Hoang (Migration)

Hoang (Migration) [2018] AATA 3460 (31 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thanh Tam Hoang
CASE NUMBER:  1720935
DIBP REFERENCE(S):  BCC2017/1616137
MEMBER:Mark O'Loughlin
DATE:31 August 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 31 August 2018 at 10:58am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Whether there are compelling reasons to waiver the Schedule 3 criteria – Relationship breakdown – Sponsorship withdrawal – No contact with former partner and children – Family violence allegations – No substantial evidence – Decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 820.211, 820.221 Schedule 3 criteria 3001, 3003, 3004
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 25 August 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 5 May 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 (d) because at the time of the application on 5 May 2017 the applicant did not hold a substantive visa, did not satisfy Schedule 3 criterion 3001 and there were not compelling reasons not to apply that criterion.
On the 22 May 2018 the applicant’s then representative, Mr Jack Ta, filed submissions in which he conceded on the applicant’s behalf that the applicant had not held a substantive visa since the 18^th of August 2013 and further that the applicant does not meet the Schedule 3 criteria.
Mr Ta urges upon the Tribunal that there are compelling reasons not for applying the Schedule 3 criteria. If that is correct the applicant will meet the requirements of cl.820.211(2) as long as he was the spouse of the sponsor at the time of the application.
If the Tribunal were to find that the applicant met the requirements of cl.820.211(2) at the time of the application, the applicant would need to progress to satisfy the requirements of cl.820.221(1) which sets out the requirements that an applicant must meet at the time of this decision.
In that event, in this matter cl.820.221(1) would be satisfied if the applicant either;
a.Continued to meet the requirements of (relevantly) subclause 820.211 (2); or
b.Met the requirements of subclause (2) or (3) of cl.820.221.
The applicant appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. There were no other witnesses. 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 by Ms Thu Hong Thi Do his registered migration agent. She registered as the applicant’s migration agent on the day of the hearing. The Tribunal understands that she attended at the instigation of the applicant’s previous agent, Mr Jack Ta and she referred to his submissions.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave evidence that he left the former sponsor’s home at the end of September 2017 although he dated the end of their relationship as November 2017 when the former sponsor notified the Tribunal that she was withdrawing her sponsorship. He said that he has had no contact with her since then and said that the relationship had broken down.
The Tribunal accepts the applicant’s evidence and finds that the relationship broke down at the latest in November 2017, since which time the applicant and the former sponsor have had no mutual commitment to a shared life to the exclusion of all others as husband and wife or otherwise. The Tribunal therefore finds that since November 2017 the applicant has not been the spouse or de facto partner of the former sponsor.
There are some circumstances (discussed below) in which an applicant’s application could succeed despite there being no spousal relationship at the time of the decision.
Before deciding whether those circumstances are relevant to this application, the Tribunal will consider whether or not the applicant met the “time of application” criteria set out at cl.820.211.
Background
For the applicant to satisfy the time of application criteria, he will need to have satisfied the requirements of cl.820.211 at the time of his application on the 5/05/2017.
He was not the holder of a Subclass 771 (Transit) visa and so he satisfied cl.820.211(1)(a).
To succeed he must also have satisfied cl820.211(1)(b) at the time of application, which requires him to meet the requirements of subclause (2), (5), (6), (7), (8), or (9) of clause 820.211.
The applicant does not complain of the delegate’s finding that he did not satisfy the requirements of subclauses (5), (6), (7), (8) or (9) of clause 820.211. The Tribunal similarly finds that the applicant’s circumstances do not fall within those provisions and the Tribunal finds that he does not meet them.
Therefore the applicant would need to have satisfied cl.820.211(2) at the time of application for him to satisfy cl.820.211.
Before the Tribunal considers the other requirements of cl.820.211, the applicant has conceded that he did not hold a substantive visa at the time of application and so the Tribunal finds that cl.820.211(2)(d) needs to be met.
The applicant did not enter Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder and so cl.820.211(2)(d)(i) is not met.
That being the case, cl.820.211(2)(d)(ii) does apply.
The applicant would satisfy cl820.211(2)(d)(ii) if he had satisfied Schedule 3 criteria 3001,3003 and 3004 at the time of his application. The delegate found that he did not do so and further the applicant’s representative conceded that he did not in his submissions. The Tribunal accepts these submissions.
Schedule 3 criterion 3001 requires that the application is made within 28 days of the “relevant day” as defined.
The applicant last held a substantive visa on 18/08/2013.
The applicable provision of criterion 3001 is (2)(c)(i) as the applicant ceased to hold a substantive visa after 1 September 1994. Therefore the definition of “relevant day” in (2)(c)(iii) applies and in this case the “relevant day” is the last day when the applicant held a substantive or criminal justice visa.
The application was made on 05/05/2017 which is more than 28 days after the applicant last held a substantive visa. The applicant does not therefore satisfy Schedule 3 criterion 3001.
The Tribunal therefore finds that the applicant did not satisfy the Schedule 3 criteria at the time of his application.
The issue in the present case is whether there are compelling reasons for not applying the Schedule 3 criteria.
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, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: 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.
The applicant’s former representative, Mr Jack Ta, provided submissions to the Tribunal on 22 May 2018. These submissions were adopted by the applicant’s representative at the hearing, Ms Do.
The submissions refer to the existence of relevant “compelling reasons” at paragraph 13 and following.
At paragraph 14 the submissions suggest that the applicant and the “sponsor” were in a long standing relationship. The assertion is that the relationship started in June 2015 when the parties met. The submission is that the relationship developed very quickly and was a committed and exclusive relationship within weeks.
Although the Tribunal has reservations about the speed with which the relationship developed, the applicant’s best case is that it started in early July 2015 and finished in November 2017.
The Tribunal is not satisfied that the length of the relationship in this matter is a compelling reason for not applying the criteria.
