NGUYEN (Migration) - [2021] AATA 4035

NGUYEN (Migration) [2021] AATA 4035 (20 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs THI BAO NGOC NGUYEN
CASE NUMBER:  1829246
HOME AFFAIRS REFERENCE(S): 1515603458 BCC2017/2925251
MEMBER:Meena Sripathy
DATE:20 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211 of Schedule 2 to the Regulations
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 20 October 2021 at 10:15am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – compelling circumstances affecting the sponsor – sponsorship of two previous partners – child of the relationship – long standing relationship – joint travel – sponsor convicted of assault – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.20; Schedule 2, cls 820.211, 820.221
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 August 2017 on the basis of her relationship with her sponsor, Andrew Nguyen. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(c) because the sponsor was unable to meet the sponsorship requirements under r.1.20J as a result of two previous sponsorships and the delegate not being satisfied there were compelling circumstances affecting the sponsor to approve the sponsorship. The delegate concluded therefore that cl.820.211(2)(c) was not met (although the Tribunal notes in fact the relevant criteria requiring sponsorship approval is time of decision criteria cl.820.221(4)).
The applicant applied for review of the decision to the Tribunal on 6 October 2018.
The Tribunal wrote to the applicant on 30 September 2021 informing her that the sponsor is affected by the limitation on approval of sponsorship requirements in r.1.20J and inviting comment or response to that and to provide information, submissions and supporting evidence of compelling reasons to approve the sponsorship notwithstanding this.
The applicant responded with a submission and supporting documents dated 13 October 2021.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION…

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.

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Details

AGLC: NGUYEN (Migration) [2021] AATA 4035
Case: [2021] AATA 4035
Decision Date: 20 October 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820 (Partner), made by a 34-year-old Vietnamese national. The applicant was sponsored by Andrew Nguyen, an Australian citizen, who had previously sponsored two former partners for partner visas. The core of the dispute concerned the sponsorship limitation under regulation 1.20J, which requires compelling circumstances to justify approving a sponsorship when the sponsor has previously sponsored two individuals.

The legal issues before the Tribunal were whether the sponsor's previous sponsorships, coupled with other factors, prevented the grant of the visa, and if so, whether there were compelling circumstances affecting the sponsor that would justify an exception to the sponsorship limitation. The Tribunal was required to assess the evidence presented by both the applicant and the sponsor to determine if the relationship was genuine and continuing, and if the circumstances surrounding the sponsorship met the threshold for compelling reasons.

The Tribunal's reasoning focused on the evidence demonstrating a long-standing and genuine relationship between the applicant and the sponsor, which commenced in December 2015 and resulted in their marriage in August 2017. Crucially, the Tribunal noted the birth of a child to the couple in November 2018, and the shared responsibility for this child, as significant factors. The Tribunal found that the applicant met the criteria under cl 820.211 and cl 820.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application to the Department for reconsideration of the remaining criteria, with a direction that the applicant had met the specified criteria relating to the relationship and sponsorship.

Orders

Orders of the court

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Background

Background to the litigation

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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 EVIDENCEEvidence before the Department The applicant is a 34 year old woman of Vietnamese nationality. She has parents and a sister in Vietnam. She is sponsored by Andrew Nguyen, a 41 year old Vietnamese born, Australian citizen. The parties indicate they met in December 2015 in Vietnam and married on 5 August 2017. The applicant declares no previous marriages or de facto relationships. The sponsor declares two previous marriage relationships. The first marriage was in 2003 and ended in divorce in 2009. The second marriage was in 2011 and the divorce occurred in 2017. There were no children from either of these relationships. The sponsor sponsored both of these partners for partner visas which were granted. On 16 May 2018 the Department wrote to the sponsor informing him that his application for sponsorship appears to be affected by the sponsorship limitation requirement in r. 1.20 as he has previously sponsored two people and inviting him to provide information about compelling circumstances that may lead the decision maker to approve the sponsorship. The Department file indicates a response was received on 12 June 2018 including a statutory declaration from the sponsor dated 19 May 2018 and a Psychologist Report relating to the sponsor dated 23 December 2017. The Tribunal notes that, apart from the email correspondence from the representative confirming submission of these documents, the actual documents are not included in physical file BCC20172925251 sent to the Tribunal. File records also indicate on 4 April 2018 the applicant’s representative submitted evidence of the ongoing relationship including joint Westpac statements, photos of the couple socialising with family and friends, applicant’s drivers’ licence showing her address, and ultrasound and medical documents confirming the applicant was pregnant with the couple’s child and due to give birth on or around 3 November 2018. File records indicate as at 16 May 2018, on the evidence submitted, the relationship was preliminarily assessed by an officer of the Department as satisfied. On 5 October 2018 the application was refused under r.120J relating to limitation on sponsorships on the basis that the delegate was not satisfied there were compelling reasons affecting the sponsor to justify approving the sponsorship. Evidence before the Tribunal On 30 September 2021 the Tribunal invited the applicant to provide comments and information relating to issues arising in the review as indicated above. On 13 October 2021 a response and supporting documents were received including:·Evidence of applicant and sponsor’s travel together in 2015, sponsor’s visits to Vietnam in 2016 and applicant’s travel to Australia in 2016 and 2017.·Evidence of money transfers from sponsor to applicant in 2016.·Photos of the couple’s engagement, wedding and socialising with family and friends in 2016.·Birth certificate for applicant and sponsor’s son, born in November 2018 and evidence of purchases relating to baby.·Wedding invitation addressed to applicant and sponsor.·Various correspondence, including drivers licences, addressed to applicant and sponsor showing same address.·More photos of the couple socialising with friends and family. ·Submissions addressing r.1.20J and compelling reasons: the applicant and sponsor have a child of the relationship, born in November 2018 and jointly share responsibility for the child. Their relationship remains genuine and continuing since August 2017, more than 4 years, and is a long standing relationship. FINDINGS AND REASONS

Decision

Reasons for decision

For the above reasons, the Tribunal is satisfied all of the requirements of cl 820.211 and cl 820.221 are met and the appropriate course of actions is to remit the application to the Department for consideration of the remaining criteria. DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211 of Schedule 2 to the Regulations·cl 820.221 of Schedule 2 to the Regulations.Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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