Chhit (Migration)

[2021] AATA 5153

Chhit (Migration) [2021] AATA 5153 (14 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sreynich Chhit

CASE NUMBER:  1826168

HOME AFFAIRS REFERENCE(S):          BCC2016/1298514

MEMBER:Margie Bourke

DATE:14 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 14 December 2021 at 8:16pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling circumstances affecting sponsor – long-standing relationship and valid marriage not compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(1)(a), Schedule 2, cls 820.211(2)(c), 820.221(4)

CASES
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77
Nagaki v MIBP [2016] FCCA 1070

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for 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 applied for the visa on 29 March 2016 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(c) because the delegate was not satisfied the applicant met the sponsorship requirements of r.1.20J.

4. The tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The tribunal had regard to the circumstances of the applicant, and the nature of this review. The tribunal considered that the conduct of the hearing in this matter by video would allow the applicant a fair opportunity to give evidence and present arguments, and would allow the tribunal to conduct a fair and effective hearing and enable the tribunal to properly assess the evidence before it. The tribunal noted this review did not require a large amount of documents to be put to the applicant during the hearing. The restrictions of in-person hearings as a consequence of the pandemic was also a consideration, and the tribunal was of the view that unnecessary delay waiting for an in-person hearing should be avoided. For all the above reasons the tribunal considered this was an appropriate matter where the hearing could be conducted by way of video. The applicant was invited to attend a hearing by video. The tribunal did not receive any objection to the hearing proceeding by way of video from the applicant.

5. The applicant appeared before the tribunal on 2 December 2021 to give evidence and present arguments. The tribunal also received evidence from the applicant’s sponsor who attended the hearing by video with the applicant. The tribunal also heard evidence by telephone from three witnesses.  The tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

6. The applicant was represented in relation to the review. The representative attended the tribunal hearing by telephone. The applicant was offered a postponement until such time as her representative could also attend the hearing by video. The applicant wished for the matter to proceed as scheduled on 2 December 2021. The representative also indicated she was comfortable to participate by way of telephone connection to the hearing.

7. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPONSORSHIP (cl 820.211(2)(c), 820.221(4))

   Is the applicant sponsored?

8. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 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).

9. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

10. Approval of sponsorship 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.

    Time of application :- cl.820.211(2)(c)

11. There is no sponsorship form on the Department file provided to the Tribunal, however the details of the sponsor are clearly listed on the application form which was lodged online on 29 March 2016. The tribunal is satisfied that the sponsor is recorded in the application form as Nick Yin, an Australian citizen and his year of birth is 1980. The tribunal has also considered the submissions and documents, including the Department’s decision record dated 22 August 2018, and is satisfied as to the identity and age of the sponsor.

12. At the time of application, the tribunal is satisfied that the applicant is sponsored by the sponsor who is a person over the age of 18. The tribunal is therefore satisfied that the applicant meets the sponsorship requirements at the time of application for the purpose of satisfying cl.820.211(2)(c).

    Time of decision : – cl.820.221(4)

13. Cl.820.221 requires that the sponsorship mentioned in cl,820.211(2)(c) has been approved by the Minister and is still in force. For the purpose of this review the tribunal must determine that the sponsorship is capable of being approved.

14. Regulation 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a 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 5 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: r.1.20J(2).

15. 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.

16. In the application for the visa, the applicant recorded the sponsor’s previous relationships. The applicant recorded that the sponsor had sponsored two persons in two previous sponsorships. These included [Ms A] to whom the sponsor was married on [date] and separated on [date] and ultimately divorced, and [Ms B] to whom the sponsor was married on [date] and separated on [date], and ultimately divorced. The applicant recorded in the application form that both sponsorships resulted in the grant of a visa to the sponsored spouse of the sponsor.

17. In the hearing the applicant, and her representative confirmed that the sponsor had previously sponsored two persons in sponsorships that led to the grant of a visa or permission for those two persons to remain indefinitely in Australia. The applicant and her representative stated they conceded that the sponsor had reached the limitation on approval of sponsorships set in r.1.20J prior to the application for the visa which is the subject of this review.

