Duong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3357
•28 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Duong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3357
File number(s): BRG 184 of 2020 Judgment of: JUDGE VASTA Date of judgment: 28 August 2020 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.
Legislation: Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), reg 1.20J, reg 1.15
Cases cited: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Tickner v Chapman (1995) 57 FCR 451
Number of paragraphs: 76 Date of last submission/s: 28 August 2020 Date of hearing: 28 August 2020 Place: Brisbane Counsel for the Applicant: Mr Park Solicitor for the First Respondent: Sparke Helmore ORDERS
BRG 184 of 2020 BETWEEN: THI THUY HANG DUONG
First Applicant
THIEN VAN NGUYEN
Second Applicant
THIEN TRIEU NGUYEN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
28 AUGUST 2020
THE COURT ORDERS THAT:
1.The Application filed on 24 March 2020 as amended within the affidavit filed 7 July 2020 be dismissed.
2.The Applicants pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,000.00
NOTATION:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE VASTA
On 27 February 2020, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the Applicant Tai Tua Hung Duong and her two children who are the second and third applicants, Partner visas. On 24 March 2020, the Applicant asked this Court to review that decision.
The background chronology is as follows. The sponsor was born in Vietnam in 1949. He came to Australia in 1984 as a refugee with his then wife and their four daughters. That relationship ended at some unknown time. The sponsor became an Australian citizen at some time that is not clear to me, but there is no doubt that he was an Australian citizen.
In 2004, the sponsor sponsored a woman to come to Australia on a Partner visa. Apparently, the sponsor and that woman had a daughter from their union. That relationship apparently ended at some unknown time. In 2010, the sponsor sponsored another woman to come to Australia on a partner visa. That relationship apparently ended, it would seem, because of some concerns over domestic violence, notwithstanding that the sponsor and this woman stayed married.
The Applicant was born in Vietnam in 1975. She was married in Vietnam and had two children, who are the second and third Applicants. They were born in 2004 and 2009, respectively. The Applicant’s then husband came to Australia on a 457 visa and the Applicant and the two children arrived on 16 June 2013 as part of the family group under the husband's 457 visa.
Upon arrival, the Applicant took the children to live in Queensland. She said that her cousin had arranged work for her at a market garden about two hours’ drive out of Brisbane. The husband remained in Sydney and worked there under his visa. The Applicant said that, despite living and working in different States, she considered that she and her husband were still in a continuing relationship.
She said that that changed in May 2014. She said that her husband visited her and the children in Queensland every two or three months during 2013, but the visits became less frequent in 2014. She said that they agreed to divorce then.
According to the Applicant, the Applicant and the sponsor met on 1 August 2015. The Applicant said she was introduced to the sponsor by her cousin, who was her employer at the market garden. The Applicant said that her cousin knew the sponsor and described him as being, “lonely, depressed, and in need of a partner.”
On 6 March 2016, the Applicant travelled to Vietnam together with her husband. They were in Vietnam together for 6 days. The Applicant said that this travel was for the purpose of obtaining their divorce. It would seem that the divorce was granted in Vietnam sometime between 7 March 2016 and 11 March 2016. Also on 11 March 2016, the sponsor and the wife that he had brought over from the 2010 application, formally divorced.
On 31 March 2016, the husband of the Applicant, or now ex-husband of the Applicant, lodged a partner visa application based on a claimed relationship with an Australian citizen. On 2 April 2016, the Applicant and the sponsor were married. On that day, the Applicant and her children moved into the house of the sponsor. On 3 May 2016, the Applicant applied for the present visa on the basis of her relationship with the sponsor.
On 14 May 2016, the sponsor left Australia and went to Vietnam. The sponsor was in Vietnam for over eight weeks. On 13 July 2016, the sponsor died in Vietnam. According to the copy of his death certificate, the sponsor died from disease of the heart and lungs.
The Tribunal assessed the application of the Applicant. The Tribunal had quite a deal of information before it, including many statutory declarations from other people. The Tribunal noted that the legislation required that, at the time the visa application was made, and, also at the time of decision:
The Applicant must be the spouse or de facto partner of an Australian citizen or an Australian permanent resident.
The legislation also provided 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.
For a decision-maker to form an opinion about these matters, regard must be had to all of the circumstances of the relationship and that the mandatory considerations are set out in reg 1.15A of the Migration Regulations 1994 (Cth) (“the Regulations”), especially those in sub (3) of that Regulation. The Tribunal noted that all 15 aspects under that sub-regulation are, effectively, questions that the Tribunal must answer.
The Tribunal found that the Applicant and the sponsor had been validly married. The Tribunal looked at the financial aspects of the relationship. The Tribunal noted that there was no joint ownership of real estate or other major assets; there was no joint liabilities; there had been no pooling of financial resources, especially in relation to major financial commitments; neither the Applicant nor the sponsor owed any legal obligation in respect of the other; and, the Applicant and the sponsor may have both contributed to household expenses.
The Tribunal noted that the parties had lived together for only 6 weeks. Yet, the sponsor was on a Disability Support Pension which was paid into his personal bank account, and the Applicant had no access to that account.
The Tribunal noted that there was a statutory declaration to the effect that: the sponsor contacted the husband of the deponent wanting to borrow $2000 to buy a plane ticket back to Australia because he lost his bank card and could not withdraw any money from his account. The deponent said that the Applicant also called the deponent's husband and asked him to send money directly to the sponsor in Vietnam, because she did not have the means to travel, to pick up the money, and have the money transferred.
The Tribunal asked the Applicant, why she did not send money to the sponsor for his airfare or purchase the airfare in Australia? The Applicant said that, even though she was working, she could not afford the airfare because she had used her savings for the wedding. She said that the sponsor had not provided her with access to his bank account.
The Tribunal concluded that the evidence did not show, and that the Tribunal did not accept, that the Applicant and sponsor had pooled financial resources or shared expenses as would be expected of a married couple.
The Tribunal then looked at the nature of the household. The Tribunal noted that when the Applicant was before the delegate, the Applicant had not given to the Department any evidence that the parties had some form of rental agreement. However, before the Tribunal, the Applicant produced a Terms of Agreement document which purported to be a lease agreement between the landlord and the parties.
The Tribunal noted that this lease was somewhat unsatisfactory. It noted that the landlord gave his address as the address of the rental property, which was in contrast to the sponsor’s sponsorship form, which claimed that only four people were living in the three bedroom rented house in Inala. There was no bond paid for this property and the Lease Agreement was not in the standard Tenancy Agreement Form that the Queensland Residential Tenancies Authority give to persons in such rental relationships so that the rental agreements are consistent.
The Tribunal considered this document may well have been contrived for the purpose of remedying the deficiency noted in the delegate’s decision. The Tribunal noted that there was no other independent evidence such as utility bills or other mail addressed to the parties at the same address that would support the claim.
The Applicant claimed that during the six weeks that they lived together, the sponsor drove her children to and from school and she and the sponsor shared the housework. She said that she took care of most of the cooking and household chores and the sponsor would sometimes assist when he was not tired or feeling weak.
The Tribunal accepted that the sponsor might have driven the Applicant’s children to and from school. They accepted that the parties might have shared other household chores. And they accepted that the Applicant might have done the bulk of the cooking and cleaning during those six weeks.
However, the Tribunal said that the parties lived in the house for only six weeks and that the Tribunal was not satisfied on the evidence provided that, in that time, they established a joint household as a married couple.
The Tribunal then looked at the social aspects of the relationship. They noted that there were no statements of support provided by any member of the family of the Applicant, apart from the cousin who secured employment for the Applicant in the market garden and had introduced her to the sponsor.
There was a statement of support from the sister of the former husband, and her husband, who was apparently a friend of the sponsor. No statement of support was provided by any member of the sponsor’s family in Australia, and there was one statement of support provided by a brother of the sponsor, and he was living in Vietnam.
The Applicant did, however, claim that the sponsor had been alienated from his five daughters in Australia and that she, the Applicant, had actually never met his five daughters. The Applicant had said that she and the sponsor socialised by visiting and eating with a small group of friends. She also claimed that she had a close relationship with the sponsor’s family in Vietnam. However, the Tribunal noted that she could not provide basic information about them, such as their ages or family circumstances.
The Applicant provided photos of herself and the sponsor at their wedding. The cousin said that he introduced the parties “because they were both single and lonely” and he thought that they “would be compatible.” Two other persons spoke of the Applicant attending to the ashes of the sponsor in the temple where the ashes now lay. Another friend of the sponsor claimed that he rented the house in Inala to the parties. He said that he visited the parties on weekends. That person claimed that when the Applicant learned of the death of the sponsor, she went immediately to attend the funeral of the sponsor. However, the brother of the sponsor in Vietnam said that the Applicant was unable to get to Vietnam for the funeral because of the visa situation and that she travelled to Vietnam later to arrange for the ashes to be returned to Australia.
