Doan (Migration)
[2024] AATA 57
•3 January 2024
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 the present case is whether the applicant is a spouse, as defined by the Act, of his sponsor, Thi Li Thanh Pham (the sponsor). The Tribunal will refer to the applicant and sponsor together are the parties.
The applicant and sponsor’s background and migration history
The applicant is a Vietnamese national born in 1982. The applicant’s parents and sister reside in Vietnam. The applicant was previously married to Thi Tanh Thy Nguyen from 11 September 2007 to 2 March 2016. A copy of the Divorce Agreement issued by the People Court of District 2 Ho Chi Minh City (HCMC) was provided. There are two children from this marriage born in 2007 and 2010.
The sponsor is a Vietnamese national born in 1976. The sponsor’s parents reside in Australia and her sister resides in Taiwan. The sponsor was previously married to her first spouse, Thanh Tung Bui from 12 January 1997 to 1 February 2008. A copy of the Divorce Decision issued by the people’s Court in Ben Tre province, Vietnam was provided. The sponsor has two sons born in 1997 and 2004 from that marriage.
The sponsor was previously married to her second spouse, Van Hoang Nguyen from 8 April 2010 to 20 August 2016. A copy of the Divorce Order issued by the Federal Circuit Court of Australia was provided. There are no children from this marriage.
The applicant and the sponsor provided the Department with a statement as to her previous relationships.The sponsor confirmed the above dates of her marriages and that she had two sons for her first marriage.
The sponsor first entered Australia on 23 January 2012 on a subclass 309 visa. The sponsor was granted a Subclass 100 visa on 25 May 2010. The sponsor became an Australian permanent resident on 24 May 2010.
Hearing – applicant’s evidence
At the hearing the applicant stated that he works as a motor mechanic in Marrickville and has done so from 2019. He is paid by cash. The Tribunal asked about the payslips and the applicant stated he owns the shop with a friend. His labour costs are indicated in the payslips provided. The partnership shares the profit 50/50 at the end of the year. His partner is Freddy Xuan. The Tribunal was provided with payslips from the months of July to September 2023 together with some but not consecutive Individual Tax Returns and Notices of Assessments.
Hearing – sponsor’s evidence
At the hearing the sponsor stated that her two sons live with her mother. They liked to live with her mother when they were younger and they have stayed with her. They live nearby. The sponsor also has a cousin who lives in Bankstown.
The sponsor stated the applicnat’s children live in Australia with their mother. She has heard that they live far away close to the city. The sponsor stated that the applicant visits once a month but sometimes he visits without her knowledge.
The sponsor stated that she is a hairdresser who works 3 days a week mostly on the weekend. She also organises a Tong Tin with Vietnamese friends. Most of the group deposit money into the CBA joint account and sometimes into the sponsor’s St George account. The sponsor used to receive a Family Benefit payment. The Tribunal was provided with weekly payslips from 8 July 2023 to 30 September 2023 together with some but not consecutive Individual Tax Returns and Notices of Assessments.
Initial meeting and development of their relationship
The visa application indicated that the applicant met the sponsor on 15 June 2005. They made a mutual commitment to a shared life on 15 October 2017 and married on 16 December 2017 at the Grand Pearl Restaurant in Canley Vale.
The Sponsorship for a partner to migrate to Australia (Form 40SP) indicates that the sponsor met the applicant on 15 June 2015.
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
The applicant stated that he first met the sponsor in 2005. He was not married but acknowledged that the sponsor was married but separated and the two children lived with her. It was his parents that disapproved of the relationship. The sponsor’s parents did not have any opinion. The relationship lasted a year.
After that he went to HCMC and married his former spouse in 2007. The applicant stated that when he started to open his shop there were a lot of arguments and they divorced in 2016. Through his children he has been told that his former spouse has a new partner.
In 2017 the applicant met the sponsor in Cabramatta on John Street. He was there as a tourist, and he heard that Cabramatta is a place where lots of Vietnamese shop and lot of people who run the shops live there and he wanted to do the sightseeing in Cabramatta. The Tribunal referred to it being an extraordinary coincidence and the applicant stayed close to Cabramatta and he head there was a Vietnamese market so that this is why he went there to see how they run business and to see how the market worked. The Tribunal asked if he had decided to stay in Australia at that point and the applicant stated no it was just out of curiosity.
