Doan (Migration) - [2024] AATA 57

Doan (Migration) [2024] AATA 57 (3 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hung Viet Doan
REPRESENTATIVE:  Ms My Yen Tran
CASE NUMBER:  1904606
HOME AFFAIRS REFERENCE(S):          BCC2017/5011482
MEMBER:Namoi Dougall
DATE:03 January 2024
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 of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 03 January 2024 at 10:10am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – progression of relationship among other marriages and divorces – validly married – financial, household and social aspects of relationship and nature of commitment – parties’ gambling – supporting statements – application made more than 28 days after previous visa ceased – compelling reasons for not applying criterion – sponsor’s mental health and treatment, and applicant’s support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), (d)(ii), 820.221, Schedule 3, criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
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

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 30 December 2017 on the basis of his relationship with his 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied on the evidence provided that the applicant and sponsor were in a spouse relationship within the meaning of that term in s5F and r.1.15A of the Act and Regulations.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Ms Thi Li Thanh Pham. 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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Doan (Migration)

Details

AGLC: Doan (Migration) [2024] AATA 57
Case: [2024] AATA 57
Decision Date: 3 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning the applicant's Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought to have the decision set aside and remitted for reconsideration. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly in relation to the genuineness and commitment of their relationship, and whether there were compelling reasons for the late lodgement of the application.

The Tribunal was required to determine several key issues. Firstly, it needed to assess whether the relationship between the applicant and the sponsor was genuine and continuing, considering the various marriages and divorces experienced by both parties, and the financial, household, and social aspects of their relationship. Secondly, the Tribunal had to consider the impact of the parties' gambling activities on the assessment of their relationship. Thirdly, it was necessary to determine if there were compelling reasons for the applicant not meeting the criterion of applying within 28 days of their previous visa ceasing. Finally, the Tribunal had to consider the sponsor's mental health and treatment, and the applicant's support in this context, as potential factors influencing the decision.

In its reasoning, the Tribunal acknowledged the detailed joint relationship statement provided by the parties, which outlined the history of their relationship from its initial stages in 2005, through periods of separation and subsequent re-connection in 2017. The Tribunal noted the complexities arising from the sponsor's previous marriages and divorces, and the applicant's marital history. The Tribunal also considered the evidence of the parties' commitment, including their engagement and wedding party, and the applicant's support for the sponsor during a period of mental health challenges. The Tribunal found that the sponsor's mother's initial disapproval due to the applicant's marital history and the sponsor's parents' strict Buddhist beliefs had caused initial difficulties. However, the Tribunal ultimately concluded that the applicant had established compelling reasons for the late lodgement of their visa application, primarily due to the complexities of their relationship, family pressures, and the sponsor's health issues.

Consequently, the Tribunal decided to remit the decision under review to the Department of Home Affairs for reconsideration. This remittal was based on the Tribunal's finding that the applicant had provided sufficient evidence to establish compelling reasons for the late application and that the relationship met the criteria for a genuine and continuing partnership.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties provided a joint relationship statement dated 28 December 2017 which stated as follows:·The sponsor was a hairdresser and in around mid-2005 a young man came to the hair salon where she worked and insisted that she cut his hair. After that day he would visit the hair salon regularly and sneakily watch her. The applicant then started to talk with her colleagues, help he with her chores, got closer to people in the hair salon so that they teased her about being a nice couple. He eventually asked her to go around the town with him.·Her former first spouse and her had family problems that started after the birth of their second child. She had taken her children and returned to her mother’s home to be away from him.·The sponsor accepted his invitation and gradually they got to be more and more intimate.·On the sponsor’s birthday, 15 April 2006, the applicant had waited for her to finish her shift and he asked her to hang out with him and he confessed his feelings for her. ·After their relationship developed further, they asked permission from their patents for a long term relationship. The sponsor’s parents did not agree to the relationship as they are strict Buddhists. They knew that the applicant had been married and separated. As the sponsor is the youngest daughter, they obeyed their parents and they gradually drifted apart.·The sponsor divorced her first spouse due to his continuous affairs.·In 2008 the sponsor met her second husband at which point her family wanted her and her children to have a better future, so she followed her second spouse to Australia. However, there were difficulties in their relationship ·On 2 April 2017, the sponsor was shopping in Cabramatta when she saw someone familiar, when they looked into each other’s eyes he recognised her. They talked a lot that day and kept in touch.·On 9 April 2017, the applicant called the sponsor and they met at a local club on 10 April 2017 and they shared with each other about their families and their lives. The applicant told the sponsor that he had travelled to Australia for a family holiday and to try to reconcile his troubled relationship. It was becoming increasingly difficult for him as a director of his own business to take care of his family and company. He struggled to run his business without the understanding of his spouse who blamed and criticised him for not attending to her demands.·The sponsor saw the applicant’s miserable situation and gradually opened her heart. She had also suffered two broken marriages. After the first meeting the applicant often invited the sponsor for coffee in Cabramatta, going bowling, listening to music and catch ups.·On 15 April 2017 she held a small party for her birthday. The applicant was invited and brought her 11 roses, one for each of the years they had known each other.·After the party they became more intimate and closer. They hung around had a tour of Cabramatta and Bankstown, they went to the Opera House, and Darling Harbour. The applicant would repair broken lights or faucet and repairs. The children love him and were very happy when he visited them.·On 17 June 2017 the applicant left Australia but before he did, he visited the sponsor’s mother, and she loved him because he was honest. After hearing their story, the sponsor’s mother quietly supported them. The applicant spoke with his parents when he returned to Vietnam but they still protested.·On 27 June 2017, the applicant returned as he worried the sponsor could not take the pressure of his family so he returned to Australia. They called his parents asking for their permission and understanding. By early October 2017 they gradually understood but by the time they did, it had affected the applicant’s visa.·The applicant came to the sponsor’s home on the weekends and on 15 October 2017 he moved in with her family. They discussed with the sponsor’s children the wedding and engagement party.·On 16 December 2017 they held an engagement and wedding party at the Grand Pearl Seafood Restaurant in Canley Vale. There were 80 guests including the sponsor’s mother.Hearing – applicant’s evidence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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