18. The tribunal must consider whether it can approve the sponsorship of the applicant for the visa despite the fact the sponsor has reached the limitation on approval in sponsorships set in r.1.20J(1)(a); that is the tribunal must consider whether it is satisfied that there are compelling circumstances affecting the sponsor.

19. The applicant had provided evidence of the relationship to the Department, which included statutory declarations, statements and financial documents. The applicant provided the tribunal with evidence of her relationship with the sponsor. This included evidence that the applicant and sponsor resided together, socialised together and travelled together.  Specifically the evidence provided included statements, photographs, travel itinerary and travel bookings and insurance, holiday photos, photos with friends and wedding photos, bank statements, car insurance, invoices, utility bills and receipts, joint tenancy agreements, football tickets and other documents.

20. The tribunal accepts that the parties married on 13 March 2016. The applicant and sponsor state they commenced residing together in 2015, and although there is no documentary evidence to support this claim, the tribunal accepts the parties resided together prior to the marriage.  The tribunal accepts that the applicant and sponsor have moved addresses several times, initially living in rooms in shared houses, and are currently the joint tenants of a house with rooms available for other people to rent. The tribunal accepts that the applicant initially worked at a farm and has worked at a factory since 2018. The tribunal accepts the applicant’s evidence that the factory was deemed essential work, and the applicant continued to work although at reduced hours, during the pandemic.

21. The tribunal accepts that the sponsor is not currently employed and has been in receipt of Centrelink payments since the end of 2019. The tribunal accepts the evidence of the sponsor that he only worked casually “on and off” prior to the pandemic, and previously received Centrelink benefits. The tribunal accepts the evidence of the sponsor that the applicant does the cooking but he helps with some of the housework.

22. The tribunal accepts the evidence of the applicant and sponsor, that the sponsor has no support from family in Australia. The tribunal accepts the evidence of the sponsor and his witnesses, that the sponsor has friends in Australia. The sponsor stated that his family did not support his choice of his first wife, and this led to an estrangement from his uncle with whom he had lived after he migrated to Australia as a teenager. The sponsor stated that his family were right and his first wife was an unsuitable choice. The sponsor stated his relationship with his second wife broke down due to financial trouble. The tribunal accepts that the sponsor does not have children from these two previous marriages. The tribunal accepts that the sponsor has not reconciled with his uncle, and does not have contact with family in Australia. The tribunal has considered the sponsor’s evidence that the applicant, in her relationship with him and in caring and cooking for him, stops him from getting lonely.

23. The tribunal accepts the evidence of the witness Srey Vong, who is a friend of the applicant and works with her at the same factory. The tribunal accepts the evidence that she considers the relationship between the applicant and sponsor is that of a real marriage, and that she has met the applicant’s husband when he has come to their place of work. The tribunal accepts that this witness has not socialised with the applicant and sponsor outside of work.

24. The tribunal accepts the evidence of the friend of the sponsor Phalin Sun, that he has known the sponsor since 2013 or 2014, that he did not attend the wedding as he was too busy, but he is aware the applicant sponsor lived together as husband and wife, and he has visited the couple and shared meals with them.

25. The friend of the sponsor, Dara So, told the tribunal that he had known the sponsor for five or six years and had known the applicant for approximately five years. At this point in the hearing the applicant and sponsor disconnected their video from the hearing but remained on audio. The interpreter continued to interpret for the tribunal as the applicant first swore “F*** Nick!” and then the applicant and sponsor started to discuss with the witness that his evidence was incorrect and that he should be saying that he had known them for longer and how long they had been married. The tribunal assumes that the applicant and sponsor did not know they were still connected to the hearing by video and the member, the interpreter and the representative could all hear what was being said. The tribunal repeatedly advised the applicant she could still be heard.  After a short period of time the applicant and sponsor rejoined their video to the hearing, and the hearing proceeded in an appropriate manner.