The applicant stated that coincidentally the sponsor was on John Street, and they met. The Tribunal asked where his former spouse was at this time. The applicant stated that he was staying in Hill St, Cabramatta with his former spouse and two children. On that day they spoke to each other and exchanged numbers so they could contact each other later.
At the hearing the applicant stated that the next contact was speaking on the phone. He called her first about 6 days to a week later. He saw her again on 10 April 2017 at Cabramatta Diggers Club. He told his former spouse that the was going out to meet his friend. The applicant confirmed he stayed in Australia until June and met the sponsor a couple of times. The Tribunal asked how many times and the applicant stated he met up with the sponsor around two more times. They met at a coffee shop and then went to have lunch. Then told him that her birthday was on 15 April 2017 and invited him to her party. The applicant’s former spouse, who he was still living with him, was not invited. The Tribunal asked why she had to tell him when her birthday was, and the applicant stated that the sponsor just invited him to her party. The Tribunal referred to him being in a relationship previously with the sponsor and that he should have known her birthday. The applicant stated that they had been separated for a long time and he could not remember her birthday.
The applicant went to her birthday party, and he bought a bunch of roses to give to her. They talked about the past and family things. She also told him that she was sponsored to come to Australia, but she was now separated from that spouse.
The Tribunal asked if he was discussing the above at the birthday and the applicant stated that they had a long discussion. The sponsor asked why he came to Australia, and he told her that he had brought the two children for a holiday in Australia, and he also wanted to reconcile with his former spouse while they are having a holiday. After that the sponsor told him about her family story. The Tribunal referred to him stating he was reconciling with his spouse, but he was trying to go out with another women. The applicant sated that he had no intention to go out with her and it was the sponsor who asked him to the birthday party. After the discussion he returned to his place.
At the hearing the applicant stated that the next time they spoke was on the phone two to three days later. He called her. The applicant confirmed that after the sponsor’s birthday he did not meet her again until his second trip. They spoke on the phone two to three times a week. At the hearing the Tribunal referred to him travelling out of Australia on 17June 2017 and returned to Australia on 28 June 2017 and that he travelled both times with his former spouse. The applicant returned to Australia to attend the sponsor’s mother’s seventieth birthday party. The sponsor only invited him to that party. When asked why his former souse travelled with him the applicant stated that when he said he was returning to Australia his children asked to come with him and his former spouse had to travelled with them to look after the children. They stayed on Butley St, Cabramatta.
The applicant attended the party for the sponsor’s mother about a week after he arrived in Australia. The applicant met the sponsor again two or three days later at her place. He then went home, and his former spouse took her children and left. He had only gone to the sponsor’s place to talk to her, and he did not stay overnight. He could not contact them at the time. The applicant has no idea if his former spouse and his two children returned to Vietnam or not.
The applicant stated that he divorced his former spouse in 2016. The Tribunal referred to him still travelling with her in 2017. The applicant sated that it was because of the two children, and he had an intention to reconcile with her even though they had divorced.
Hearing – sponsor’s evidence
At the hearing the sponsor stated that she met him in the middle of 2005 when he came to have a haircut. The sponsor confirmed she was married at the time. She had a conversation when he had his haircut and the relationship started from there. The applicant’s parents opposed their relationship as she was married. The Tribunal asked how long the relationship lasted and the applicant cannot remember when he proposed and they did not have any contact with each other. From when the applicant proposed they did not have any contact. The reason was that she had been married and had two children and he was young, so she did not agree. The relationship ceased then. The Tribunal asked how long they had been seeing each other and the sponsor stated for about one year.
They next saw each other near the market in Cabramatta. They exchanged telephone numbers, and he called her, and he asked if he could meet up with her. They went to a coffee shop in Cabra Vale Diggers. They met again when the sponsor stated that she invited him to attend her birthday party. The sponsor confirmed that this was the next time she saw the applicant. The applicant bought a bunch of flowers to the party for her. They had a conversation. They had been speaking to each other four or five times a week.
