LUONG (Migration) - [2022] AATA 1206

LUONG (Migration) [2022] AATA 1206 (12 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Nhe LUONG
VISA APPLICANT:  Mrs Thi Ut TRAN
REPRESENTATIVE:  Mr Victor Huynh (MARN: 1101202)
CASE NUMBER:  1900414
DIBP REFERENCE(S):  BCC2018/1296788
MEMBER:Mila Foster
DATE:12 April 2022
PLACE OF DECISION:  Sydney
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 309.211 of Schedule 2 to the Regulations,
·cl 309.213 of Schedule 2 to the Regulations,
·cl 309.221 of Schedule 2 to the Regulations, and
·cl 309.222 of Schedule 2 to the Regulations.

Statement made on 12 April 2022 at 9:29am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – sponsor’s fourth marriage and third sponsorship – valid marriage – sponsor’s frequent visits to Vietnam – mutual commitment to a shared life – compelling circumstances – abandonment by two previous wives – medical conditions – longstanding relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.15, 1.20, 4.15; Schedule 2, cls 309.211, 309.213, 309.221, 309.222
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 November 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 19 March 2018 on the basis of her relationship with her 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.222 of Schedule 2 because the sponsorship limitation in r 1.20J applied.
The review applicant appeared before the Tribunal on 4 February 2022 to give evidence and present arguments. Due to the COVID-19 pandemic the hearing was conducted by video. The Tribunal also received oral evidence from the visa applicant. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether cl 309.222 is met. The claims and evidence in this matter include the Department file…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LUONG (Migration)

Details

AGLC: LUONG (Migration) [2022] AATA 1206
Case: [2022] AATA 1206
Decision Date: 12 April 2022

CaseChat Overview and Summary

This matter concerned a Partner (Provisional) (Class UF) visa (Subclass 309) application. The applicant sought review of a decision concerning her eligibility for the visa. The review applicant, an Australian citizen, was the sponsor. The central dispute revolved around the sponsor's history of marriages and visa sponsorships, and whether these circumstances warranted the application of a sponsorship limitation under regulation 1.20J.

The Tribunal was required to determine whether the sponsor's history, including three previous marriages and sponsorships, impacted the current visa application. Specifically, the court needed to consider the application of regulation 1.20J, which imposes limitations on sponsors with multiple previous sponsorships. The Tribunal also had to assess whether the sponsor and applicant were in a genuine spouse relationship, and whether other relevant criteria for the visa, including those relating to sponsorship approval and time of application, were met.

The Tribunal found that while the sponsor had a history of multiple marriages and sponsorships, compelling circumstances existed that justified not applying regulation 1.20J in this instance. These circumstances included the abandonment of two previous wives, the sponsor's medical conditions, and the longstanding nature of his relationship with the applicant, which had involved frequent visits to Vietnam and a mutual commitment to a shared life. Consequently, the Tribunal was satisfied that the applicant met certain specified criteria for the visa, including clauses 309.211, 309.213, 309.221, and 309.222.

The Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant had satisfied the specified criteria. This allowed for further consideration of the remaining criteria for the Subclass 309 visa.

