Ly (Migration)

[2023] AATA 4724

Ly (Migration) [2023] AATA 4724 (29 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ho Ly

VISA APPLICANT:  Ms Zhimin Wu

REPRESENTATIVE:  Mr Neil Donkin (MARN: 9803038)

CASE NUMBER:  1921973

DIBP REFERENCE(S):  BCC2017/4539557

MEMBER:Naomi Schmitz

DATE:29 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 29 November 2023 at 2:12pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – non-appearance before the Tribunal – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – WeChat records – engaging in dating activities – sponsor concealing his whereabouts to the visa applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360, 379A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

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 Home Affairs on 3 June 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 30 November 2017 on the basis of her relationship with her sponsor, also referred to in this decision record as 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 was not the spouse of the sponsor as defined in s 5F of the Act and therefore did not satisfy cl 309.211 and cl 309.221 of Schedule 2 of the Regulations.

4. On 8 August 2019, the review applicant applied to the Tribunal for a review of the refusal decision. The review applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 28 March 2023, the Tribunal sent a letter to the review applicant requesting information regarding the circumstances of the parties claimed relationship in accordance with reg 1.09A or reg 1.15A including the financial and social aspects of the parties’ relationship, the nature of the parties’ household, and the nature of the parties’ commitment to each other. The Tribunal requested that this information be provided by 11 April 2023. The review applicant did not respond.

6. On 6 November 2023, the Tribunal invited the review applicant under s 360(1) of the Act to appear in-person at a Tribunal hearing commencing at 9:30 am (VIC time) on 27 November 2023 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to do this because it had considered the information it had and was unable to make a decision favourable to the review applicant. The invitation advised the review applicant to provide all documents intended to be relied on to establish that the relevant criteria was met by 20 November 2023.[1] The letter further advised that if the review applicant did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the review applicant to appear before it. The review applicant was represented in relation to the review.

   [1] Migration and Refugee Division Practice Direction dated 22 February 2023.

7. On 17 November 2023, the representative telephoned the Tribunal and advised that he had been unable to make contact with the review applicant despite various attempts. He confirmed he would continue to try make contact with the review applicant.[2]

   [2] Tribunal Case Note 3.

8. On 22 November 2023 at 10:50 am, the representative emailed the Tribunal and advised:

   …I have had no contact, nor received any instruction from the review applicant, following the lodgement of his application with the Tribunal. On receipt of the Tribunal’s letter several unsuccessful attempts were made to contact him. He has not replied to any overture and, I regret, I am unable to help the Tribunal further.

9. On 22 November 2023, the Tribunal wrote to the representative and thanked him for his efforts to contact the review applicant and keeping the Tribunal informed. The Tribunal confirmed it did not require the representative’s attendance at hearing.

10. The review applicant and visa applicant did not appear at hearing. The Tribunal did not receive any correspondence from the review applicant regarding his non-attendance or that of the visa applicant through to the date of this decision.

11. The Tribunal notes that two SMS hearing reminders were sent to the review applicant’s mobile phone, including on 20 November 2023 and 24 November 2023, one week in advance of the hearing and the second SMS on the Friday immediately before the hearing which was on a Monday.[3] For each SMS hearing reminder, the Tribunal did not receive any notification of delivery failure. Having reviewed the Tribunal file and the chronology of communications, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), using the contact information provided by the review applicant and that reasonable steps were taken to ensure that the review applicant was aware of the hearing. This included various communications with the representative who was also unsuccessful in contacting the review applicant.

    [3] Tribunal Case Note 4 and 5.

12. The Tribunal further notes that the review applicant has not filed any updated information since he filed his application for review on 8 August 2019, over four years and three months ago, which the Tribunal considers to be a significant lapse of time. The Tribunal considers every reasonable opportunity was granted to the review applicant to attend the hearing; however, the review applicant appears to have disengaged with the Tribunal by his failure to respond.