26. The applicant and sponsor stated they thought there had been some confusion for the witness with their names (Nick and Chhit). The tribunal discussed with the applicant that it was not appropriate to depart the hearing, and then discuss with the witness what evidence they should be giving to the tribunal. Whilst the tribunal finds that the conduct of the applicant and sponsor in these circumstances was inappropriate and possibly discreditable in relation to proper conduct in hearing and contacting witnesses whilst giving their evidence, the tribunal accepts that the applicant and sponsor reacted spontaneously, and thought the witness had misunderstood the question from the tribunal. The issue in relation to how long the witness Dara So had known the sponsor is not an essential point for an assessment of compelling circumstances affecting the sponsor.

27. The tribunal notes this in the decision record as it is a relevant part of the conduct of the hearing as a whole. The tribunal also notes that it gave no weight to this incident on the tribunal’s assessment of the relevant evidence in the review.

28. The hearing then continued with all participants, and the witness Dara So stated he had known the sponsor for approximately 20 years, and that he had been confused when he stated he had only known the sponsor for 5 to 6 years, and that he was confused because it is a bit noisy. The tribunal discussed with the witness that it could not understand how he could be confused as to how long he had known the sponsor. He stated he was at the applicant’s and sponsor’s wedding, but he could not remember what the applicant wore. After the hearing the applicant sent the tribunal photos of the wedding, with the passport photo of the witness Dara So, and identified the witness Dara So in the wedding photos. The tribunal is satisfied that the witness did know the applicant and sponsor for 5 to 6 years, and did attend their wedding. The tribunal has doubts that the witness may have known the sponsor for approximately 20 years but does not find that this fact is relevant to its consideration of compelling circumstances affecting the sponsor.

29. The applicant told the tribunal that they were trying to have a child together and had consulted a medical specialist for assistance. The applicant stated that she went to see her doctor who referred her to a health professional to have a scan, in 2019. The applicant stated that she was advised that there was nothing physically wrong with her preventing her from conceiving a child. The tribunal accepts that the applicant consulted a doctor in 2019, proceeded to see a specialist, and received a report that she was physically able to conceive a child. The sponsor stated that the applicant is 25 and he is 40 and nearly 41 years of age. He told the tribunal that he would love to have a child and needed to do this soon because of his age. The sponsor stated that after his wife had the medical test that concluded she was able to conceive a child, he consulted a doctor. The sponsor stated that he had previously conceived a child before, with his first wife but the pregnancy was terminated. The sponsor stated that the doctor recommended he have a sperm count test. The sponsor stated that to provide the test for the sperm count he had to go without sex for two weeks and ejaculatory into a jar. The sponsor stated he could not do either of these two things. The tribunal discussed with the sponsor whether it was really important for him to have all children with the applicant if he could not follow these requirements. The tribunal accepts the sponsor’s evidence that he consulted a doctor, was advised to participate in a sperm count test, and the sponsor concluded that he did not wish to, or could not, undertake the sperm count test. The tribunal accepts that the sponsor’s evidence that he did not make any more enquiries of his doctor in relation to alternative ways to undertake the sperm count test or to assess his ability to father a child.

    Conclusions:- compelling circumstances affecting the sponsor

30. I have considered all the evidence that was provided to the tribunal. I am not satisfied that the sponsor’s financial reliance on the applicant because she works and he receives his income through a Centrelink benefit and some rental income from boarders, amounts to compelling circumstances affecting the sponsor for approval of the sponsorship. The evidence before me is that the sponsor has previously worked casually “on and off”, and relied upon an income from his Centrelink benefit.

31. I have considered all the evidence that was provided to the tribunal in relation to the sponsor’s previous relationships. I accept that those relationships did not last. I accept that those relationships did not produce children. The fact that the sponsor had two previous marriages does not amount to compelling circumstances affecting the sponsor for approval of the sponsorship.

