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

1. 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).

2. 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).

3. 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.

4. 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.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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

11. 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.

12. 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.

13. 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.

14. In 1980 the review applicant settled [in Australia] with his two eldest children. He was granted Australian citizenship in 1984.

15. 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.

16. 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.

17. 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.

18. 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.

19. In October 2014 the review applicant and his third wife separated.

20. 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.

21. The review applicant’s third marriage ended by divorce on 5 December 2015.

22. 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.

23. 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?

24. 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.

25. ‘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).

26. Submitted in support of the visa application was a photocopy of the parties’ Vietnamese marriage certificate accompanied by an English translation which states that the parties’ marriage was registered on 25 February 2016. In the absence of evidence to the contrary the Tribunal accepts that the visa applicant had not been married before. The Tribunal does not have before it, certificates relating to the review applicant’s first marriage and divorce, his second marriage, his second wife’s death, or his third marriage. It does however have before a divorce order made by the Federal Circuit Court of Australia terminating his marriage to his third wife on 5 December 2015. The order states that the review applicant’s marriage to his third wife was proven. Given the review applicant’s third marriage is proven the Tribunal finds the review applicant was free to marry his third wife and thus accept that his first marriage ended in divorce and his second marriage ended upon the death of his second wife. With his third marriage ending by divorce, the review applicant was free to marry the visa applicant.

27. Thus, on the evidence before it, the Tribunal is satisfied that 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).

28. Department records on the Department file indicate that the file provided to the Tribunal for the purposes of the review is incomplete. The records indicate that missing documents include:

    a.numerous money transfers (made by the review applicant to the visa applicant) in 2015, 2016, 2017 and 2018,

    b.a number of Vietnamese temporary residence registration documents,

    c.the review applicant’s telephone bills,

    d.a number of airplane tickets and boarding passes, and

    e.a number of photographs including photographs of the parties’ wedding.

29. Evidence on the Department file includes a brief statement made by the visa applicant and two statutory declarations from friends of the review applicant about the genuineness of the parties’ relationship.

30. On review the only supporting evidence submitted were a Vietnamese temporary residence registration document and photographs said to have been taken between 2020 and 2022. The review applicant’s representative did not make any written submissions.

31. The review applicant and visa applicant were not compelling witnesses. There was a lack of precision and clarity in their oral evidence. There seemed to be some exaggeration about matters relating to the waiver of the limitation in r 1.20J. There were also some inconsistencies between the oral evidence the visa applicant initially gave and that of the review applicant which required clarification and explanation. The review applicant stated that the visa applicant had a limited education and was nervous. The Tribunal does not believe her level of education would have affected her ability to give evidence about personal matters such as her relationship with the review applicant. However, she did appear nervous, and the Tribunal has taken this into account as well as the fact she gave evidence via video and through an interpreter. Ultimately the Tribunal finds that in significant and relevant respects the parties gave consistent evidence about their relationship and conveyed emotions about their relationship which seemed genuine about wanting to be reunited. The Tribunal has given significant weight to the evidence which indicates that the review applicant had made several trips to Vietnam to visit the visa applicant since they married and that they lived together in her home for substantial periods of time. The Tribunal notes in particular the most recent two-year period of cohabitation from January 2020 until January 2022.

32. On the totality of the evidence and having regard to the considerations in r 1.15A(3), the Tribunal is satisfied that at the time of application the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship was genuine and continuing, and they were not living separately and apart on a permanent basis.

33. The Tribunal thus finds that at the time of application the visa applicant was the spouse of the review applicant, an Australian citizen, and hence that the requirements of cl 309.211(2) are met. Further, having met cl 309.211(2) the visa applicant satisfies cl 309.211.

34. A visa applicant who continues to meet the criterion in cl 309.211 at the time of decision meets cl 309.221. The Tribunal is satisfied on the evidence before it and having regard to the above considerations in r.1.15A(3), that the visa applicant continues to meet the requirements of cl 309.211 at the time of its decision. The visa applicant has thus also met cl 309.221.

    Sponsorship requirements

35. Submitted in support of the visa application was a sponsorship form completed by the review applicant. The Tribunal finds on the basis of that form that the visa applicant was sponsored by the review applicant at the time of application. A copy of the review applicant’s birth certificate was included in the visa application and confirms he is 70 years old.

36. As the visa applicant was sponsored at the time of application by the review applicant, who had turned 18, cl 309.213 is met.

37. On the evidence before the Tribunal the review applicant has not withdrawn his sponsorship. The sponsorship is thus in force. Further, he consented in the sponsorship form to disclosure of the kind referred to in cl 309.222(2).

