Friedrich (Migration)

[2021] AATA 4849

Friedrich (Migration) [2021] AATA 4849 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Trevor John Friedrich

VISA APPLICANTS:  Ms Chunyan Zhao
Ms Yue Zhang

CASE NUMBER:  1823447

DIBP REFERENCE(S):  BCC2016/3152715

MEMBER:Meredith Jackson

DATE:6 December 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211(2) of Schedule 2 to the Regulations

·cl.309.221 Schedule 2 to the Regulations

Secondary applicant to be reconsidered on the basis of the direction given for the primary applicant.

Statement made on 06 December 2021 at 9:00am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – regular visits – funds for the applicant and stepdaughter’s studies – provisions in the sponsor’s will – social support for the relationship – rapid development of the relationship – regular communication – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 June 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) Chunyan Zhao applied for the visa on 22 September 2016 on the basis of her relationship with her sponsor Trevor John Friedrich, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate who refused to grant the visa was not satisfied that the applicant is the spouse, of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen as defined under section 5F of the Act. Accordingly, the delegate was not satisfied that the applicant meets the requirements of subclause 309.211(2) of the Regulations.

4. The review applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments. The applicant was not represented. The hearing was assisted by an interpreter in the Mandarin and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

6. The review applicant and sponsor is Trevor John Friedrich, aged 65, a citizen of Australia. Mr Friedrich is a farmer and farm owner who has been twice married and twice divorced. He has five biological children from the two marriages, each aged over 18. The primary visa applicant is Chunyan Zhao, aged 48 years, a resident of China. She is a hotel employee in Hailin who declares one marriage and divorce. The secondary applicant is Yue Zhang, aged 19, who is her adopted daughter, included in the visa application. In August 2015 the parties were introduced through a match-making agent, Ms Ellen Wu, of Brisbane. On 9 December Mr Friedrich travelled to China to meet the applicant in person and the parties were married on 14 December 2015. Ten days later, Mr Friedrich returned to Australia. He has visited the applicant in her home country four times since.

   ISSUES AND LAW

7. There is a two stage process for this Partner visa. An applicant must first hold a Partner (Provisional) (Class UF) (Subclass 309) visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a Partner (Migrant) (Class BC) (Subclass 100) permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years after the combined application for the visas was made. The Tribunal is considering the application for the provisional visa.

8. The issue in the present case is whether the applicant was the spouse or de facto partner of the sponsor at the time of the visa application (cl 309.211) and continues to satisfy the criterion at the time of this decision (cl 309.221).

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

10. ‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

11. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1]

    [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Pochi (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a Marriage Certificate issued by the Marriage Registration (sic) of Civil Affairs Administration of Harbin, China. for a marriage between her and Trevor John Friedrich with a registration date of 14 December 2015. 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).

13. The applicant’s claims

14. In providing documentary and oral evidence to the Tribunal in the course of the review, the applicant made a number of claims which can be resolved into the following summary:

    a.That the first-named applicant Ms Zhao Chunyan is his spouse and the relationship is genuine and long-term and he and the visa applicant are deeply in love with one another;

    b.That he regards and embraces the second-named applicant Yue Zhang as his step-daughter and supports her as a full-time student. He provides for her studies through amounts of $500 sent to Ms Zhao through a third party every five to six weeks;

    c.That as the sponsor, he did not understand the English spoken by a Departmental official in China at the time of an interview conducted with him following the application and is concerned he was therefore unable to respond adequately and accurately.

    Are the other requirements for a spouse relationship met?

15. In forming a view of the relationship at time of application for the visa and at the time of this decision, the Tribunal has carefully considered the applicant’s claims and evidence against each of the matters specified in r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2). The Tribunal finds as follows.

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

16. Mr Friedrich is a farmer from the Brisbane Valley, in Queensland. He was born and raised in Esk as a third generation resident. Mr Friedrich claims he purchased his land 40 years ago and has been farming and grazing since. At the time of the visa application he was raising cattle and lucerne. Currently, he produces hay for livestock. He submitted with his Form 40SP details of his assets as a rural property with attendant infrastructure and declared a mortgage of around $13,000 at the time. He declared he does most of the farm work himself because he can rarely afford help. His wife claims she will assist him on the farm so they can earn more money. Ms Zhang claims no assets, having relinquished her claim to the ownership of housing assets arising from her marriage due to her having assisted the discharge of her former husband’s gambling debts. Ms Zhao claims her former husband does not pay her any form of maintenance or alimony.