32. I have considered the evidence that the sponsor’s relationship with his uncle with whom he lived in Australia after he migrated as a teenager has broken down, after the sponsor’s first [marriage]. I accept the sponsor has not reconciled his relationship with his uncle since [then]. I am also satisfied based on the sponsor’s evidence, and the attendance of two witnesses in the hearing, who were introduced as friends of the sponsor, that the sponsor has established friendships in Australia. I am not satisfied that the fact of the sponsor has not reconciled his relationship with his uncle over the last 17 years, that the sponsor is isolated from other forms of relationships or friendships. I am not satisfied that the sponsor’s circumstances in not having contact with family members in Australia amounts to compelling circumstances affecting the sponsor for approval of the sponsorship. I am not satisfied that the sponsor’s evidence that his relationship with the applicant and the care, companionship and cooking she provides, amounts to compelling circumstances affecting the sponsor for approval of the sponsorship.

1. I have considered that the applicant and sponsor stated they were trying to have a child together and had consulted medical specialist for assistance. I have considered the evidence before me that the applicant and sponsor sought medical assistance in 2019. I accept the applicant undertook medical tests in relation to her capacity to conceive a child. I accept that the sponsor did not give priority to undertaking the sperm count test in 2019 or since. I accept his evidence that he gave preference to maintaining his sexual life rather than abstaining for two weeks and did not seek medical assistance in relation to his difficulty to ejaculate into the jar. I am not satisfied that the sponsor’s desire to have a child with the applicant is high on his list of priorities, and I am not satisfied that it amounts to compelling circumstances affecting the sponsor for approval of the sponsorship.

2. I have considered that in the Department’s decision record dated 22 August 2018, the delegate records that in departmental policy the relationship between the applicant and the sponsor, if it is a long-standing, may be considered compelling circumstances affecting the sponsor. The tribunal is not bound by Departmental policy. The tribunal does accept that the applicant and sponsor are in a long-standing relationship and have been married since March 2016. The tribunal does accept that the applicant and sponsor are in a genuine relationship. However the tribunal has considered the decision of the Federal Circuit Court of Australia in Nagaki v MIBP [2016] FCCA 1070, in which when considering compelling circumstances affecting the sponsor for the purposes of r.1.20J(2), the court found the definition of long-term partner relationship in r.1.03 had no statutory relevance or application to whether there are compelling circumstances affecting the sponsor. Further the judgement recorded that the tribunal was not obliged to apply or consider the definition of long-term partner relationship in determining whether there were compelling circumstances affecting the sponsor that existed for the purposes of r.1.20J(2). The judgement discussed that in ordinary circumstances if an applicant and sponsor had been in a relationship for a specified period of time, for example two years or three years, the applicant is not automatically entitled to have a sponsorship approved because of the existence of the length of the relationship. In the judgement it is clarified that the applicant needs to satisfy the tribunal that there were compelling circumstances affecting the sponsor, and if the tribunal was so satisfied then the tribunal needed to exercise the discretion conferred by r.1.20J(2) to approve the sponsorship.

3. The tribunal in this review finds that the applicant and sponsor are in a long-standing relationship. However, the tribunal applies the principles espoused in Nagaki v MIBP, and has made a decision on the facts before it that the long-standing relationship between the applicant and the sponsor does not amount to compelling circumstances affecting the sponsor.

4. The tribunal has considered all the above matters both collectively and individually, and is not satisfied that there are compelling circumstances affecting the sponsor in this review.

5. For all the above reasons the tribunal finds that there are not compelling circumstances affecting the sponsor, and therefore the tribunal does not approve the sponsorship of the applicant for the visa in this review.

6. The tribunal finds that the limitation on approval of sponsorships as set out in r.1.20J(1)(a) applies and the sponsorship cannot be approved.

7. For these reasons, the sponsorship mentioned in cl.820.211(2)(c) has not been approved, and the applicant does not meet the requirements of cl.820.221(4).

8. On the evidence before the tribunal the time of decision requirements of cl.820.221(4) are not met.

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

   DECISION

10. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Margie Bourke
    Member