Ly (Migration)

[2017] AATA 101

Ly (Migration) [2017] AATA 101 (11 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Toan Ly

VISA APPLICANTS:  Ms Thi Hoa Lan Nguyen
Mr Gia Ngia Pham
Mr Duc Hiep Pham

CASE NUMBER:  1514936

DIBP REFERENCE(S):  OSF2015/070406

MEMBER:Mary Urquhart

DATE:11 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

Statement made on 11 January 2017 at 11:03am

CATCHWORDS

Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 – Sponsorship limitations – No compelling circumstances

LEGISLATION
Migration Act 1958,

s 65

Migration Regulations 1994

, Schedule 2, cl 300.213, cl 300.222, r 1.15A, r 1.20J

CASES

Babicci v MIMIA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 6 May 2015. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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. Relevantly to this matter the primary criteria include cl.300.213 and cl.300.222.

3. The delegate refused to grant the visas on 14 October 2015 on the basis that he/she found the first named visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations because the sponsorship limitations in r.1.20J(1)(b) of the regulations were engaged and there are no compelling reasons for waiving the sponsorship limitation.

4. The review applicant appeared before the Tribunal on 10 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ngoc Thi Nguyen and Ms Loan Thi Kim Tran. The Tribunal 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 by his registered migration agent.

6. Prior to the hearing a submission was received together with supporting documentation in the form of bank statements, receipts, photographs temporary residence and miscellaneous other documents (Tribunal folio 44-124 and 126-134). The Tribunal has considered the material submitted.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant meets the sponsorship requirements.

   Is the visa applicant properly sponsored?

9. Clause 300.213 requires that the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. The Tribunal has considered the application forms and the identity documents including passport extracts and oral evidence given by the review applicant. The Tribunal has viewed the review applicant’s grant of Australian citizenship which records his date of birth. The Tribunal is satisfied that the review applicant was born 28 April 1956 and had turned 18 at the time of application.

10. Based on the evidence submitted the Tribunal is satisfied the visa applicant was sponsored by the prospective spouse and the prospective spouse had turned 18 years of age. The Tribunal is satisfied that cl.300.213 is satisfied.

11. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force.

12. Regulation 1.20J of the Regulations sets a limit on the number of people that an Australian sponsor can successfully sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J a sponsor is limited to a total, in a lifetime of two approved sponsorships that lead to the grant of a visa (or entry permit). 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 five 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). It also limits the ability of persons who have been sponsored themselves to then sponsor another spouse or de facto partner.

13. However it is possible to waive the sponsorship limitation under r.1.20J(2).

14. Regulation 1.20J(2) provides that the sponsorship limitations may be waived if the Minister is satisfied that there are 'compelling circumstances affecting the sponsor'. Unlike other instances where compelling circumstances must be considered in the Regulations, in the context of r.1.20J those circumstances must affect the sponsor. The legislative intention of this provision can be found in the Explanatory Statement which indicates that the Minister can approve sponsorships or nominations if 'compelling circumstances' exist.  These include:

    ·     the previous spouse, de facto partner or interdependent partner has died;

    ·     the previous spouse, de facto partner or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support;

    ·     the new relationship is long-standing;  or

    ·     there are dependent children of the new relationship.

15. Departmental guidelines substantially reflect the policy intent contained in the Explanatory Statement and emphasise that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions. Decision makers should be mindful of this when assessing whether to exercise the discretion to waive the limitation.

16. Departmental guidelines also emphasise that every aspect of the sponsor's circumstances could be relevant to the existence of compelling circumstances. While there is no definitive list, some general aspects that may be particularly important are:

    ·The nature of the hardship and/or detriment that would be suffered (by the sponsor) if the sponsorship were not approved. For instance greater weight should be given to hardship or detriment stemming from breaches of a person's human rights than to that stemming from circumstances that are normally encountered in daily life; and

    ·The extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved. For example, greater weight would be given to hardship suffered by the Australian party if they had very close ties to Australia with fewer ties in the visa applicant's home country.

17. In exercising the discretion, the Tribunal  has considered Babicci v MIMIA, in which Moore J stated:

    .... The Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way. It is a way that must be irresistible to the Tribunal. Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship.

18. On appeal, the Full Federal Court said in Babicci v MIMIA,  that

    'On any view of the meaning of [the] word [compelling,] the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition… should be waived'.

19. As noted above, cl.309.213 provides that at the time of application that the applicant be sponsored by their spouse.

20. Clause 309.222 provides that at the time of decision the sponsorship must be approved and still in force.

21. The expression “compelling circumstances” is not defined in legislation.

22. On 23 September 2015 the department invited the sponsor to provide a submission regarding compelling circumstances. He responded on 13 October 2015 providing information. He claimed he had been abandoned by both his previous spouses; he claimed to have a child who was dependent on each of them and him at the time and he claimed that he would suffer hardship due to his plan to move to Vietnam permanently to live with the applicant.

23. Prior to the hearing the Tribunal received a submission which raised further matters for consideration.

24. It was submitted the sponsor  is 60 years old and has lived in Australia for some 36 years. He has “no near relatives excepting two sisters and his son” now aged 29. It was submitted that he has no near relatives in Vietnam. It was submitted that if he was “compelled’ to go and live in Vietnam he would have trouble getting work would be unemployable because of his age and therefore unable to support his wife. Whilst he could withdraw his superannuation, it was submitted it would “not last forever”. He would be dependent on the applicant who is a teacher and not highly paid.  It was submitted he would be giving up full time employment which would amount to $300,000 over the next 6 years that this would affect his superannuation, may impact on any old age pension he might be entitles to; he would lose Medicare health insurance and other financial and other benefits available to pensioners. His standard of living in retirement would be detrimentally affected. It was submitted these matters amount to hardship and detriment.