The Tribunal asked when the applicant next saw the applicant after her birthday party. The applicant stated that he went back to Vietnam and they met again when he returned to Australia. The applicant confirmed that they had only saw each other twice at the Cabra Vale Digges and at her birthday party. They spoke every day after her birthday party and some days they spoke three or four times a day.
At the hearing applicant stated that the applicant travelled with his former spouse and children. The applicant had told her in English so she could not remember. When asked who he was staying with the applicant stated at a friend’s place. When asked if he was staying with his former spouse and children, the sponsor stated that she did not ask him at that time.
At the hearing the Tribunal asked why the applicant returned again so quickly to Australia. The reason was that he missed her, and he wanted to take the children with him for another holiday. The applicant also wanted to attend her mother’s birthday party. The sponsor confirmed that the applicant travelled with his former spouse, and she does not know why. The first time she saw him during that trip was when he came to her place. The next time she saw him was at her mother’s birthday party. They had been communicating by phone.
The sponsor’s mother’s birthday party was on 30 June 2017. Several days later they met again at her place. When asked if the applicant was staying with his former spouse and children, the sponsor stated no. The sponsor stated that after the incident he came to live with her at her place. The applicant said to her that he was very sad about his former spouse and the children, so she asked him to live with her. The sponsor added that as he could not reconcile with his spouse, and she had another man. The sponsor stated that the applicant started to live with him on 15 October 2017.
The sponsor stated that the application was lodged on 30 December 2017. The visa application was lodged after their wedding reception.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the marriage certificate for the applicant and the sponsor dated 16 December 2017 was provided to the Department. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
Financial aspects
Evidence provided to the Department
The parties in their relationship statement the sponsors stated that she has a stable part time job as a hairdresser. They have opened a joint CBA bank account for family expenses and savings.
Provided to the Department was a list of transactions on the joint CBA bank account 13 June 2018 to 18 September 2018 and 2 October 2018 to 21 September 2019.
Evidence provided to the Tribunal
The Tribunal was provided with the following bank statements and transaction statements:
·Joint CBA account #4537 bank statements for the periods 1 January 2019 to 30 May 2019, 1 July 2019 to 6 December 219 and 18 December 2022 to 31 December 2022.
·Joint CBA account #4537 transaction statements for the periods 2 October 2018 to 21 January 2019, 17 January 2020 to 15 April 2020, 1 January 2022 to 30 December 2022, 27 May 2022 to 16 February 2023 and 3 June 2023 to 17 October 2023.
·The applicant’s CBA account #6278 bank statements for the periods from 1 January 2021 to 30 June 2023.
·The applicant’s CBA account #6278 transaction statement for the period 3 July 2023 to 30 September 2023.
·The sponsor’s St George bank account #7257 bank statements for the period 13 May 2023 to 17 October 2023.
The Tribunal was also provided with phone accounts in their joint names and small regular donations made to various charities.
The applicant provided his Individual Tax Returns for the tax years ending 30 June 2019, 2022 and 2023 and the sponsor for the tax years ending 30 June 2021, 2022 and 2023. In each of the tax returns each has included the other as their spouse.
The applicant provided a statement dated 10 March 2023 in which he stated that he and the sponsor are still in a loving marriage, and he supports her as she is not well and relies on him. They are still renting and pay the rent together. The applicant also stated in the statement that they have both invested with a friend in a property in Queensland. The Tribunal was provided with rates notices for the property in Queensland which are in the name of the applicant, the sponsor and Mr Xuan.
Hearing – applicant’s evidence
The applicant is a partner in a motor mechanic workshop. The company, DMV Autoworks Pty Ltd, he owns the business. He is a director, and he is paid regularly but as it is cash it does not go into any account.
The sponsor works as a hairdresser in Cabramatta. She used to receive a payment from Centrelink as she only worked part time on a low income. The sponsor also participated in Tong Tin banking which is group banking and when she got her share the payment went in to he account. A group of friends together in the banking group and the sponsor is the leader of the group. Each pays $500 into the group. The money is to financially support people in the group and who ever needed the money first. The next month, the one who pay the very highest interest will get the remainder of the money, but the person who took the money previously cannot take the money.
