Nguyen (Migration) - [2020] AATA 2557

Nguyen (Migration) [2020] AATA 2557 (20 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hoang Yen Nguyen
VISA APPLICANTS:  Mr Van Loi Phan
Ms Xu The Linh Phan
Mr Minh Tri Phan
CASE NUMBER:  1805050
DIBP REFERENCE(S):  BCC2017/1455833
MEMBER:Brendan Darcy
DATE:20 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.222 of Schedule 2 to the Regulations

Statement made on 20 May 2020 at 12.56pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – sponsorship limitation – Subclass 143 visa held for less than five years – former spouses remarried – no application for contributory parent visa at the same time – compelling circumstances – second applicant’s autism and mental health – first applicant’s care of second applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.20KA; Schedule 2, cls 309.213, 309.222

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 Immigration on 8 January 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the primary visa applicant or the visa applicant) applied for the visa on 21 April 2017 on the basis of their relationship with their 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 and r.1.210KA because the visa applicant did not have compelling reasons for not applying for a Subclass 143 (Contributory Parent) visa at the same time as the sponsor.
The review applicant appeared before the Tribunal on 14 May 2020 to give evidence and present arguments via a teleconference facility. The Tribunal also received oral evidence from the visa applicant (putative spouse of the sponsor) and the visa applicant’s son, Phan Xu Luan (the witness).
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant satisfies cl.309.222(1) on the basis of there…

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.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2020] AATA 2557
Case: [2020] AATA 2557
Decision Date: 20 May 2020

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, where the primary issue was whether the sponsorship limitation under regulation 1.20KA(2) could be waived due to compelling circumstances, pursuant to regulation 1.20KA(3). The review applicant, who had previously been granted a Subclass 143 Contributory Parent visa on 9 April 2015, sought to sponsor the first visa applicant, a citizen of Vietnam, whom the review applicant claimed to have remarried. The visa application was refused by a delegate of the Minister on the basis that the sponsor had not held her Subclass 143 visa for the required five years. The review applicant sought review of this decision by the Tribunal.

The Tribunal was required to determine whether there were compelling reasons, other than financial ones, to waive the sponsorship limitation imposed by regulation 1.20KA(2). This regulation stipulates that a sponsor who holds a Subclass 143 visa must have held it for at least five years before they can sponsor another person for a Partner visa. The Tribunal also considered clause 309.222 of Schedule 2 to the Regulations, which relates to sponsorship requirements.