13. The Tribunal does not consider it is required to make the review applicant’s case for him. The Tribunal has also had regard to the Tribunal’s objective of providing an expeditious mechanism of review.[4] In these circumstances the Tribunal has proceeded to decide the review application on the evidence available to the Tribunal.[5]

    [4] s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).

    [5] s 363B [Part 5] of the Migration Act 1958 (Cth).

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the visa applicant is the spouse as defined in s 5F of the Act of the sponsor.

    Whether the parties are in a spouse or de facto relationship

16. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian citizen.

17. ‘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 sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Background

18. The sponsor is a 65-year-old Australian citizen through a grant of visa, who was born in Cambodia. Information contained in the visa application discloses that he has had two prior marriages, the first between 24 December 1983 until 20 January 2007. There are two children from this relationship, namely two daughters currently aged 35 and 38 years respectively. The sponsor’s second marriage was between 30 September 2010 and 28 September 2014. There are no children from this marriage.

19. The visa applicant is currently aged 53 years and is a citizen of China. The visa applicant declared one previous marriage from 22 November 1991 until 1 January 1995. There is one child, namely a son from this relationship currently aged 30 years. Information provided by the visa applicant claims that the visa applicant underwent in vitro fertilisation which produced a daughter, currently aged 13 years. The father is unknown.[6]

    [6] Department file: BCC2017/4539557.

20. In March 2014, the visa applicant was granted a Visitor (Subclass 600) visa on which she subsequently travelled to Australia five times between 14 April 2014 and 1 July 2018. The visa applicant last departed Australia on 6 July 2018.[7]

    [7] Delegate’s decision record.

21. The visa application and sponsor, hereafter referred to as the parties, claimed to have made contact when the sponsor saw the visa applicant’s ‘dating advertisement’ and contacted her. They became QQ friends[8] on 13 May 2014. The parties subsequently met in-person for the first time on 20 July 2014 in Wuhan, China, when the sponsor travelled to China.

    [8] QQ is an instant messaging software service widely used in China for communicating.

22. The parties declared that the visa applicant became the sponsor’s girlfriend on 25 July 2014. The visa applicant subsequently travelled to Australia on 7 August 2014 and the parties claim that they commenced living together. The parties decided to get married but were initially delayed due to the sponsor not being divorced from his second wife. The sponsor subsequently divorced in September 2014 and the parties married on 5 October 2014. The visa applicant last visited Australia in July 2018 and the sponsor last visited China in March 2019. The parties claim that they usually go to other countries where they meet up.

    Are the parties validly married?

23. 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). In support both a decorative and a certified marriage certificate from the Births Deaths and Marriages Registry were provided to the Tribunal confirming that the parties married on 5 October 2014.[9]

    [9] Ibid. Department file.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

24. In assessing the financial aspects of the visa applicant’s relationship with the sponsor, the Tribunal has considered the following points: the joint ownership of assets, any joint liabilities, the extent to which the applicant and sponsor share their financial resources, any legal obligations each has to the other and any combined future financial commitments or plans.

25. There is no evidence to support that the parties have joint ownership of any real estate, major assets, joint bank account(s), liabilities or major household items. The parties submitted two National Australia Bank (NAB) money transfer receipts dated 31 August 2018 and 5 April 2019, showing a transfer of AUD30,000 and AUD3,500 from the sponsor to the visa applicant. Each of the receipts stated that the purpose was to purchase a car.

26. Whilst the Tribunal acknowledges that two NAB money transfer receipts were provided, limited weight is placed on them. This is due to the explanations provided by the visa applicant during her Departmental interview which the Tribunal does not regard as credible and incongruent with the parties’ claims of being in a genuine spousal relationship and having shared financial responsibility. When asked about the quantum of funds transferred, the currency and the purpose of the fund transfers, the visa applicant stated that the sponsor had transferred RMB30,000 or RMB40,000, equivalent to AUD6,362.32 and AUD8,483.10. The Tribunal regards this as substantially less than the funds transferred. In addition, the visa applicant could not explain why the sponsor had transferred the funds to her.

27. The Tribunal has also had regard to the parties’ responses at Departmental interview regarding their respective financial situations, including their employment and income. Whilst the visa applicant had some knowledge about the sponsor’s employment and income, the sponsor did not have any knowledge of the visa applicant’s employment or income.

28. In addition, the sponsor did not have knowledge of how much the visa application or associated lawyer fees were in respect of this visa application. He stated all fees were paid by the visa applicant, whilst the visa applicant stated that all fees were paid by the sponsor. When the visa applicant was asked to comment on this inconsistency, she said that the sponsor should know the amount of the visa application and the lawyer fees.

29. The parties also gave inconsistent information regarding the sponsor’s living arrangements in Australia. The visa applicant stated that the sponsor owned a house that he has transferred to his daughter. The sponsor gave conflicting information.

30. The Tribunal has carefully considered the parties’ claims which the Tribunal regards as highly inconsistent and irreconcilable. The Tribunal considers that such financial information is basic information that genuine spouses should be able to provide without difficulty. This is particularly so, given some of the financial information related to this visa application, which is the subject of these proceedings. These inconsistencies indicate that the claimed relationship has not been presented in a truthful or accurate manner and overall raises significant doubts that the relationship is genuine. The Tribunal’s concerns regarding the financial aspects of the relationship are further heightened by the fact that the visa applicant was unable to say why and how much money was transferred to her. Accordingly, the Tribunal is not satisfied on the evidence before it that either at the time of application and at the time of this decision, that the visa applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others and are genuine spouses.

    Nature of the parties’ household

31. In assessing the nature of the household, the Tribunal has considered the parties’ domestic living arrangements, their understanding of each other’s domestic living arrangements, daily routine as well as whether the couple plan to live together permanently in a spousal relationship.

32. As noted in [21] above, the parties claim that they first met in-person in Wuhan, China, in July 2014. Departmental records disclose that before this time, the visa applicant had travelled once to Australia and after July 2014 the visa applicant travelled to Australia four times.

33. At interview, the visa applicant stated that she resided at the sponsor’s property during her first visit to Australia in 2014. The Tribunal notes that no evidence was provided to support that the parties shared a household together such as joint utility bills or mail correspondence addressed to the parties’ same residential address and accordingly limited weight is placed on these assertions.

34. The visa applicant further stated that during her three subsequent visits to Australia that she and the sponsor stayed at various hotels. This was due to the sponsor transferring his house to his daughter and leasing the house to tenants. The Tribunal has carefully perused the Department file, but notes there is no evidence to support that the parties stayed at any hotels in Australia such as hotel bookings or receipts in the parties’ joint names and accordingly no weight is placed on these assertions.

35. As noted in the delegate’s decision, the visa applicant could not explain why the sponsor still managed the lease of the property when he transferred the property to his daughter. The sponsor provided conflicting information regarding his residential arrangements and house ownership. These inconsistencies raise serious doubts as to the nature of the parties’ household, as this is information expected to be within the knowledge of genuine spouses, and accordingly the Tribunal places adverse weight in this regard.

36. The visa applicant stated that during her three stays in Australia when the sponsor was at work, she had stayed once at her ‘friend’ Zhou Zin’s house for almost three months. She admitted that she worked for Zhou Xin, taking care of Zhou Xin’s minor child. She stated that Zhou Xin paid her AUD2,700 for her work. The visa applicant stated that she could not recall during which trip she had worked for Zhou Xin.

37. As noted in the delegate’s decision record, the visa applicant’s longest stay in Australia was between 8 August 2014 and 31 October 2014 (two months and 24 days) which the visa applicant claimed was her first visit to see the sponsor. The Tribunal has carefully considered the visa applicant’s claims, in particular, what activities she undertook and who she associated with during her visit. Given the paucity of evidence regarding the nature of the parties joint household, in conjunction with the visa applicant’s claims that she worked for Zhou Xin and lived with Zhou Xin, including being paid almost AUD3,000, the Tribunal has serious concerns that the visa applicant worked for Zhou Xin and lived with Zhou Xin during her claimed first trip to visit the sponsor in 2014, rather than reside with the sponsor as his spouse at his residential address as claimed.