That brother also claimed that the sponsor, whilst he was in Vietnam before he died, visited the parents of the Applicant. However, the Tribunal had before it the purported text messages between the Applicant and the sponsor over the period 14 May 2016 to 4 July 2016. Those messages were simple messages that spoke of the parties missing each other, or the weather, or what it is they were having to eat. The Tribunal said that, if the sponsor had visited and met with the parents in Vietnam, the AAT would have expected that the parties would have mentioned this in their messages to each other. The Tribunal considered this aspect of the brother’s statement to be a fabrication.
The statement given by the sister of the former husband of the Applicant said that her husband was a close friend of the sponsor and that she had seen the sponsor depressed and unhappy when she first viewed him. She said that he was happier after he married the Applicant. She then declared that the sponsor’s spirit would only be in Australia because his biological son also lives in Australia.
The Tribunal noted, the information before it was, that the Applicant had no biological son, and that he was alienated from his five daughters. The Tribunal said they gave the declarations and statements little weight because some of the writers never saw the parties together and others provided information that was contradictory or incorrect or was even fabricated. But, for whatever reason, the information was not credible.
The Tribunal accepted that some family members and friends of the parties knew that the two of them had been married. But there was no evidence that the parties were recognised and were related to by the family of the Applicant as a genuine married couple. The Tribunal said that there was no evidence provided, apart from claims and written statements about visits and shared meals, that the parties actually planned and undertook joint social activities as a married couple.
The Tribunal accepted that the friends and acquaintances who had given statements did support the visa application. But the Tribunal was not satisfied that the Applicant and the sponsor were recognised, and related to, as a couple in a genuine marriage, at the time of their marriage, at the time of the visa application, or at the time of the death of the sponsor.
The Tribunal then looked at the nature of the persons’ commitment to each other. The Tribunal said that the Applicant acknowledged that she lived with the sponsor for only six weeks. The Applicant said that she had an IUD contraceptive device removed from her uterus on 15 April 2016, and that this was proof that the parties were planning to have children. The Applicant claimed that the sponsor wanted to have a son.
The Tribunal considered this claim but was not convinced that the removal of the IUD demonstrated that the couple genuinely intended to have a child. This conclusion was made given the disparity of ages of the sponsor and the Applicant, where they were at their respective stages in life, and their other circumstances.
The text messages between the parties, while the sponsor was in Vietnam, did not convince the Tribunal that there was evidence of the commitment that the sponsor and the Applicant had to each other. The Tribunal asked the Applicant, why she did not go with the sponsor to Vietnam to meet his family? And, why she did not go to Vietnam when he fell ill? And, why she did not go to his funeral?
The Applicant said she could not go because she had to look after her children. The Tribunal asked, why she did not leave her children with the sister of the ex-husband? Or, why she just did not leave the children with their biological father? The Applicant said, she did not like to ask her ex-husband or sister, or his sister to look after the children. She then told the Tribunal that, she could not afford the airfare and she had to work. She said that, she did not realise that the sponsor was seriously ill, and his death was unexpected. She told the Tribunal, she did go to Vietnam to collect his ashes, and she noted that this was at considerable expense to herself.
After considering all these matters, the Tribunal said that they were not satisfied that the parties saw the relationship as a long-term one. Having considered all the matters, the Tribunal was not satisfied that the requirements of s 5F of the Migration Act 1958 (Cth) had been met at the time the application was made, or at the time of decision.
There was a further matter that the Tribunal had to consider, and that was an independent reason why the decision would be affirmed. A visa can be granted where the Applicant would have continued to be the spouse of the sponsoring partner and would continue to meet the other time of application criteria, if the sponsor had not died.
In such matters, the Tribunal said that the Applicant must have developed close business, cultural, or personal ties in Australia. The Tribunal, having already found as it had, concluded that the Applicant did not meet such criteria.
There was a further complication with the application made by the Applicant. The sponsorship of this particular sponsor needed to be approved by the Minister and still be in force. Exceptions apply in certain circumstances, but there are limitations on those exceptions that are contained in reg.1.20J. This regulation sets a limit on the number of people a person can sponsor in a lifetime and a minimum time that must elapse between each sponsorship.