17. There is no evidence before the Tribunal that the applicant and sponsor have joint assets or liabilities. In the hearing, Mr Friedrich stated that he had made a provision for his wife in his Will. After the hearing, he provided a copy of a Will dated 4 October 2019 which provides for three of his children, to whom he has left the farm business and savings he holds in their names. He also and makes a provision for Ms Zhao to inherit his residual estate and a further provision in favour of Yue Zhang if the distribution of the estate failed to take effect. Mr Friedrich claimed at hearing that his intent was to leave the farm to his children along with their designated savings, while leaving his own cash reserves to Ms Zhao. He estimates this to be currently around $50,000. The Tribunal will return to the matter of the Will in considering the nature of the commitment, later in these reasons, however, is satisfied Mr Friedrich has provided for Ms Zhao (and her daughter, provisionally) to inherit a part of his estate. Mr Friedrich said he does not have superannuation holdings; the farm is his super.

18. The review applicant does not claim that the parties pool their resources in joint bank accounts. He had tried but failed to open a joint account in China, he claims. The Tribunal accepts that it is difficult for parties in such circumstances, where one party does not have residency, to pool their income and savings in joint banking facilities.

19. Mr Friedrich and Ms Zhao claim that the sponsor sends funds to China for her support on a frequent and regular basis. The delegate’s decision, a copy of which was provided by the applicant to the Tribunal, records that a single money transfer was made in 2017. It was claimed to be of $2,000 Australian dollars. On review, Mr Friedrich provided the Tribunal a Statutory Declaration stating that he had provided the funds to the applicant to use for “anything she desires” however at the interview he stated he could not recall how much he had sent because at the time, he did not consider it important. After that, he stated, as the applicant has an income of her own, they did not consider regular contributions from him important. He claimed to have always paid his share of their expenses for accommodation while they were together in China. The sponsor provided the Tribunal with evidence of funds drawn on his account while in China in 2019. He also provided a summary of remittances dated from 21 November 2016 of payments of between $500 and $2,000 which he claims were directed to Ms Zhao. The summary statements are not receipts for the payments, rather they were drawn up by Mr Friedrich’s former migration agent, however Mr Friedrich provided a Statutory Declaration from Haiying Hu, a Brisbane student, dated 30 October 2021, stating that every five weeks he sends money to Zhao Chunyan on behalf of Trevor John Friedrich. The Tribunal accepts that money is sent regularly from Mr Friedrich, and on the basis of his claim in the hearing, accepts that the funds are used to support the costs of his step-daughter’s tertiary education. The Tribunal notes the evidence provided is less than fulsome, however the credibility of the review applicant, which will be discussed below, tends to support that transfers are genuinely made regularly and have been since some time in 2016, for Ms Zhao’s distribution to her daughter’s university costs. The Tribunal is satisfied that this indicates some degree of sharing of household expenses. Having carefully considered all of the factors above, the Tribunal affords the financial aspects some weight in the visa applicant’s favour.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

20. In a relationship conducted in two different countries, it is unreasonable to expect the parties to have set up a household in either place. It follows they cannot share housework. In considering the nature of the household, however, the Tribunal notes Mr Friedrich has provided credible evidence that he supports his step-daughter’s studies at Harbin University, as discussed above. The sponsor discussed the relationship he has with his step-daughter, and claimed, credibly, that while she is active and independent as a university student, he is a supporter of her academic progress, though he does not know a lot about what field she is studying in. He also feels she is a daughter to him. The applicant in her oral evidence confirmed that Mr Friedrich and her daughter are well acquainted and that her daughter is studying a Bachelor degree in international trading, with a year to go, and will then undertake a two year Masters; that will happen in Australia if she is granted a visa. She expressed that while she is aware the nearest universities are in Brisbane, her daughter is very independent and can stay in a residential college or shared accommodation.

21. The Tribunal affords the nature of the household some weight in the visa applicant’s favour.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