38. The Tribunal further notes that although the visa applicant stated that she only worked for Zhou Xin during one of her stays in Australia, the sponsor provided conflicting information, namely that the visa applicant had worked for Zhou Xin and lived at Zhou Xin’s house during two stays in Australia. He said he would sometimes visit the visa applicant at Zhou Xin’s home. In contrast, the visa applicant claimed that the sponsor would visit her at Zhou Xin’s house every seven to 15 days. The sponsor also gave inconsistent information regarding the visa applicant’s stay at Zhou Xin’s home including its purpose. The Tribunal has considered the parties’ claims which the Tribunal regards as highly inconsistent and irreconcilable. Whilst couples may recall some aspects of their relationship differently, the Tribunal finds it highly implausible that the parties would have such different recollections of where they stayed, this is particularly given 2014 was the first time the visa applicant visited Australia for the purpose of visiting the sponsor. These inconsistencies raise serious doubts as to the genuineness of the relationship and suggest that the parties’ relationship is not genuine and that the parties have not resided together as claimed.

39. The parties stated that they resided together at the visa applicant’s property in China during the sponsor’s visits to China. Whilst the sponsor claimed that he had travelled to China a number of times and that he had lived in the visa applicant’s property during each stay, he could not recall where the property was located, including the street/road or in which district the property was located. In addition, there is no evidence to support the sponsor’s stay at the visa applicant’s property in China during each visit. The Tribunal consequently has serious concerns regarding the truthfulness of the parties’ claims as this is information expected to be within the knowledge of the sponsor. Whilst the Tribunal acknowledges that two hotel receipts in the parties’ joint names were provided, limited weight is placed on them given the other inconsistent information.

1. The Tribunal has considered all of the household evidence. Inconsistent information was provided by the parties regarding their cohabitation in Australia. The Tribunal’s concerns are further heightened due to the sponsor’s lack of knowledge regarding where he lived in China, including at the visa applicant’s home. Overall, the Tribunal is not satisfied that the parties’ cohabited during the visa applicant and sponsor’s claimed visits to each other, and the parties’ inconsistent claims raises serious doubts regarding the reliability and credibility of the parties and the information presented in this visa application. No corroborative evidence was submitted to substantiate the nature of the parties’ household. Given the paucity of the evidence at the time of application and at the time of review, the Tribunal is not satisfied that the nature of the household supports an existence of a genuine and continuing relationship between the visa applicant and sponsor.

   Social aspects of the relationship

2. The Tribunal has considered the social interactions of the parties, and the way they represent their relationship to others, and the level of recognition of the relationship by family and friends.

3. Two witness statements were provided in support of the visa application. The Tribunal has carefully considered these statements which the Tribunal regards of low probative value. The statements contained generic and limited relationship information.

4. Photographic evidence was provided in support which show the parties depicted on a number of occasions including between 2014 to 2017. In addition, boarding passes showing the parties’ trip with the visa applicant’s son to Ningbo and train tickets with the visa applicant’s family members and the visa applicant’s son in August 2015. Whilst this evidence indicates that the parties have undertaken some social activities together, the Tribunal does not regard it as sufficient to demonstrate the social aspects for the parties’ relationship. Further, given no updated evidence has been provided and given the lack of detail regarding how the parties’ relationship has developed since first meeting, the Tribunal is not convinced that the parties’ relationship is recognised by the parties’ respective families and friends.

5. Given the time that has elapsed since the time of visa application and the application for review, the Tribunal would have expected that the parties could provide further information about how others in their familial and social circles viewed their relationship and would have expected that evidence could be filed to support the parties’ claims.

6. Considering all the evidence cumulatively, the Tribunal is not satisfied that the relationship has any level of social recognition and acceptance.