As the sponsor is a leader of the group, the members deposits money into the joint account for their share and the sponsor transfers money out to other’s in the banking group. The applicant states that she gets some profit as she invests. The Tribunal referred to the sponsor not making much money in interest. The applicant referred to her investing in a home loan and making money from that as she lends money to friends.
At the hearing the Tribunal referred to the sponsor gambling large amounts in Club Merrylands. The applicant sated that he is not sure how much and sometimes she borrows from a friend. The Tribunal asked if he goes with her when she gambles and the applicant sated that he only sometimes goes with her. He is very busy at work and she only works a few days a week. When she goes to gamble, he had no idea.
The Tribunal referred to the applicant gambling at Cabra Vale Diggers, Cabramatta Rugby Leagues and Cabramatta Bowls. The applicant stated that sometimes he goes there with his friends and he sometimes gambles.
Hearing – sponsor’s evidence
The Tribunal asked how they share the domestic bills. The sponsor stated that she pays the bills. The sponsor is given payment by cash which she keeps at home. She mainly uses the CBA joint account for her group banking.
The Tribunal asked how often she gambled and the sponsor sated that it was four or five times a week and sometimes only once a week. She spends $1,000 to $5,000 week. The Tribunal asked if the applicant knows how much she gambles, and the sponsor stated some of it but not all as she hides it from him and she goes with her friends.
The sponsor stated that the applicant gambles a little bit.
As referred to below the applicant’s CBA account indicates that the applicant spends money at a supermarket in Wentworth Point and at other places nearby on a regular basis. The applicant’s former spouse and children live in Wentworth Point. The Tribunal, however, also notes that in 2023 that the amount spent there reduced to a monthly basis. Further, the applicant also does grocery and other shopping in and around Canley Vale and Cabramatta in the vicinity where he lives with the sponsor. The joint account also indicates grocery and household spending in and around where the couple live in Canley Vale.
The applicant and the sponsor both gamble and are aware of each other’s gambling, although not the extent of the sponsor’s gambling. The Tribunal notes that the sponsor transacts all of the Tong Tin money through the joint account which the applicant has access to and is aware of this.
The Tribunal is satisfied that parties shared their financial resources. Therefore, on the evidence the Tribunal is satisfied that the financial aspects of the relationship is consistent with a genuine and ongoing spousal relationship at the particular life stage of the parties.
Nature of the Household
Evidence provided to the Department
The parties in their relationship statement stated that they live at the address in Hill St, Cabramatta. The applicant wakes up early and helps her make breakfast. When she finishes work, she cooks dinner, and he helps with the dishes. The applicant also takes care of the heavy chores. On the weekend they go shopping for food.
Evidence provided to the Tribunal
The Tribunal was provided with a Residential Tenancy agreement dated 2 November 2018 for an address in Bartley Street, Cabramatta together with rental receipts and correspondence addressed to this address.
The Tribunal was provided with a Residential Tenancy Agreement dated 20 April 2020 for an address in Ralph Street, Canley Vale and a rental bond receipt. Also provided was various correspondence addressed to this address.
The bank statements and tax office records reflect the above addresses.
Hearing – applicant’s evidence
The Tribunal asked about his shopping at Wentworth Point and the applicant responded that his two children live in Wentworth Point, he misses them so that is why he goes there often to buy things. The Tribunal asked if he has an ongoing relationship with his former spouse and he said no. When he goes to visit the children, he calls first so the children can come down to see him. The applicant does not pay maintenance for his children but gives money to them when he sees them.
The Tribunal asked how often does he visit his children and the applicant stated when he misses them. The Tribunal asked again, and the applicant stated sometimes once a week and other times once a fortnight. The Tribunal referred to him shopping at Wentworth Point on 20, 25, 26 and 27 July 2021 which is more than just dropping in. The applicant stated that he has given his kids a key card to use, and this may explain this. The Tribunal explained that this can indicate that you live in the area.