22. As referred to earlier in these reasons, the difficulty of representing a marriage to other people is a challenging prospect for persons in the circumstances of the parties. The sponsor claims that the relationship nevertheless has the support and understanding of a wide field of people in his own circles, and that he has met most of her family. Mr Friedrich claimed at the hearing that his close friends in his hometown are very aware of the relationship. At the time of the visa application, he provided three Form 888 statements from friends who claimed to have known Mr Friedrich for between 38 years and seven years and whose submissions were strongly supportive of the relationship as deeply loving and genuine. On of the 2016 declarants, Mr Leonard James Smyth, who declares he has known the sponsor since 2009 as a golfing friend, provided a statement at the time of application, and a further one on review, and also attended the hearing to give evidence. Mr Smyth, a former building surveyor, claims people at their mutual golf club are “ready to support him” (Mr Friedrich).  He claimed that after golf, Mr Friedrich is known for hurrying off to meet a deadline for calling his wife in China. He expresses clear acceptances that the relationship is genuine “I’ve been through it all, seen heaps of emails, they seem to be a pair who should be together,” he stated. He claimed he and other friends, including locals Richard and Judith Marschke, who provided a Form 888 and a letter on review, consider the sponsor to be a man of great character, hard working and “honest as the day he was born”. The Marschke letter describes the photographs they have seen after the sponsor’s five trips to China and express in their signed letter a high level of support and pleading, for the relationship to be facilitated by a visa grant. The witnesses have committed to supporting the parties and making lifelong friends with the applicant once onshore.

23. Ms Zhao provided with the application two statements dated 5 August 2016: one from Zhao Shujuan, who describes Ms Zhao as an aunty, who declares the parties to be in love and the sponsor to treat the second named applicant as a daughter and a princess; the second is from LiPeng Zhao, who claims to have known Ms Zhao for 17 years. He offers himself as a witness and supports the relationship warmly.

24. In the hearing, Mr Friedrich addressed a concern raised by the Tribunal that the parties’ marriage appeared to happen very quickly and this might lead the Tribunal to conclude that it was hastily arranged and therefore not genuine, especially as there appeared to have been no wedding planning and no wedding banquet. Mr Friedrich stated that in December 2015, he needed to get back to the farm. He claimed he had gone to China to meet Ms Zhao, not to marry her, but the two had fallen in love instantly, having gotten to know each other for some time online. In the circumstances, they saw no reason not to go ahead and marry there and then. Both Mr Friedrich and Ms Zhao stated that on the sponsor’s next trip to China they had toured around to meet her family, and they had celebrated the wedding at every stop. Mr Friedrich and Ms Zhao, in providing oral evidence, did not give meticulous accounts of each other’s relatives and family structures. Ms Zhao stated she barely knew the sponsor’s family, however it was clear to the Tribunal that the parties each knew enough about the other’s family circumstances to be genuinely embracing them, and in the light of the language barriers, accepts an effort has been made to meet one side, while the other introductions have been hampered by not being present in Australia. The Tribunal affords the social aspects, on balance, some weight.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

25. The parties were introduced through a marriage broker in 2015. Mr Friedrich stated he was looking for a life companion and had met a couple of women but things were not right. Ms Zhao states she too was hopeful of a relationship but she did not want to marry “a bad man”. The parties met online in August 2015. They met in person on 12 December 2015 and as stated earlier, were married two days later. Ten days later, the sponsor returned to Australia. The Tribunal noted the rapid development of the relationship and raised it with the sponsor and applicant in the hearing, stating that the circumstances might possess an uncomfortable similarity to a contrived marriage. The Tribunal added that the delegate had not been satisfied the marriage was proven to be a spousal relationship, partly because there was inadequate evidence to satisfy the specified considerations, and partly because a native Mandarin speaking official had identified significant inconsistencies in their separate oral evidence and subsequently the delegate found the relationship, to summarise the findings very briefly, was not genuine. A particular concern raised was that the applicant had claimed that her daughter was her biological child, yet later acknowledged that the child had been adopted. Further, the delegate noted that the applicant did not speak more than very basic English, the sponsor did not speak Mandarin, adding to the doubt about the relationship.

1. At the time of this decision, the parties have been in a married relationship since December 2014; therefore, the relationship is almost seven years in duration. At the time of the visa application the parties had been married for around nine months. At the time of the primary decision, they had been married for close to two years and nine months.

2. The Tribunal on review, therefore, is considering a marriage that has been wholly conducted offshore, save for several month-long trips to China by the sponsor (claimed to be for the purpose of visiting his spouse), which are confirmed in his movement record, for seven years. It appears to have survived. There have been difficult factors present: language limitations, different cultural norms in the parties’ respective countries; the lack of financial resources to fund more regular trips for the sponsor to China; the special demands of solo farming, which do not allow planning in a manner suited to such challenges; and as is well known by all, a global pandemic which has all but eliminated further personal visit prospects until the present time, and still presents obstacles; and Ms Zhao’s overall immigration context.