   The nature of the persons’ commitment to each other

7. In assessing the nature of the parties’ commitment to one another, the Tribunal has considered the circumstances of the parties’ meeting, the development of their relationship, the degree of companionship and emotional support that they provide to one another, their knowledge of each other’s personal circumstances and any evidence of the long-term intentions of the relationship including future planning.

8. The parties’ claim that they communicate by a translation app. As noted in [21] the parties met for the first time on 20 July 2014 when the sponsor travelled to China. According to the delegate’s decision, Departmental records indicate that after 20 July 2014 that the visa applicant visited Australia four times. During the visa applicant’s visits to Australia the sponsor was outside of Australia during the following dates:

   a.       27 September 2014 until 1 October 2014; and

   b.       5 August 2017 until 12 August 2017.

9. During a Departmental interview the visa applicant was asked why the sponsor had been outside Australia during her stays in Australia. The visa applicant initially claimed that the sponsor had never been offshore. When the inconsistent information referred to in [47] was put to her she recanted her claims and claimed that sometimes the sponsor visits Macau for gambling. She later claimed that she could not call when and for how long the sponsor had visited Macau.

10. The sponsor on the other hand stated that he had never visited Macau but that he had been to a casino in Melbourne. He also stated that he had never been outside of Australia when the visa applicant was in Australia. The sponsor was advised that his claims were inconsistent with Departmental records referred to in [47] above. The sponsor then stated that he had travelled once to Macau with the visa applicant. The sponsor was informed that his claims were inconsistent with the visa applicant’s claims and with Departmental records. The sponsor did not provide convincing detail as to why he travelled to China and travelled by himself several times without the visa applicant.

11. The visa applicant stated that the sponsor travels from Australia alone because ‘maybe he doesn’t like socialising’. She said although the sponsor had toured with her family members he did not like travelling together with them and he felt annoyed.

12. The parties WeChat records disclose that on 25 September 2018, that whilst the sponsor was in China travelling by himself the visa applicant texted the sponsor

    What happened? The call could not be connected... The call can get through now. Why don't you answer?’

13. On 26 September 2018 the visa applicant texted:

    Husband why do you disappear? Have I done anything wrong? Are you dating abroad again and not convenient (to talk to me)?.

14. The sponsor in reply texted:

    My phone dropped from high above and got some problem. I could not send out messages. I am safe will stop I have just started my job for 3 months, how can I have any holidays? I am busy recently.

15. The Tribunal has carefully reviewed the WeChat communication records which the Tribunal regards shows a lack of commitment between the parties. In these communications, the visa applicant has concerns regarding the sponsor’s fidelity to her and has suspicions that the sponsor is engaging in dating abroad. The communications also show that she was unaware of the sponsor’s whereabouts which the Tribunal considers shows a lack of commitment and is inconsistent with a genuine commitment as the Tribunal would expect genuine spouses to keep each other closely informed of their whereabouts.

16. The Tribunal further notes that at Departmental interview, the visa applicant could not explain why she thought the sponsor had departed Australia. Further, at interview the sponsor could not provide any credible explanation as to why he had not told the visa applicant about his trips to China or why he had pretended that he was in Australia to the visa applicant when he in fact was in China.

17. The parties married in October 2014 but did not apply for the visa until November 2017, that is approximately three years later. At interview, the parties were asked why they had applied three years later but provided inconsistent responses. The Tribunal places adverse weight in this regard.

18. As noted above, the parties provided multiple contrary statements which raises concerns regarding the parties’ commitment to one another. The Tribunal’s concerns are further elevated due to the WeChat records which disclose that the visa applicant has serious concerns that the sponsor is engaging in dating activities and the sponsor concealing his whereabouts to the visa applicant. Overall, the evidence does not support that the parties’ have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the parties are in a genuine and continuing spousal relationship.

19. On the basis of the above the Tribunal is not 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.

    Conclusion

20. Therefore, the visa applicant does not meet cl 309.211 and cl 309.221.

21. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Naomi Schmitz
    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).