38. Under r 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2). The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

39. The review applicant declared in the sponsorship form that he had previously sponsored two spouses - his first wife and his third wife. He provided details of his previous marriages and sponsorships in three documents included in the visa application: a document titled ‘Statement of Previous Relationships’, and two statutory declarations in which he also set out what he claimed were the compelling and compassionate reasons for an exemption of    r 1.20J. There are no records on the Department file confirming that the review applicant had two approved sponsorships that led to the grant of partner visas however the delegate relied on such sponsorships in her decision. At the hearing the review applicant acknowledged he had previously sponsored two spouses who were granted partner visas. The Tribunal thus finds on the evidence before it that the two approved sponsorships in a lifetime limitation in r 1.20J applies to the review applicant unless there are compelling circumstances affecting him.

40. The reasons the review applicant gave in his statutory declarations and at the hearing for waiving the limitation were:

    a.he was abandoned by his first wife because she had another man and she divorced him,

    b.he was abandoned by his third wife due to differences about her children and she divorced him,

    c.his medical conditions (diabetes, hypertension and lung problems) have required hospital treatment in Australia, he lives alone and needs the review applicant to look after him,

    d.he would suffer if the the sponsorship was not approved and he had to live in Vietnam because he was a veteran pensioner in Australia and he had many ties in Australia, and

    e.his relationship with the visa applicant was longstanding.

41. The reference to the review applicant being abandoned seems to be from the Explanatory Statement that accompanied the introduction of r 1.20J which states that compelling reasons affecting the sponsor could include the sponsor being abandoned by the previous spouse and there being children requiring care and support. As the Tribunal put to the review applicant at hearing it appeared that it was he who had abandoned his first wife having left her in Vietnam in 1978 and, despite arriving in Australia in 1980, not sponsoring her until almost a decade later. Furthermore, he commenced a relationship in Australia with a woman who was to become his second wife and with whom he had two children before he sponsored his first wife. In fact, the evidence indicates that the review applicant and his first wife were not in an ongoing spouse relationship when he sponsored her even though they were legally married. The evidence indicates that he sponsored his first wife so he could bring his remaining four children to Australia from Vietnam. With regard to the review applicant’s third wife, while she may have instigated the divorce he was not left with children that he had to care for and support. The Tribunal thus does not accept that the review applicant was abandoned by his first wife or his third wife and left with the children to care and support. The Tribunal finds that the end of the review applicant’s first and third marriages do not give rise to compelling reasons for the limitation to not be applied.

42. No medical evidence of the review applicant’s conditions have been presented. Based on the oral evidence given at hearing, his medical conditions seem minor and well managed by medication. Further, he is able to manage in Australia without the visa applicant’s assistance. Thus, the Tribunal finds that the assistance the review applicant claimed to require from the visa applicant has been exaggerated. Additionally, the Tribunal did not find the evidence the parties gave about not being able to access affordable medication in Vietnam and that the review applicant would not be able to access medical treatment there credible particularly given his relatively minor health conditions and information the Tribunal put to the review applicant about the medical system in Vietnam. The sources consulted by the Tribunal indicate Vietnam has a good health care especially in the cities.[3] On the evidence before it the Tribunal does not regard the review applicant’s medical conditions as amounting to compelling reasons for the limitation not to be applied.

    [3] For example, Vietnam's Health Care System - The Borgen Project, 28 March 2020,

43. The Tribunal notes that the review applicant has lived in Australia for 42 years, most of his adult life, all 8 of his children live here as do two of his siblings. However, the review applicant did not detail his family ties in his statutory declaration nor at the hearing when the Tribunal questioned him about his ties to Australia. It does not appear that the review applicant’s family ties are so close that he would be unwilling to leave Australia due to the ties. It appears that the visa applicant is the review applicant’s primary and significant source of emotional support. The review applicant has not provided evidence that he would not receive his pension if he left Australia. Information from the Department of Veteran Affairs indicates service pensions are generally payable overseas even where the stay is permanent.[4] The Tribunal thus finds that while the review applicant has ties to Australia they alone do not amount to compelling circumstances for the limitation not to be applied

    [4] Travelling or living overseas | Department of Veterans' Affairs (dva.gov.au), last updated 10 January 2020, 

1. The parties have now been in a spouse relationship for 6 years. The Tribunal thus regards the relationship to be a longstanding one. The Tribunal considers the relationship along with the review applicant’s long period of residence in Australia to amount to compelling circumstances affecting the sponsor such that the limitation in r 1.20J should not be applied.

2. Regulation 1.20KA sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. The review applicant indicated in the sponsorship form that he has not held a parent visa. There is no evidence to suggest otherwise. The Tribunal finds r 1.20KA does not apply to limit approval of the review applicant’s sponsorship.

3. Regulation 1.20KB imposes limits on sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and 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. According to an Australian Federal Police National Clearance Certificate submitted in support of the visa application, the only disclosable court outcome recorded in relation to the review applicant was the offence of ‘play unlawful game’ in 1988 for which he was fined $60. This is not an offence of a kind to which these limitations apply. Hence, the Tribunal finds that r 1.20KB and r 1.20KC do not apply to limit approval of the sponsorship.

4. In light of the above, the Tribunal approves the review applicant’s sponsorship and finds that the requirements of cl 309.222 are met.

   Conclusion

5. 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

6. 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 Foster
   Member