The Tribunal reasoned that the sponsor's Subclass 143 visa was granted on 9 April 2015, and the partner visa application was made on 21 April 2017. This meant the sponsor had not yet held the Subclass 143 visa for the requisite five years. However, the Tribunal noted that the sponsor and the first visa applicant claimed to have remarried in October 2016, after a period of friendship following a previous divorce. The Tribunal also considered the circumstances of the second and third visa applicants, the sponsor's adult daughter and grandson, who were included in the application. The Tribunal concluded that the matter should be remitted for reconsideration, directing that the first visa applicant met the criteria under clause 309.222 of Schedule 2 to the Regulations. The Tribunal also cautioned that the Department might refuse the visa on other grounds, such as whether the second and third visa applicants were members of the same family unit as the spousal couple.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the visa applicant satisfies cl.309.222(1) on the basis of there being any compelling reasons, other than reasons related to their financial circumstances, to waive the sponsorship limitation under r.1.20KA(2), pursuant to r.1.20KA(3). Background The review applicant, born on 5 March 1953, sponsored the visa applicant, a citizen of Vietnam, by validly applying for a combined (Class UF Subclass 309/Class BC Subclass 100) offshore partner visa on 21 April 2017. On 4 August 2013, the sponsor was granted a visa for a temporary Class UT Subclass 173 (Contributory Parent) visa and migrated to Australia to live with her son (the witness), Phan Xu Luan, and his family. On 22 May 2014, the sponsor validly applied for a permanent Class CA Subclass 143 (Contributory Parent) visa. At the time of application of this visa under review, the review applicant, born on 22 November 1953, was a holder of a Class CA Subclass 143 visa since its grant on 9 April 2015. Prior to her migration to Australia, it is claimed that the sponsor had been married to the visa applicant between 1979 and 1993. The visa applicant and the sponsor claimed they remained friends after their divorce and that they remarried after they restarted their spousal relationship when the sponsor revisited Vietnam in October 2016. Attached to this application was the review applicant’s adult daughter, Ms Phan Xu The Linh (DOB: 23 May 1985) and the review applicant’s grandson, Master Phan Minh Tri (DOB: 7 March 2007). For the purpose of this decision, the adult daughter is to be referred to as the second visa applicant; and Master Phan Minh Tri as the third visa applicant. On 8 January 2018, a delegate on behalf of the Minister refused to grant the visa applicant a partner visa due to the sponsorship limitations whereby the sponsor of a partner must hold a Subclass 143 visa longer five years or longer pursuant to r.1.20KA. On 26 February 2018, the review applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. At the time of this review application, the delegate’s refusal decision was attached. On 12 May 2020, the review applicant’s representative provided a legal submission for the Tribunal to consider prior to the hearing. Are the sponsorship requirements met? Clause 309.213 requires that the visa applicant is sponsored by the review applicant, 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 r.1.03 of the Regulations). 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. Approval of 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, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.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 r.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The review applicant and the visa applicants should be aware that it remains open to the Department not to grant this visa on other criteria, including whether the second and third visa applicants are members of the same family unit as the spousal couple as required by regulation 1.12. DECISION The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.222 of Schedule 2 to the RegulationsBrendan DarcyMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant satisfies cl.309.222(1) on the basis of there being any compelling reasons, other than reasons related to their financial circumstances, to waive the sponsorship limitation under r.1.20KA(2), pursuant to r.1.20KA(3). Background The review applicant, born on 5 March 1953, sponsored the visa applicant, a citizen of Vietnam, by validly applying for a combined (Class UF Subclass 309/Class BC Subclass 100) offshore partner visa on 21 April 2017. On 4 August 2013, the sponsor was granted a visa for a temporary Class UT Subclass 173 (Contributory Parent) visa and migrated to Australia to live with her son (the witness), Phan Xu Luan, and his family. On 22 May 2014, the sponsor validly applied for a permanent Class CA Subclass 143 (Contributory Parent) visa. At the time of application of this visa under review, the review applicant, born on 22 November 1953, was a holder of a Class CA Subclass 143 visa since its grant on 9 April 2015. Prior to her migration to Australia, it is claimed that the sponsor had been married to the visa applicant between 1979 and 1993. The visa applicant and the sponsor claimed they remained friends after their divorce and that they remarried after they restarted their spousal relationship when the sponsor revisited Vietnam in October 2016. Attached to this application was the review applicant’s adult daughter, Ms Phan Xu The Linh (DOB: 23 May 1985) and the review applicant’s grandson, Master Phan Minh Tri (DOB: 7 March 2007). For the purpose of this decision, the adult daughter is to be referred to as the second visa applicant; and Master Phan Minh Tri as the third visa applicant. On 8 January 2018, a delegate on behalf of the Minister refused to grant the visa applicant a partner visa due to the sponsorship limitations whereby the sponsor of a partner must hold a Subclass 143 visa longer five years or longer pursuant to r.1.20KA. On 26 February 2018, the review applicant validly applied to have the delegate’s refusal decision reviewed by the Tribunal. At the time of this review application, the delegate’s refusal decision was attached. On 12 May 2020, the review applicant’s representative provided a legal submission for the Tribunal to consider prior to the hearing. Are the sponsorship requirements met? Clause 309.213 requires that the visa applicant is sponsored by the review applicant, 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 r.1.03 of the Regulations). 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. Approval of 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, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.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 r.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.