As previously noted, the sponsor had already sponsored two persons; one in 2004 and one in 2010. In effect, this particular sponsor had met his limit. There needed to be compelling circumstances affecting the sponsor for this bar to be lifted. The Tribunal asked the Applicant, on a number of occasions, whether there were compelling circumstances that affected the sponsor. She stated that the sponsor was depressed, unhappy, and lonely before they were introduced, and that she made him happy, and that they loved each other. The Applicant said that her children are in school in Australia and they have lived in Australia since June 2013, and that it would be disruptive for them to have to return to Vietnam.
The Tribunal then put to the Applicant the statement from the ex-husband’s sister who had said that, the sponsor’s spirit would only be in Australia because his biological son also lived in Australia. The Applicant reiterated that the sponsor had no biological son. Post-hearing, a further statutory declaration was received from that particular woman. She declared that she had made a mistake in her previous declaration and now knew that the sponsor did not, in fact, have a biological son.
Another friend of the sponsor had claimed that the sponsor had been in Australia the majority of his lifetime and, therefore, the Applicant wished to remain in Australia to be with the sponsor. The Tribunal noted that the sponsor was born in January 1949, arrived in Australia in 1984, and died in 2016; he had not spent the majority of his lifetime in Australia. The Tribunal also noted that the sponsor had made repeated visits to Vietnam for between one and three months, most years, from 1991. The Tribunal found that there were no compelling circumstances to lift the bar on the reg 1.20J.
For all those reasons the Tribunal affirmed the decision.
The application today has been conducted upon a ground that was contained in a proposed amended application in an affidavit that was filed in this court on 7 July 2020. Notwithstanding that the application, or amended application, had not been filed, the Court allowed the matter to proceed upon this basis as there was no prejudice to anyone if that occurred. The ground reads as follows:
1.The Tribunal failed to comply with Migration Regulation 1.15A(2) in that it failed to consider all the circumstances of the relationship.
Particulars
(a) Failure to consider the matters in regulation 1.15A(3) in the context of the first applicant's marital relationship with her sponsor only lasting about six weeks before the sponsor died
(b) Failure to consider, in the sense of directing an active intellectual process towards, observations made and opinions expressed in the statutory declarations and statements of the following persons:
And there were six persons that were then named. The other matter that was pursued was the aspect of compelling circumstances to lift the bar on reg.1.20J.
The Applicant framed the first part of the submissions as whether the AAT failed to consider that the couple lived together for six weeks and did not have sufficient time to develop the matters that would be the indicia of a relationship.
The complaint is that there was no recognition that the parties may not have had the time to do all of the things that the Tribunal had to ask under reg 1.15(3). The Applicant said that, whilst the AAT did set out the criteria indicative of a relationship, they applied those criteria inflexibly and there was no, as it were, allowance for the very short time that the parties were together.
On the evidence, the parties were married on 2 April 2016 and the sponsor died on 13 July 2016. That means that they were married for just over three months. However, quite rightly, the Applicant concedes that they actually only lived together for six weeks. It is those matters of which the Applicant complains most.
At paragraph 32 of the reasons, when looking at the financial aspects of the relationship, the Tribunal said:
32. The Tribunal accepts the parties might have both contributed to household expenses during the time they might have spent in the same household, but the evidence does not show and the Tribunal does not accept that they pooled financial resources or shared expenses as would be expected of a married couple.
The complaint is that the Tribunal did not make any allowance for the fact that the couple were only living together for six weeks. However, it seems to me that the Tribunal did exactly that because it prefaced its remarks by talking about “during the time they might have spent in the same household”. That is very much an acknowledgement of those particular circumstances.
In paragraph 39, when talking about the nature of the household, the Tribunal said this:
39. The Tribunal accepts: the sponsor might have driven the applicant’s children to and from school; that the parties might have shared other household chores; and that the applicant might have done the bulk of the cooking and cleaning when she and her children lived with the sponsor in Inala. However, the parties lived in the same house for only six weeks and the Tribunal is not satisfied on the evidence provided that in that time they established a joint household as a married couple.
Again, the Applicant says that there was no recognition that they may not have had the time to do this. It seems to me that the Tribunal clearly did recognise that fact because they preface their remark that the parties lived in the same house for only six weeks and talked about, in that time, how they hadn’t established a joint household as a married couple. It seems to me that in relation to that aspect the Tribunal has actually considered that the time that they lived together was six weeks.