Later the applicant sated that when he did not have cash, he gave them his card to spend on what they needed and he would get the card a few days later. The Tribunal referred to the applicant using the card shortly after it is used in Wentworth Point. When he has cash, he gives it to the sponsor and he sometimes has no cash.
The Tribunal referred to both of them gambling and that even though there is gambling it does not mean there is not a spousal relationship, but the Tribunal would expect him to be aware of the extent of the gambling. The applicant stated that sometimes he lends money to friends, and they pay it back. The Tribunal stated that it is referring to the extent of his spouse’s gambled and would expect him to know the extent of her gambling especially as it is significant. The applicant stated that he was told that she had to withdraw money to pay a member of the Tong Tig. The Tribunal asked if he noticed the withdrawals from Club Merrylands and the applicant stated that it was the same thing as in his case and the applicant stated that she went to play with friends, and they borrowed the money, so she withdrew the money to give it to them.
The Tribunal referred to the sponsor having a problem which is significant, and the applicant stated that he does not think that she had enough money to gamble as she only works three days a week so the money could come from the banking group.
The applicant stated that the sponsor usually cooks and he usually cooks on the weekend. The applicant stated that yesterday he went to a restaurant in Canley Vale to buy noodles and roast pork to prepare for today’s hearing.
The applicant stated that the sponsor does the cooking, and he helps her clean the house. The sponsor is a singer, and she is messy at home so he has to help her clean the house. He helps washing the dishes, sweeping the house.
The Tribunal referred to the sponsor’s son and the applicant sated that her son lives with the sponsor’s mother in Canley Heights. When asked why the sponsor’s son lives with the sponsor’s mother the applicant stated that her mother is old and needs someone younger to live with her and he wants to live with his grandmother.
Hearing – sponsor’s evidence
The sponsor stated that they shop together mainly in the weekend. The sponsor stated she does the cooking and they help each other cleaning the house. The applicant does the laundry when he has spare time by putting the washing into the machine and she hangs it up in the morning.
The parties have lived together since before they married in 2017. The evidence as to how they share the domestic chores is consistent. Therefore, the Tribunal is satisfied that the nature of the party’s household is consistent with a genuine and ongoing spousal relationship.
Social aspects
Evidence provided to the Department
In the relationship statement the parties stated that they hang out with friends and visit the families of Mr Vu, Mr Hieu, and Mr Hung. They also go out together for meals and drinks at a Vietnamese Restaurant in Cabramatta.
Evidence provided to the Tribunal
The applicant provided a statement dated 10 March 2023 in which he stated that they socialise with families, relatives and friends whenever they can. The Tribunal was provided with a significant number of photographs of the couple together at various social occasions.
The Tribunal was also provided with statements in support of their relationship from: Mr Andrew Tran and Mr Quoc Tran, friends of the applicant; Mr Thach Doan, a friend of the sponsor; and Mr Fredy Xuan and a friend of both of them.
Hearing – applicant’s evidence
At the hearing the Tribunal asked when was the last time they went out with the sponsor and the applicant stated in November they went to Wollongong to the beach. They normally cook at home and eat at home. He is busy at work to go out with her friends. The Tribunal asked again, and the applicant stated that several months ago they went with friends to attend a concert in which the sponsor was singing.
The Tribunal asked if he had taken his children for a holiday, and he said no. They have not gone on day trips together as the children are grown up.
The Tribunal asked if they had been on a day trip this year apart from going to the beach. The applicant stated he went to Newcastle to get muscles in March or April 2023. The Tribunal referred to the bank statement indicating that this happened in January 2023.
Hearing – sponsor’s evidence
The sponsor stated that they last went out as a couple was about two months ago when they went to the beach. The last time they went out with friends was to the beach in Wollongong with friends. They have not been on holiday together.
There is evidence that the applicant and sponsor are known as a couple with their friends but there is little evidence that their children know the parent’s partner. This is a concern for the Tribunal particularly in relation to the sponsor’s children. However, in light of the evidence that the applicant and sponsor socialise as a couple and the statements in support provided by their friends, the Tribunal is satisfied that the social aspects of the relationship is consistent with a genuine and ongoing spousal relationship.
