Nguyen (Migration)

[2022] AATA 1923

Nguyen (Migration) [2022] AATA 1923 (25 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr The Tai Nguyen

VISA APPLICANT:  Mrs Ngoc Xuan Si

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  1931702

DIBP REFERENCE(S):  BCC2018/3393213

MEMBER:Donna Petrovich

DATE:25 January 2022

PLACE OF DECISION:  Melbourne

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.309.213 of Schedule 2 to the Regulations

·cl.309.222 of Schedule 2 to the Regulations

Statement made on 25 January 2022 at 11:00am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship requirements – sponsorship limitation – previously sponsored two other partners – divorce due to compatibility issues – infidelity – waiver provision – compassionate and compelling circumstances – sponsor’s declining health – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.20J, 1.20KA, 1.20KC; Schedule 2, cls 309.213, 309.222

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 10 October 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 7 September 2018 based on her relationship with the 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 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 did not satisfy cl.309.222 or cl. 309.213.  Cl. 309.222 requires that at the time of decision, the sponsorship under clause 309.213 has been approved and is still in force. 

4. As the review applicant/sponsor had previously sponsored two (2) other partners to Australia, the delegate found that he was subject to the sponsorship limitation, which limits the number of partners that may be sponsored to Australia to two (2) as per clause 1.20J(1)(a).

5. The delegate decided that compelling circumstances did not affect the sponsor in this case, to allow for the sponsorship approval by the Department, as per the waiver provision contained in cl. 1.20J(2).

   Background

6. The review applicant/sponsor is a 57 year old man who is an Australian citizen, originally from Vietnam.  He is currently not working and receives Centrelink payments.  Previously he worked at the same company for 20 years, before being made redundant due to ill health. 

7. The visa applicant is a 50 year old woman from Vietnam who has worked for a company as a tailor making clothing, and since the Covid 19 pandemic she has worked from home. She lives in Vietnam with her father, brother and sister-in-law and their child.

8. The review applicant/sponsor has been a sponsor on two previous occasions.  In the first instance, the marriage resulted in divorce due to compatibility issues between the couple.  The second relationship was short lived as a result of infidelity by the sponsored applicant.  This second relationship appears disingenuous on the part of the sponsored applicant, who stayed with the sponsor for a short while before returning to Vietnam after she was unfaithful to her husband.

9. In the present matter, the review applicant/sponsor and visa applicant met in a market in Vietnam in 2015 while taking a tour.  They started talking and they exchanged telephone numbers.  Several days later the review applicant/sponsor contacted the visa applicant and asked her out.  She was working at that time and they did not go out on that occasion.  The review applicant/sponsor returned to Australia. They stayed in contact by telephone after the review applicant/sponsor determined that the visa applicant was a single woman.  Talking by telephone and on Viber for over a year, they maintained a close friendship.

10. The review applicant/sponsor returned to Vietnam and they started their relationship in the middle of November 2016.  They stayed together for two weeks on this occasion, as the visa applicant had limited holidays.

11. They held an engagement ceremony with 330 guests which was paid for by the sponsor/review applicant, and afterwards he lived with the visa applicant and her family for one month.        

12. The review applicant/sponsor appeared before the Tribunal on 16 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Si Ngoc Xuan (the visa applicant) and Ms Dho appeared as a witness.

13. The review applicant/sponsor was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the review applicant/sponsor is able to meet the requirements for compassionate and compelling circumstance, and whether the Tribunal is satisfied that he has been in a longstanding relationship with the visa applicant.

16. The visa applicant and review applicant/sponsor first commenced their relationship in 2016 and have maintained their relationship for over five (5) years.  The review applicant/sponsor is currently suffering from chronic asthma and a heart condition.  His health has deteriorated, and he has retired from work because of his health conditions.  He requires the companionship of his wife, and additional care and assistance in the home because of his poor health.  His wife would like to provide this care and assistance for him in his retirement.  Whilst the review applicant/sponsor has sponsored two (2) previous partners, these relationships have been unsuccessful.  He lives alone and has struggled to manage on his own with household duties because of his poor health.

    Are the sponsorship requirements met?

17. Clause 309.213 requires that the visa applicant is sponsored by the review applicant/sponsor, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg.1.03 of the Regulations).

18. At the time of decision, this sponsorship must have been approved and still be in force.  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.

19. Approval of the sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship.  Regulation 1.20KA sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa.

20. There are further limits imposed by reg.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010.  Sponsor limitations are also contained in reg 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.

21. The visa applicant is currently 50 years old and has provided proof of her identity and age to the Tribunal.  She is currently living in Vietnam with her extended family.  But she has expressed her desire to come to Australia to be with her partner who she loves and wishes to care for.

22. The review applicant/sponsor has declining health, and now needs some assistance from his partner as he has chronic asthma and a heart condition.

23. The review applicant/sponsor has worked and paid taxes in Australia, but he has been unlucky in his previous relationships.  He has now found happiness in this relationship which has been continuous since 2016.

24. The review applicant/sponsor has previously sponsored two visa applicants.  He sponsored these prior partners in good faith based on a genuine belief that these were longstanding and genuine relationships. 

25. His first marriage ended in the breakdown of the relationship because of incompatibility and resulted in divorce.  The second relationship was of a short duration and he was taken advantage of by providing the sponsorship.  This relationship ended with the sponsored visa applicant flaunting another relationship before the review applicant/sponsor.  Irreconcilable differences between the couple meant that the sponsored visa applicant returned to Vietnam.  This second sponsorship did not result in the sponsored partner staying in Australia nor any detriment to the Australian community.  This is because she returned to Vietnam after leaving the sponsor.

26. The relationship with the current visa applicant has been a longstanding one.  It was established in 2016 and they have become engaged before family and friends.  This is now the accepted form of betrothal in Vietnam, especially when couples are living in separate countries. They have maintained this contact and relationship for over five (5) years.

27. The review applicant/sponsor and visa applicant maintain contact daily, speaking via telephone or Viber.  They have seen each other as often as has been possible given the constraints of limited income, work commitments and the added complications of travel during Covid 19.

28. The Tribunal heard that they lived together for ten (10) months in Vietnam when the review applicant/sponsor was sent there for training.  During this time the review applicant/sponsor paid for groceries, going out together and any trips and tours that they undertook together.  The review applicant/sponsor continues to send money to assist the visa applicant with her living expenses.  The evidence provided by the witness and the review applicant/sponsor at the Tribunal hearing was genuine and plausible.  The Tribunal accepts that the relationship is genuine and longstanding, as they have remained in a continuous relationship for over five (5) years.  The Tribunal considers this to be a significant amount of time and therefore places significant weight in favour of the application in this regard.

29. On the evidence before the Tribunal, the requirements of cl.309.213 and cl.309.222 are met.

    Compassionate and compelling circumstances

30. The Tribunal has considered the current circumstances of the review applicant/sponsor, living alone in Australia (his home for 20 years) without the companionship of his partner of over five (5) years.  The Tribunal heard that this has occurred at a time when his health is failing, and he now requires assistance and companionship of his partner. Whilst the review applicant/sponsor said at the hearing that if necessary, he would return to his partner in Vietnam, he acknowledged that this would mean that he would have to relinquish his access to health benefits at a time when he needs this assistance the most. In considering this case, the Tribunal finds that there are compassionate and compelling reasons that the visa in this case be remitted for further consideration.

31. Given the findings above, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 309 visa.

    DECISION

32. 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.309.213 of Schedule 2 to the Regulations

    ·cl.309.222 Schedule 2 to the Regulations

    Donna Petrovich
    Member