At paragraph 15 of the submissions it is submitted that the former sponsor and her children would have suffered emotional distress and hardship if they had been separated from the applicant.
The submission appears to assert that at some time in the past the former sponsor and her children would have suffered emotional distress and hardship if they had been separated from the applicant.
But the applicant has in fact now been separated from the former sponsor and her children for nearly a year. There is no evidence about the effect of his separation on the former sponsor and her children. If they did not suffer emotional distress and hardship when he left, the submission that they “would have” so suffered is hypothetical and unsupported. In the absence of evidence of such suffering, the Tribunal places little weight on this submission.
If the former sponsor and her children did suffer emotional distress and hardship when he left, granting this application will not avoid or alleviate it.
In any event, the applicant gave evidence that he has had no contact with the former sponsor or her children since he left and he could not advise what impact his departure has had on them.
Given that there is no evidence about this, the Tribunal cannot be satisfied that this is a compelling reason for not applying the Schedule 3 criteria.
At paragraphs 16 to 18 inclusive of the submissions it is asserted that the applicant was subjected to family violence committed by the (then) sponsoring partner and that this caused the failure of the relationship.
Generally family violence of the type alleged is raised in the context of a relationship that falls within cl.820.211 (8) or (9) or cl.820.221 (3).
The applicant has never held a prospective marriage visa so cl.820.211 (8) and (9) do not apply.
cl.820.221 (3) is a “time of decision” criterion and does not relate to the Tribunal’s assessment of the time of application criteria.
Having said that, the Tribunal is not fettered in considering what might be a compelling reason not to apply the Schedule 3 criteria and so will consider the allegation of family violence.
The submissions suggested that the former sponsor would not allow the applicant to go anywhere without her and the children. It is stated that the former sponsor would threaten and intimidate the applicant and that he began to feel “quite terrified and traumatised by her behaviour”. This was a submission only and cannot be evidence for the purposes of this application.
The applicant was asked about the threats and his evidence did not support his representative’s submission.
In evidence the applicant said that the former sponsor became annoyed at his social life. He said that he went out “a few days a week” and that there was ultimately tension about this. He said that the former sponsor threatened to terminate the relationship on more than one occasion.
When asked about threats directed at him or at his property rather than at the relationship he gave as an example an incident one day when he was about to go to work. The former sponsor asked him to get the clothes out of the dryer for her. He said that he was busy and was unable to do that.
When asked how the former sponsor reacted to that he said that she seemed disappointed.
He said that these issues were probably not quite threats and that the only actual threats were against the relationship. The suggestion in submissions by the representative that the former sponsor would threaten and intimidate the applicant and that he began to feel “quite terrified and traumatised by her behaviour” is not sustained by the evidence.
The Tribunal finds that there were no threats against the applicant or his property.
Given the Tribunal’s findings above, the Tribunal finds that there is no compelling reason for not applying the Schedule 3 criteria that arises from family violence.
At paragraph 19 of the submissions the Tribunal is asked to consider the statutory declarations of the applicant and the former sponsor in relation to the former sponsor’s reliance on the applicant and the emotional hardship that the sponsor and her children would have suffered in the absence of the applicant.
There are 2 statutory declarations available to the Tribunal. One is dated 28^th November 2017 and is the instrument by which the former sponsor sought to withdraw her sponsorship. It does not refer to the issues in any relevant way.
The other is one that was executed by both the applicant and the former sponsor and submitted to the Department of Immigration and Border Protection in support of this application. It is dated 31^st July 2017.
That statutory declaration does not specifically say what emotional hardship the former sponsor would have suffered in the absence of the applicant but the general effect, particularly under the heading “Commitment”, is that the applicant makes a positive contribution to the lives of the former sponsor and her children.
The Tribunal notes that the relationship failed within at most 4 months of that statutory declaration being executed. On the applicant’s evidence the relationship failed because of the former sponsor’s unreasonable demands of him.
There is tension between the content of the statutory declaration and the applicant’s evidence but it is not inconceivable that the relationship soured in the 4 months after the statutory declaration was executed.
The Tribunal makes no finding about the accuracy of the statutory declaration of 31^st July 2017 but finds that it does not provide a compelling reason why the Schedule 3 criteria should not be applied.
Paragraph 19 of the submission also suggests that the Tribunal should consider the applicant’s evidence regarding the children’s medical circumstances (supported in part by medical evidence).
The Tribunal accepts that one of the children, Thang, has been diagnosed with autism spectrum disorder. The applicant gave evidence that Thang needed help.
The applicant did not give evidence of any medical condition suffered by the other children. There are suggestions in submissions made on the applicant’s behalf that the eldest child suffered from depression but this is not supported by other evidence and in particular there is no medical evidence to support this.
The applicant gave evidence that he no longer has any contact with the former sponsor or her children.
The Tribunal finds that the medical circumstances of the children will not be improved if the applicant is granted a visa and therefore those circumstances do not provide a compelling reason for not applying the Schedule 3 criteria.
Paragraph 19 of the submissions also refers to the alleged family violence. The Tribunal’s consideration of this subject is set out above.
The Tribunal is not satisfied that any of the individual reasons for not applying the Schedule 3 criteria is compelling. Indeed, the Tribunal is not satisfied that any of the individual reasons carries substantial weight. The Tribunal further finds that the reasons raised, when considered cumulatively, are not compelling.
The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Mark O'Loughlin
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(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).
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(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.

[2018] AATA 3460

31 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction