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

1. 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).

2. 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).

3. 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)).

4. The applicant applied for review of the decision to the Tribunal on 6 October 2018.

5. 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.

6. The applicant responded with a submission and supporting documents dated 13 October 2021.

7. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

9. 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.

10. 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.

11. 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. 

12. 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.

13. 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.  

14. 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

15. On 30 September 2021 the Tribunal invited the applicant to provide comments and information relating to issues arising in the review as indicated above.

16. 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

17. The primary issue in the present case, on which the application was refused, is whether the sponsorship requirements are met, and in particular whether approval of the sponsorship is precluded by r.1.20J or there are compelling reasons affecting the sponsor to allow the sponsorship to be approved.  The Tribunal has also considered r. 1.20KC, on the evidence arising in the material before it.

18. Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include 820.211(2) in respect of which there are specific requirements including (2)(c) which requires that the applicant is sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’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).

19. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. Approval of sponsorship is subject to limitations contained in reg 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. 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, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.  For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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 820.221.

20. In the present case, the Tribunal is satisfied the application is sponsored by a person who is over the age of 18 years and is an Australian citizen, and therefore the time of application requirements of  cl.820.211(2)(c) are met.

21. The Tribunal finds the sponsor has previously sponsored two persons who were granted relevant permissions and therefore the sponsorship is affected by r.1.20J.

    Regulation1.20J

22. Regulation 1.20J of the Regulations 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. 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).

23. Information provided in the application and by the applicant and sponsor to the Department, indicates that the sponsor has been married two times previously and has sponsored both of these wives for Partner visas, which were granted.  Departmental records confirm that the sponsor sponsored these individuals and that they were granted partner visas on the basis of those sponsorships.   On this evidence, the Tribunal finds that r.1.20J applies, unless it is satisfied that there are compelling circumstances affecting the sponsor.

    Compelling reasons

24. 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.

25. Having regard to all of the material now before it, including the information provided to the Department and the evidence provided to the Tribunal, the Tribunal is satisfied that there are compelling reasons affecting the sponsor which justify the limitation on sponsorship in this case not to apply.  In reaching this conclusion, the Tribunal has taken into account the following matters.

26. The applicant and sponsor have a child born in November 2018.  Evidence of the birth certificate, naming the sponsor as the father and photos of the couple and their child celebrating birthdays and socialising together and with friends and family has been provided.  The applicant and sponsor claim their relationship has been continuing and ongoing since their marriage in 2017, a period in excess of 4 years. The Tribunal is satisfied on all of the evidence before it, including recent evidence of correspondence indicating the applicant’s address and photos, that the couple continue to live together and socialise as a couple, and together with the evidence of the child of the relationship and the duration, it is satisfied that their relationship is long standing.

27. The Tribunal observes that Department policy indicates compelling circumstances affecting the interests of the sponsor include where there is a child dependent on each of them and where the relationship is long standing, though it is also mindful that this policy is not binding on the Tribunal and that these examples are not exhaustive of the circumstances that may be relevant. 

28. In addition to this, the Tribunal takes into consideration the passage of time between the previous sponsorships and the present application, and information before it regarding the circumstances of the second sponsorship. These considerations are relevant to the extent that they do not disclose any particular concerns regarding the sponsor’s sponsorship history that would detract from concluding there are compelling reasons now.

29. All of above reasons cumulatively lead the Tribunal to conclude that there are compelling reasons affecting the sponsor, such that the previous sponsorships do not prevent approval of the sponsorship in this case under r.1.20J(2).   

30. Although the delegate did not consider any other issues in refusing the application on the basis of r.1.20J, the Tribunal has also considered the application of r.1.20KC -Limitation on approval of sponsorship -prospective marriage and partner visas in light of the evidence of the sponsor’s National Police Certificate provided to the Department disclosing his history of court outcomes. 

    Regulation 1.20KC

31. Regulation 1.20KC of the Regulations provides that the sponsorship of each applicant for a Partner or Prospective Marriage visa must be refused if the sponsor has been convicted of a ‘relevant offence’ and has a ‘significant criminal record’ in relation to it. A ‘relevant offence’ is defined in r.1.20KC(2) as an offence against a law of the Commonwealth, a State, a Territory or a foreign country, involving matters such as violence, harassment, breaches of apprehended violence orders, weapons, people smuggling, human trafficking, ancillary offences, and attempts to commit offences involving such matters. Regulation 1.20KD provides that a ‘significant criminal record’ includes being sentenced to death, life imprisonment, imprisonment of 12 or more months, or 2 or more terms of imprisonment totalling 12 months or more, in relation to a relevant offence or offences. A sentence or conviction for a relevant offence must be disregarded if the conviction has been nullified or the sponsor has been pardoned so that they are taken to have never been convicted of that offence: r.1.20KD(5).  The sponsorship may nevertheless be approved if it is reasonable to do so, having regard to matters including the length of time since the sponsor completed the sentence, the best interests of any children of the sponsor or primary applicant, and the length of the relationship between the sponsor and the primary applicant: r.1.20KC(4).

32. The Tribunal finds that the police certificate discloses a conviction for assault occasioning actual bodily harm in May 2000 for which the sponsor was sentenced to periodic detention for 2 years, and this comes within the definition of ‘relevant offences’ for the purposes of r.1.20KC(2) and significant criminal record under r.1.20KC(3) and r.1.20KD.

33. In considering, for the purposes of r.1.20KC(4), whether it is nevertheless reasonable to approve the sponsorship, the Tribunal has considered that the relevant conviction occurred over 20 years ago, there are no other convictions relating to relevant offences since then, and no convictions at all for over ten years, the applicant and sponsor now have a minor child of the relationship whose best interests are served by not forcing a separation between his parents on this basis, and the evidence indicates the parties are in a genuine and ongoing, long standing relationship.  For all of these reasons the Tribunal considers it is reasonable to approve the sponsorship despite the sponsor’s criminal history record. 

34. Therefore, the Tribunal approves the sponsorship and the applicant meets cl.820.221(4).  

35. Having regard to the above findings and all of the evidence before it, and the definition of spouse in s5F of the Act, the Tribunal is satisfied the applicant is the spouse of the sponsoring partner at time of application and continues to be the spouse at time of decision, and therefore cl.820.211(2)(a) and cl.820.221(1) are met.  As the applicant held a substantive visa at time of application, cl.820.211(2)(d) does not apply.  

36. 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

37. 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 Sripathy
    Member