That was certainly also considered in looking at the social aspects of the relationship and the nature of a person’s commitment to each other. I cannot see that there has been a failure to consider those matters, therefore this part of the application fails.
With regard to the second aspect of the ground, the Applicant relies on the fact that there were six statutory declarations that were given to the Tribunal. These statutory declarations are contained in the court book from, it would seem, pages 201 through to 220. The Tribunal did not speak of the name of the deponents of any of those statutory declarations. It gave a description of them and talked as to what date the statutory declaration was sworn or dated.
What, however, is clear is that there were affidavits whose contents were not mentioned. The affidavits of the persons, Le, Duong, Pham, and Tran were all spoken of by the AAT. That was done in paragraphs 42, 43 and 44 of the reasons. At paragraph 42 the Tribunal spoke of Mr Duong's affidavit, where he stated that he introduced the parties because they were both single and lonely and for this reason he thought they would be compatible.
In paragraph 43 the Tribunal refers to the Tran affidavit and noted that that person declared she had heard about the sponsor and observed the Applicant to attend to his altar in the house where the sponsor lived with the Applicant.
The Tribunal also referred to the Le affidavit, saying that Ms Le, the attendee at the temple where the ashes of the sponsor are resting, stated she observed the Applicant visiting the urn containing the sponsor’s ashes. And in paragraph 44, noted that Mr Pham, who had rented the house to the Applicant and the sponsor, said that he visited the parties on weekends and that when the Applicant learned of the death of the sponsor, she went immediately to attend the funeral of the sponsor.
The affidavit of Ms Lee that is contained at page 202 of the court book said:
I have never met the applicant's partner in person. I see the applicant regularly at the temple when she comes to the temple to light the incense for her late husband. I usually come to the temple… on Sundays. Throughout my regular visits at the temple I got to know Mrs Duong Thi Thuy Hang who comes to the temple regularly to burn incense and to visit her husband's urn. I believe that this illustrates her dedication and devotion to her late husband, because she does so both consistently and lovingly. The relationship is genuine and reflected by this desire to still be close to her husband, despite the tragedy.
The affidavit of Mr Hunyh, , at page 219, says that he is a friend of the Applicant and has known the Applicant for about two years and that he has gone to the temple with the Applicant and that she had mentioned to him about her relationship with the husband and her feelings. He says:
Right now I can see that Hang cherishes and takes extreme care with the items Sanh gave her as a gift and the remainder of Sanh’s belongings. As Hang has once told me that those items are sentimental to her and living in the same house that they once lived together and seeing those items, has made Hang feel complete, as she felt that Sanh is currently besides her [sic]. And that is the reasons why Hang told me that she doesn't want to change house.
Hangt told me, after Hang learned of Sanh’s death, she was so depressed and wanted to give up everything. But remembering the Sanh’s words regarding their future plans, it motivated her in striving to achieve their intended goals for his sake,
Thereby I believed had Sanh continued to live, Hand and Sanh would have lived happily together for the rest of their lives as a couple. Every time Hang mentioned Sanh, I could see that she seemed very happy.
As is clear from both those statements, neither Mr Hung or Ms Nguyen had ever met the sponsor. The AAT said in, said at paragraph 47:
47. The Tribunal gives the declarations and statements little weight, for the reasons that some of the writers never saw the parties together and the others provided information that was contradictory or incorrect, or was information the Tribunal considers fabricated or not credible.
That summary of the affidavits, at paragraph 47, could be read that the Tribunal is only giving the declarations and statements of which they have already spoken, little weight, or it could be they are talking about all the declarations. It is not clear. However, the next part of that paragraph: “for the reasons that some of the writers never saw the parties together” is something that describes Ms Le and Mr Hung, notwithstanding that the Tribunal had not specifically mentioned their names.
The Applicant claims that the law is that all relevant material must be considered. The Applicant relies on not only the usual authorities that talk of these matters, such as Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, but also a statement made by the current Chief Justice when she was a Federal Court judge in a matter of Tickner v Chapman (1995) 57 FCR 451, where Her Honour said that the Minister was required to:
…have regard to what is said in the representations to bring his mind to bear on the facts stated in them, and the arguments and opinions put forward and appreciate who is making them.
