedule 3 criteria – not least because a necessary criterion for the grant of a partner visa under cl.820.211(2)(a) and cl.820.221(1)(a) is that the applicant be found to be the spouse of the sponsor which requires a finding that the relationship between the parties be genuine and continuing (among other things). This was explained to the parties at hearing. Moreover, while there may be some level of hardship experienced by parties who are separated due to the applicant applying for a partner visa offshore, such separation is common to most if not all parties in this situation and some level of hardship would be expected to be involved in parties to a genuine relationship needing to separate for a period. In this way, the fact of the separation or even the hardship involved would not, of itself, satisfy the Tribunal that compelling reasons exist for not applying the Schedule 3 criteria, and there would need to be something about that separation or hardship that made it so.

    Long-standing relationship

14. Although the Tribunal has above chosen to not make a finding on the genuineness of the parties’ relationship, it is mindful that a relationship that is a long-standing relationship of two years or more may justify not applying the Schedule 3 criteria due to the hardship that results if those criteria were applied: Explanatory Statement, Migration Regulations (Amendment) 1996, No. 75, cl.10. A cursory glance over the evidence of the parties’ claimed relationship shows that they claim to have met in August 2015 and to have committed to a shared life together to the exclusion of all others in October 2015. Assuming for present purposes that their relationship was and continues to be genuine, the Tribunal finds that the parties had most likely been in such a relationship for a period of just over two years in November 2017 when the visa was applied for. With the passage of time between the date of application and now, the parties’ relationship has continued for five years. Notwithstanding that the Tribunal accepts for present purposes that the parties’ relationship is a long-standing one, it is not satisfied that this fact alone amounts to compelling reasons for not applying the Schedule 3 criteria. Other incidents of the separation and hardship, either individually or cumulatively, must cause the Tribunal to be satisfied that those compelling reasons exist. These are explored below.

    The sponsor’s physical conditions

15. The Tribunal has considered whether there are compelling reasons stemming from the sponsor’s physical conditions.

16. At hearing, the parties testified to the sponsor suffering from a host of physical conditions, which are detailed above. Additionally, documentary evidence in the form of medical reports and numerous other medical documents substantiate that the sponsor has had a host of problems over the years and the Tribunal accepts that he has. At hearing, the parties told the Tribunal that the applicant helps the sponsor with tasks to do with ambulation, with toileting and with meals. The applicant told the Tribunal that she helps the sponsor to remember which medications to take. Based on this evidence, the Tribunal accepts that the applicant offers some assistance to the sponsor owing to his physical conditions and this is given some weight.

17. However, the Tribunal has also considered and given weight to evidence which shows that the sponsor appears to have retained a large degree of independence despite these conditions. The applicant at hearing said that the sponsor had only relatively recently ceased employment on a farm, and that this was due to his sugar levels. The applicant told the Tribunal that his hours were from early morning until midday, 1:00pm or 2:00pm and were therefore not insubstantial. Moreover, the applicant told the Tribunal that she considered the sponsor could work in another job, albeit not a physical job. This evidence – of the sponsor’s previous job in a physical setting (which it was claimed he gave away due to his sugar levels and not due to other physical conditions) and of the fact that the applicant accepts he could attend a workplace away from her – strongly suggests to the Tribunal that the assistance offered by the applicant is not extensive and may be able to be performed by someone who does not necessarily live with him. In this regard, the Tribunal has also had regard to other evidence demonstrating that the sponsor’s sons live nearby and visit him often. There has been little evidence provided to show why these people could not offer the assistance he requires while the applicant is offshore, and the Tribunal believes it is open to it to conclude that they could provide such assistance.

18. The Tribunal has considered and weighed this evidence but finds that there are no compelling reasons resulting from the sponsor’s physical conditions and the applicant’s care and support of him.

    The sponsor’s psychological conditions

19. The Tribunal has considered if there are compelling reasons due to the sponsor’s claimed psychological conditions.

20. As can be seen from above, the Tribunal and the applicant’s representative engaged in extensive but respectful discussions about the contents of the two reports of Mr Malos and the amount of weight to be attached to them. The particulars of this discussion do not need to be repeated here – it suffices for the Tribunal to note that it considers that no diagnosis was made about any psychological condition that the sponsor claims to suffer from, including anxiety (or GAD) and depression. It also considers that, despite Mr Malos claiming otherwise in his January 2021 report, he had not expressly identified anxiety or depression in the sponsor. The most that could be said was that he identified the sponsor’s anxious behaviour. While the Tribunal accepts that he identified behaviour of hyperarousal, again there was no diagnosis of this. Moreover, much of the content contained within the reports was the result of the sponsor’s self-reporting and there was no attempt to verify these claims by way of any tests. For these reasons, because Mr Malos is not a psychologist or a psychiatrist, and because there is no other evidence of the sponsor suffering from any psychological conditions including in his extensive medical summary and from his medication prescriptions, the Tribunal places only minimal weight on the reports given by Mr Malos as evidence of the sponsor’s claimed psychological conditions and the conclusions he makes in those reports. This includes the part of the January 2021 report where Mr Malos stated that he strongly recommends that the applicant be allowed to stay in Australia for compelling and compassionate grounds.