Nature of persons’ commitment to each other
Evidence provided to the Department
The parties stated in their relationship statement that the sponsor has search for an English course of the applicant. They have plans to rent a bigger apartment. When their life is stable they will save money to buy a bigger car. The sponsor stated that the applicant would like a baby girl. They will also visit relatives in Vietnam.
Hearing – applicant’s evidence
At the hearing the applicant stated that his plans for the future is to sell the land they invested in Queensland. And use that money to buy a house in Sydney and they want to have one more child together.
Hearing – sponsor’s evidence
At the hearing the spouse stated that they have discussed their gambling. They talk normally.
At the hearing the Tribunal asked the sponsor stated that her plans for the future and the sponsor stated that they are worried about the case. They plan to stay together of the rest of their lives, and they have lots of plans. They will travel to Vietnam to visit family. They have planned a lot but she cannot remember at this stage.
The parties have been in a relationship for since 2017. The Tribunal is satisfied that the parties draw support from each other, particularly the sponsor in light of her mental health issues. Therefore, on the evidence the Tribunal is satisfied that the nature of the parties’ commitment to each other of the relationship is consistent with a genuine and ongoing spousal relationship.
On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.
Therefore, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others and that their relationship is genuine and continuing and that they live together, not separately and apart, on a permanent basis.
Accordingly, the Tribunal is satisfied that the applicant is in a spouse relationship with the sponsor and the visa applicant, therefore the applicant meets cl 820.211 and cl 820.221.
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.
The last day the applicant held a relevant visa was on 28 September 2017 and this is the relevant day as set out in criterion 3001(2). The applicant lodged his Subclass 820, and the partner visa application on 30 December 2017, more than 28 days after the relevant day.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
Evidence – provided to the Tribunal
The applicant in his statement dated 10 March 2023 stated that the sponsor is not well and is receiving treatment and that he has been taking care of her.
The Tribunal was provided with a report from the sponsor’s treating psychologist, Minh Nguyen dated 7 March 2023 which relevantly states that:
·The sponsor first attended on 7 December 2019 and her most recent session was on 27 February 2023.
·The sponsor’s symptoms’ and history meet the DSM-V criteria for Major Depressive Disorder the onset of which are associated with her life experiences.
·The applicant’s uncertain resident status has exacerbated he condition and risk of suicide. The applicant’s presence in Australia supports the sponsor emotionally and financially.
·The presence and support of the applicant for the sponsor is essential for the sponsor’s recovery from her anxiety and major depressive symptoms.
Evidence - provided at the hearing
At the hearing the applicant stated that the sponsor sees her psychologist every six months. The sponsor is medicated and the applicant stated that she takes a different tablet in the morning and at night. He cannot remember the names of the tablet. The Tribunal asked if she had other relatives living nearby apart from her mother and the applicant stated a cousin.
At the hearing the Tribunal asked why the applicant’s visa lapsed and the sponsor stated that she was not aware of the requirement and they loved each other and waited until the wedding had been finalised before lodging the application.
At the hearing the sponsor stated that at first she saw her psychologist once a month and now every six months. She started to see the psychologist when she divorced her second spouse in 2016. The sponsor takes medication, she cannot remember what as the applicant prepares it. The medication is for anxiety.
At the hearing the Tribunal asked if the applicant had to go offshore to lodge a fresh application would she be able to rely on her mother for support and the sponsor stated that she does not know. The sponsor stated that she cannot live without her spouse. The sponsor wants the applicant to remain, she does not know how she would survive without him.
The applicant stated that he knows that it was wrong to stay in Australia abut he would like the opportunity to stay and look after the sponsor.
The Tribunal notes that the sponsor’s mental health condition started around the time of her divorce from her second husband, however, the Tribunal has the medical evidence that indicates that it is still ongoing. The Tribunal has considered whether the sponsor could rely on her mother to support her during an absence of the applicant but has taken into account that her mother is in her seventies. In light of the psychological evidence the Tribunal is satisfied that there are compelling reasons for not applying Schedule 3 criteria.
The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii).
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
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.
Namoi Dougall
Member
ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Schedule 3
3001
The application is validly made within 28 days after the relevant day (within the meaning of subclause (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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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