Orders

Orders of the court

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Background

Background to the litigation

For reasons given below the Tribunal is satisfied that r 1.20J should not be applied in this case. However, as the only permissible direction the Tribunal can make when remitting a matter for reconsideration is that the applicant has satisfied a specified criterion for the visa,[2] consideration of cl 309.222 necessitated consideration of cl 309.213 and hence, in turn, cl 309.211(2) as the delegate did not make findings on those time of application criteria. [2] R 4.15(1)(b). Background and development of relationship The following background is based on claims made by the visa applicant and the review applicant (the parties). Where necessary the Tribunal has made findings on the claims further below. The visa applicant is 57 years old. She was born in Vietnam; she is a citizen and resident of Vietnam. She had no spouse or de facto relationships prior to marrying the review applicant. The review applicant is 70 years old. He was born in Vietnam. He married Thi Xua Huynh (his first wife) in Vietnam and they had six children. In 1980 the review applicant settled [in Australia] with his two eldest children. He was granted Australian citizenship in 1984. After the review applicant came to Australia his wife had an affair with another man, and he met and lived with Thi Bao Ngoc Nguyen with whom he had two children. The review applicant subsequently sponsored his first wife as his spouse and his remaining four children for visas which they were granted in 1992. The review applicant and his first wife divorced in 1993. He married Thi Bao Ngoc Nguyen (his second wife). The review applicant lived with his second wife until her death in 2004. The review applicant married his third wife, Thi Be Phuong Nguyen, in 2004. He sponsored her and her two children for visas which they were granted in 2008. The parties met in Vietnam in 2012 when the review applicant went there for his mother’s funeral. They met again when the review applicant returned to Vietnam in February 2014. In October 2014 the review applicant and his third wife separated. In April 2015 the review applicant returned to Vietnam and the parties met again. On 4 December 2015 the review applicant proposed to the visa applicant. The review applicant’s third marriage ended by divorce on 5 December 2015. The review applicant returned to Vietnam and the parties registered their marriage there on 25 February 2016. The parties had a marriage ceremony on 20 March 2016. The review applicant returned to Vietnam to visit the visa applicant most recently in January 2020. Unable to return to Australia due to the pandemic, the parties lived together until the review applicant returned to Australia in January 2022. Are the parties in a spouse relationship? It is claimed that the visa applicant is the spouse of the review applicant who is an Australian citizen. Submitted in support of the visa application were copies of the review applicant’s Australian citizenship certificate and Australian passports including a current passport. On that evidence the Tribunal finds the review applicant has been an Australian citizen since 22 November 1984.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether cl 309.222 is met. The claims and evidence in this matter include the Department file relating to the visa application, supporting documents and photographs submitted on review, and the oral evidence given at hearing. Clause 309.222 is a time of decision criterion which requires the sponsorship referred to in cl 309.213 to be approved and in force: cl 309.222(1). Approval of sponsorship is subject to limitations contained in the Regulations including the limitation in r 1.20J. Further, 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, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 309.222(2). Clause 309.213 is a time of application criterion which specifies who must sponsor the visa applicant. Relevantly, cl 309.213 states that a visa applicant referred to in cl 309.211(2) must be sponsored by the spouse or de facto partner referred to in the subclause (where the spouse or de facto partner has turned 18).[1] The visa applicant referred to in cl 309.211(2) is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. [1] Or parent or guardian of the spouse if the spouse has not turned 18. For reasons given below the Tribunal is satisfied that r 1.20J should not be applied in this case. However, as the only permissible direction the Tribunal can make when remitting a matter for reconsideration is that the applicant has satisfied a specified criterion for the visa,[2] consideration of cl 309.222 necessitated consideration of cl 309.213 and hence, in turn, cl 309.211(2) as the delegate did not make findings on those time of application criteria. [2] R 4.15(1)(b). Background and development of relationship The following background is based on claims made by the visa applicant and the review applicant (the parties). Where necessary the Tribunal has made findings on the claims further below. The visa applicant is 57 years old. She was born in Vietnam; she is a citizen and resident of Vietnam. She had no spouse or de facto relationships prior to marrying the review applicant. The review applicant is 70 years old. He was born in Vietnam. He married Thi Xua Huynh (his first wife) in Vietnam and they had six children. In 1980 the review applicant settled [in Australia] with his two eldest children. He was granted Australian citizenship in 1984. After the review applicant came to Australia his wife had an affair with another man, and he met and lived with Thi Bao Ngoc Nguyen with whom he had two children. The review applicant subsequently sponsored his first wife as his spouse and his remaining four children for visas which they were granted in 1992.

Decision

Reasons for decision

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 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.309.211 of Schedule 2 to the Regulations,·cl.309.213 of Schedule 2 to the Regulations,·cl 309.221 of Schedule 2 to the Regulations, and ·cl 309.222 of Schedule 2 to the Regulations.Mila FosterMember

Ratio Decidendi

Legal Principle Established

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