25. It was further submitted that the relationship between sponsor and applicant is genuine and continuing and satisfies 1.15A criteria.

26. In this application the evidence is that two previous people (Ms Hai fan Guan and Ms Tu Mai Ta) have been granted relevant permission as the spouse, de facto or prospective spouse of the sponsor on the basis of a sponsorship nomination by him.  Based on the evidence before it the Tribunal is satisfied that that the review applicant has sponsored two previous partners and that as a result of the sponsorships the previous visa applicants were granted visas.

    Are there compelling circumstances for waiving the sponsorship limitation requirement?

27. The review applicant is the sponsor in this matter, and the Tribunal is required to consider whether there are compelling circumstances affecting him that satisfy the Tribunal the sponsorship limitations do not apply.

28. At the hearing the Tribunal invited the applicant to expand on the submissions previously provided and to add any further matters for consideration of compelling reasons to waive the limitation requirements.

29. The review applicant gave evidence in relation to his first and second marriages. His first marriage lasted some 6 years and he and his wife had one child, a boy, born in 1989. His second marriage lasted some 7 years however, the evidence is that the review applicant separated from his second wife after 2-3 years but did not divorce for some years following separation. The evidence is that the review applicant raised his.

30. The Tribunal has considered the nature and circumstances of the review applicant’s first two marriages. The Tribunal is not satisfied that there is any compelling matter in the history of his relationships which provides compelling circumstances for waiving the sponsorship limitation requirements.

31. The review applicant in his evidence stated he was introduced to the visa applicant and had spoken to her twice on the telephone in September 2014. In October 2014 he flew to Vietnam and met her face to face at the house of a friend. During his visit the review applicant spent some 10 days visiting with the visa applicant; he said he travelled by bus to see her, returning the same day on about 3 occasions and she came to “Saigon” to see him.  The parties next saw each other when the applicant again visited Vietnam in February 2015. They held an engagement ceremony he said. The review applicant agreed that altogether he had spent at most some 6 weeks with the visa applicant over 3 trips in a two year period.

32. The Tribunal has carefully considered the evidence in regard to the rapid development of the relationship. It has considered the amount of time the parties have spent with each other over the two year period since they first spoke on the telephone. Whilst the Tribunal accepts that for some people “love at first sight” may occur, the Tribunal is required to consider all the circumstances. On the basis of the evidence regarding inception and development of the relationship, the Tribunal is unable to conclude that there would be considerable detriment flowing to the applicant if the limitation is not waived.

33. The review applicant stated he was very lonely. This evidence was corroborated by two witnesses who are friends of long standing who stated that the review applicant is getting older. They spoke of their joy that he had found a new partner. The Tribunal notes from the evidence that the review applicant lives with one of his two sisters and is in regular contact with his son, who, he said has just married. Whilst the Tribunal accepts the applicant may be growing older at 61 and may feel lonely, it does not accept that the claims and evidence regarding his loneliness is sufficiently forceful for it to be a compelling circumstance for the waiver of the limitation.  The Tribunal has also considered the review applicant's claim he has now lived in Australia for 36 years, and his social ties here. The Tribunal is not satisfied that the duration of the review applicant's time in Australia, and that he has 2 sisters and a son in Australia are compelling circumstances for waiving the sponsorship limitation requirements.

34. The review applicant explained his financial circumstances and gave evidence regarding his the anticipated impact on his finances if the visa is not granted to the visa applicant. The Tribunal is satisfied the review applicant has been in his current employment for at least 6 years (in accordance with documentary evidence). The Tribunal accepts the review applicant does not wish to lose his current employment, and accepts the review applicant believes he is unlikely to obtain employment or equivalent employment in Vietnam due to his age. As well the Tribunal has considered the submission which projects other financial losses in regard to future superannuation and possible aged pension and other benefits.

35. The Tribunal notes the review applicant fears reliance on the visa applicant who he says is a low paid teacher. However, he agreed she was able to support herself and her children by earning extra money in a second part time job. The Tribunal has carefully considered the review applicant’s financial circumstances. Whilst he may have a preference to live in Australia the Tribunal finds that the anticipated losses he claims, would result from the review applicant's choice to leave Australia. The Tribunal is not satisfied that his anticipated losses and future financial circumstances amount to compelling circumstances for waiving the sponsorship limitation requirement in all the circumstances.

36. The Tribunal has considered all the claims, both individually and collectively, and is not satisfied that there are compelling reasons for waiving the sponsorship limitation requirements in r.1.20J. The Tribunal is not satisfied that there are compelling circumstances affecting the sponsor, and therefore cannot approve the sponsorship of the applicant for the visa.

37. Accordingly the Tribunal did not proceed to consider whether the relationship between sponsor and applicant is genuine and continuing in accordance with 1.15A criteria.

38. The Tribunal cannot approve the sponsorship for the reasons given above. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO).

39. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

40. The Tribunal affirms the decision not to grant the visa applicants Prospective Marriage (Temporary) (Class TO) visas.

    Mary Urquhart
    Member