21. Although the Tribunal has made the above finding, it does not discount the evidence of the parties regarding the sponsor’s behaviour. It accepts that he may suffer at times from the stress that may be provoked by his physical conditions and other stressors. It accepts that he may at times be quick to anger. It accepts that the applicant may assist him in calming down. However, the Tribunal is not satisfied based on the evidence that these manifestations of his behaviour are serious enough to warrant the applicant needing to remain onshore, or that he could not be able to manage his behaviour with the help of his family in Australia and the applicant over the telephone or through social media, or through counselling or some other low-level medical intervention.

22. The Tribunal is not satisfied that there are compelling reasons related to the sponsor’s claimed psychological conditions and the applicant’s ability to deal with these.

    The sponsor’s financial situation while separated

23. The Tribunal has considered the sponsor’s claimed financial situation and whether this would amount to a compelling reason.

24. At hearing, the applicant told the Tribunal that she has been living in poverty for the last few years. She said that the money that the sponsor brings in from his Jobseeker payments is only enough to cover food expenses. She said that she is thrifty with the parties’ finances and spends money wisely. The Tribunal notes testimony from the applicant that she receives money from her younger sibling in Vietnam although it has not seen other evidence that can substantiate her claims in this regard.

25. The Tribunal accepts that the parties’ financial situation may be difficult, although it does not believe the evidence sustains a finding that they have been living in poverty. As pointed out to the applicant at hearing, the parties had put a substantial sum of money ($5,000 according to evidence on the Tribunal file) into a term deposit, and the applicant’s son had previously been granted a student visa which typically involves being able to provide proof of access to funds. Furthermore, evidence in the form of bank statements from the parties’ joint account and from the sponsor’s personal account shows that these accounts have very rarely, if ever, been in negative balance.

26. The Tribunal firmly believes that the sponsor would benefit financially from having the applicant return to Vietnam as he would have one less person to support through his income. In this regard it notes that the applicant presently claims not to derive any income through wages but does claim to receive money through a younger sibling in Vietnam. The Tribunal acknowledges that the applicant claims to be thrifty with the parties’ finances and wise in her spending; however, it considers that the sponsor would be able to manage his spending and modify his lifestyle if needed to suit any change that may come from the applicant having to leave his household.

27. Based on the evidence in front of it in relation to the sponsor’s anticipated financial situation while the applicant returns overseas, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria.

    The estimated length of time for offshore visa processing

28. The Tribunal has considered if there are compelling reasons relating to the length of time for it takes for any offshore partner visa lodged by the applicant to be processed.

29. This submission was one made by the applicant’s representative at hearing. According to this submission, present circumstances (presumably, the COVID-19 pandemic) may result in the applicant’s visa application taking four-to-five years due to the fact that there are no applicants entering Australia from overseas and this extended period of time during the processing stage of an offshore visa would be a compelling reason. As it did at hearing, the Tribunal challenges the figure given by the representative of which it is not aware based on any evidence in front of it. It does not know, for example, the source of this figure or how it was calculated. In the absence of this evidence, the Tribunal considers this figure as purely speculative and prefers to believe that processing would take around two years at the most – in line with Department advice.[1] The Tribunal considers this is a reasonable period of time to allow for processing of an offshore partner visa based on the parties’ circumstances.

    [1] Processing times for the Subclass 309 (Partner (Provisional) Visa) are as follows: 75% of applications: 19 months; 90% of application: 24 months:

30. The Tribunal has not established compelling reasons here.

    Other issues

31. At the Department stage, it was submitted that a compelling reason for not applying the Schedule 3 criteria was the close relationship that had developed between the applicant and the sponsor’s two sons and the considerable harm to these people from being separated from the applicant. Evidence at the time and since then does not satisfy the Tribunal that such harm would result from the applicant having to leave Australia to return to Vietnam. Although the Tribunal has seen a short letter written by one of the sons in favour of the parties’ relationship from May 2018, the Tribunal notes that the sponsor’s two sons are of adult age, live away from the parties and appear to rely on people other than the applicant for their support – in the case of the sponsor’s younger son, his mother, and in the case of the sponsor’s older son, his girlfriend. The Tribunal is not satisfied that the applicant’s relationship with the sponsor’s sons constitutes a compelling reason.

    CONCLUSION

32. The Tribunal has considered the circumstances of the applicant individually and cumulatively. The Tribunal finds that the applicant’s circumstances, including those related to the parties’ claim to be in a genuine relationship that is long-term, the care and support offered to the sponsor by the applicant, the sponsor’s financial situation while separated, the estimated time it takes for processing of any offshore partner visa and the applicant’s relationship with the sponsor’s two children of themselves and put together do not rise to the level of being compelling reasons for not applying the schedule 3 criteria.

33. 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).

34. There is no evidence in front of the Tribunal to show that the applicant meets any of the alternative criteria in cl.820.211.

35. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

36. Because the applicant does not satisfy the primary criteria for the grant of the visa, the secondary visa applicant is not able to satisfy cl.820.321 and he has made no claims to satisfy the primary criteria.

    DECISION

37. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    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.