Ha (Migration)

[2022] AATA 1876

Ha (Migration) [2022] AATA 1876 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kien Chi Ha

VISA APPLICANT:  Ms Le Quyen Duong

REPRESENTATIVE:  Mr Chit Thian Chua

CASE NUMBER:  1902560

DIBP REFERENCE(S):  BCC2018/1748870

MEMBER:Donna Petrovich

DATE:1 June 2022

PLACE OF DECISION:  Melbourne

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

·cl.309.213 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 01 June 2022 at 2:00pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 Partner (Provisional) – sponsorship limitation requirement – review applicant previously sponsored two other people – compelling and compassionate circumstances – mental health issues – regular cohabitation – medical treatment in Australia – longstanding relationship – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 309.212, 309.222; rr 1.03, 1.20         

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 28 January 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 April 2018 based on her relationship with the sponsor, 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 refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 in Schedule 2 of the regulation.  This is because the review applicant has previously sponsored two (2) other people and consequently the sponsorship by the review applicant is subject to the sponsorship limitation in reg 1.20J(1).  The delegate was of the view that compelling circumstances did not exist affecting the sponsor to justify the waiver of the sponsorship limitation in accordance with reg. 1.20(J)(2).

4. The review applicant/sponsor (Mr Kien Chi Ha) appeared before the Tribunal on 15 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Le Quin Dang (the applicant/visa applicant) and Mr My Tu Huynh (the review applicant’s extended family member).

   Background

5. The review applicant is a fifty-four (54) year old Vietnamese man.  He has previously sponsored two (2) partners to Australia, but the relationships did not continue.  The Tribunal heard that the review applicant suffers from mental health issues, including depression and anxiety.  He has a stutter which becomes worse when he becomes anxious.  The review applicant is on a disability support pension and is unable to work.  This is due to his mental health issues and an injured arm which has limited movement.

6. The review applicant met the applicant/visa applicant through a family friend who introduced them in March 2015.  The couple spoke regularly and stayed in contact via telephone and other apps.  In January 2016, they met in person and married on 26 February 2016.  Since then, they have spent three (3) months of every year together, except when it became impossible due to the Covid 19 pandemic.

7. The review applicant suffers from memory loss, misses his wife and struggles to look after himself.  He is unable to relocate to Vietnam to be with his wife as he requires medical treatment which is not available to him in Vietnam.  Also, he could not qualify for his disability pension if he were to relocate overseas.     

8. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the review applicant is affected by the sponsorship limitations set out in paragraph 1.20J(1), and whether there should be a waiver of the sponsorship limitation.  The ability to waive the sponsorship limitation is contained in cl. 1.20J(2).  Two (2) previous visa applicants, sponsored by the review applicant, have previously been granted Partner visas. Therefore, the sponsor is affected by the sponsorship limitation set out in paragraph 1.20J(1) sub regulation.

    Are the sponsorship requirements met?

11. Clause 309.213(1)(a) requires that the visa applicant/applicant is sponsored by the spouse or de facto partner (in this case, the review applicant) where such person has turned 18.  Clause 309.213(1)(b) provides that if the sponsor spouse has not turned eighteen (18), then the visa applicant/applicant is to be sponsored by the review applicant’s/sponsor’s parent or guardian who has turned 18 and is an Australian citizen, permanent resident or an eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

12. At the time of decision this sponsorship must have been approved and still be in force. 

13. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant, any conviction for a relevant offence.  The conviction of the sponsor is to be disregarded if the conviction has been quashed or otherwise nullified, or the sponsor has been pardoned with the effect that they are taken never to have been convicted of the offence: cl.309.222.

14. Approval of the sponsorship is subject to limitations contained in r.1.20J of the Regulations.  Reg 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship.  Reg. 1.20KA sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences, where the visa application was made on or after 27 March 2010.  Sponsorship limitations are also contained in r.1.20KC in relation to sponsors convicted of a relevant offence, who have a significant criminal record, where the visa application was made on or after 18 November 2016.

15. The Tribunal finds that the review applicant’s/sponsor’s age and identity are not in question and that the sponsorship is still in force in relation to the applicant/visa applicant.  There is nothing to indicate to the Tribunal that the review applicant/sponsor has any outstanding legal matters relating to any of the sponsored applicants requiring consideration, or disclosure.

16. The Tribunal heard during the 12 December 2021 hearing that the review applicant/sponsor and visa applicant/applicant spend as much time as possible with each other given their circumstances.  The review applicant/sponsor visits the visa applicant/applicant in Vietnam, staying with her in her house.  When together they live as man and wife.  Their families accept that the couple are husband and wife.  Evidence supporting this arrangement and understanding was provided by the brother-in-law (Mr My Tu Huynh) of the review applicant/sponsor.  He has visited the couple on three (3) occasions in Vietnam at the home of the of the applicant/visa applicant where they co-habitat.

17. Evidence was also provided at the hearing of the declining health of review applicant/sponsor.  He finds it difficult to take care of himself, suffers mental health issues and is losing his memory.  He cannot stay in Vietnam any longer than three (3) months without his disability support pension being affected and he is unable to get suitable treatment for his mental health in Vietnam.  It is therefore not feasible for him to relocate overseas to be with his wife.

18. The Tribunal heard in evidence that the review applicant/sponsor has travelled to Vietnam every year, except for one (1) year when it was impossible because of the Covid 19 pandemic.  When the review applicant/sponsor travels to Vietnam he stays with the visa applicant/applicant in her home, and they live together as husband and wife.  They do household duties together and undertake some travelling to visit friends and family.  The relationship has been established for six (6) years and is continuous to the exclusion of all others.  The Tribunal is of the view that it is a longstanding relationship. 

19. The Tribunal in considering these circumstance finds that the relationship is genuine and longstanding.  The review applicant/sponsor has failing health, fragile mental health and is suffering memory loss which was apparent during the hearing. The Tribunal is of the view that the poor and ailing health of the sponsor/review applicant, constitutes compelling and compassionate circumstances justifying the waiver of the sponsorship limitation contained in cl.1.20J(1). 

20. The Tribunal is of the view that cl. 120J(2) is satisfied such that the sponsorship of the applicant/visa applicant should be approved given the compelling and compassionate circumstances affecting the sponsor.    The Tribunal in considering the evidence places weight in favour of the application.     

21. Consequently, based on the evidence the Tribunal finds that the requirements of cl. 309.213 and cl. 309.222 are met.    

22. 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.

    DECISION

23. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.213 of Schedule 2 to the Regulations

    ·cl.309.222 of Schedule 2 to the Regulations

    Donna Petrovich
    Member