3. The Tribunal has given long consideration to these factors and to the extent to which they should be taken into account in forming a view of the nature of the commitment and broadly accepts they are valid barriers to the normal conduct of a relationship. The Tribunal is satisfied they offset its concerns that the parties have not spent much time together in seven years. Further, the Tribunal is satisfied the factors listed above have had a major impact on the parties’ ability to provide supporting evidence of a spousal relationship.

4. The Tribunal notes this is a matter where, in assessing the relationship at the time of application, the delegate did not have the advantages of the effluxion of time and coherent information about the sponsor’s claims in particular, made at an in-person hearing. The Tribunal accepts the sponsor’s claim that when interviewed by a person by telephone from China about the relationship, he had almost no idea of what was being said or asked, because he was unable to fathom the accented English. “I did not understand a word of what was being said,” he stated in the hearing.

5. The Tribunal heard evidence from Ms Zhao on the telephone from China, aided by an interpreter, and that of the sponsor at an in-person hearing at the Tribunal, given separately from his wife and separately from his witness Mr Smyth. The sponsor, for his part, appeared to the Tribunal to be earnest, credible and convincing in describing his relationship. He professed repeatedly his love and devotion to his new partner and his step-daughter. The witness, Mr Smyth, also presented highly credibly. Mr Smyth stated that they are country people, and Mr Friedrich is profoundly honest and straightforward. To support the claim, he provided a detailed account of how often and how determinedly the sponsor reaches out to his wife in China in daily phone calls and text messages.

6. The applicant Ms Zhao gave evidence and stated she could understand the interpreter very well. Ms Zhao presented as a professional woman with a strong respect, regard and love for her husband, whom she considers to be a “good man” and “very kind”. Ms Zhao presented as intelligent and proud in giving evidence, particularly when talking about her new husband and her daughter and how they would transition to Australia. She stated that she had a close friend living nearby in Australia, at the Sunshine Coast, and her daughter was very independent. The Tribunal addressed with her the issue of whether the child was biologically hers or adopted. She acknowledged that she had initially not told the truth to the Department about that. “I did not want to pressure her” (daughter) with the information, at first, she stated. She addressed the issue raised in the delegate’s decision concerning the disposition of housing assets arising from her marriage that appeared unexplained. The applicant claimed that her husband and she had lost the assets to the demands of debtors as her husband was a gambler.

7. In any offshore partner case where the documentary evidence is at best, patchy, the best and preferable decision is often made with regard to the credibility of the parties at a hearing. The Tribunal had an open mind on this matter prior to the hearing. It was persuaded by the credibility of Mr Friedrich in giving evidence, the practical frankness of his witness, Mr Smyth, and the warm statements about her husband by Ms Zhao, that the relationship was genuine rather than contrived; a case of two people coming together via a broker when they had little chance of meeting each other any other way, and who had found genuine happiness together. The Tribunal accepts that the relationship has not been tested by cohabitation over a sustained period, however, notes that there have been five extended trips to China and the relationship has survived them.

8. Towards the end of the hearing, the Tribunal asked the applicant, as it is wont to do in such matters, what would happen if his wife were not granted the visa. After a short pause, Mr Friedrich responded, stating that he did not see how the two could survive in China if he went there to live. It was not feasible. So, he said, he would just have to keep going over to see his wife as often as he could afford to. He added: “If that happened, well, I would hope that I would go first (meaning pass away). Because at least she would then have $50,000 and that would go a long way in China.” The Tribunal asked whether he might instead consider changing his Will because the relationship would not have much of a future. He said there was no possibility of that because Ms Zhao was his wife.

9. There is no suggestion or claim before the Tribunal that the relationship is not exclusive to the parties. Having considered of the above, the Tribunal weighs the nature of the commitment in the applicant’s favour.

   Overall conclusion

10. The Tribunal having carefully considered all the evidence before it is satisfied that Mr Friedrich and Ms Zhao have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and live together and not separately and apart on a permanent basis.

11. 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 at the time of this decision.

12. Therefore the visa applicant meets cl.309.211 and cl.309.221.

13. 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 309 visa.

    Second named applicant Yue Zhang

14. The second named applicant Yue Zhang was aged 14 at the time of the visa application. At the time of this decision, Yue Zhang is aged 19 years. The parties have given evidence that Yue Zhang is a full time student at Harbin University and wholly dependent on the visa applicant. As the applicant’s entitlement to a visa is wholly dependent on the grant of a visa to the first-named applicant, the appropriate course is to remit the application to the Minister for reconsideration of the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211(2) of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Second named applicant to be reconsidered on the basis of the direction given for the primary applicant.

    Meredith Jackson
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)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.

    (2)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).

    (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.

    (4)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).