The Applicant says that what has occurred here is that the Tribunal has not really engaged with the aspect of the nature of the parties' commitment to each other. The Applicant points to the statements, especially, that talk of the devotion that the Applicant has had to the sponsor since death; that is, she flew over, at considerable expense to herself, to Vietnam to get his ashes; that his final request was that his ashes be taken to Australia; that she had the ashes in her home; that she then moved them to the temple; and, that she has such devotion where the witnesses talk of her preparing fresh flowers, honouring him most weeks, but especially on anniversaries, and being quite devoted to the sponsor, in that respect.
That may be an argument that goes to what it is that the Tribunal should have done. But it is clear that the Tribunal did undertake consideration of these matters, because it did talk of persons who had testified as to the devotion that the Applicant had to the ashes of the husband.
But the Tribunal has dealt with it this way, and that is by pointing out that these persons did not see the Applicant and her sponsor together.
It would seem to me then that the arguments go more to the weight of the merits of what it is that the Tribunal should have done, rather than whether there was a consideration of that aspect. For those reasons, that part of the application fails.
The aspect of reg 1.20J though, is far more important, because, even if the Court is wrong about those other matters, the question really is as to whether the sponsor had actual standing to sponsor the Applicant in the first place. It is clear from the wording of reg.1.20J, which has been helpfully reproduced at paragraph 36 of the applicant's submissions, that the Minister was barred from allowing the sponsor to be a sponsor unless the Minister was satisfied there are compelling circumstances affecting the sponsor.
The Applicant was asked what the compelling circumstances that affected the sponsor were. The Minister helpfully went through the transcript of the interview where the Applicant made her answers. The Tribunal has properly summarised that when it said, at paragraph 68, that:
68. The Tribunal asked the applicant at hearing, several times, whether there were compelling circumstances affecting the sponsor. She stated the sponsor was depressed, unhappy and lonely before they were introduced; that she made him happy; and that they loved each other. She stated that her children are in school in Australia; that they have lived in this country since June 2013, and it would be disruptive for them to have to return to Vietnam.
None of those matters go to compelling circumstances affecting the sponsor. It was not raised before the AAT, but the Applicant now says that it was fairly raised on the material. The Applicant points to the rituals that the Applicant is performing. The support for this comes from page 188 of the court book where the brother of the sponsor said this in the last paragraph:
I hope that the court would consider her case to allow Hang to remain in Australia so that she would be able to be close to his ash, and to receive the assistance and support from Sanh and Sanh would be able to receive the care from her such as ritual ceremony so that he would not be lonely. I know that before their marriage the sponsor had been in depression and lonely. I want that after his death. Sanh would be happy just like during the time they lived together as husband and wife.
At page 205 of the court book, in the statement of the cousin who introduced the sponsor and the applicant, he said:
All of Sanh and Hang’s friends recognised their relationship. As Sanh’s ash is placed at a temple not far from where the Hang lives, thus Hang was able to feel the Sanh’s spiritual presence and support in her life. Hang and her children have considered Australia as their home and has nowhere else to go, so I hope that she and her children could continue to live in Australia to be with the Sanh’s spirit, as Sanh still has a major role in her Hang’s life.
The Applicant, through her counsel, made this submission to me: that on the basis of those two bits of evidence that the Court could conclude that what has been raised is that there is a religious significance in what it is that the Applicant is doing by tending to the ashes, that is, that the Applicant is still actually here and that the sponsor is still actually here and that unless the Applicant does what she is doing he will be sad; he will be lonely; he will be depressed; further, that because his wishes were that his ashes go to Australia - therefore, the Applicant must stay in Australia because this affects the sponsor in the afterlife according to their religion.
To say that those pieces of information, to which the Applicant points, could support such an inference, is making a jump of incredible proportions. During the course of argument, I put to the Applicant that all the Applicant was doing was tending to the ashes of the sponsor in a way that many widows tend to their husbands’ graves, memorial stones or ashes. There had to be more to ascribe a religious aspect to it. The Applicant pointed to the statements about the spirit of the sponsor; but the problem with that is that there is nothing from anyone anywhere that would say that the spirit of the sponsor is affected in the afterlife because of what is being done by the Applicant.
It does not seem to me that such a claim has been made on the evidence. There were no compelling circumstances that were able to be justified according to the AAT. That conclusion was open to it on the evidence.
There has been no jurisdictional error illustrated in the AAT’s conclusion that the bar made by reg 1.20J has not been able to be lifted. For those reasons, I find that there has been no jurisdictional error that has affected this decision. I therefore dismiss the application.
I certify that the preceding seventy-six (76 numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 9 December 2020
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