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

1. 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).

2. 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.

3. 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.

4. 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).

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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.

9. 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.

10. On 22 May 2014, the sponsor validly applied for a permanent Class CA Subclass 143 (Contributory Parent) visa.

11. 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.

12. 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.

13. 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.

14. 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. 

15. 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.

16. 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?

17. 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).

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. 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.

19. The delegate outlined in the decision record that the visa applicant satisfied cl.309.213. The Tribunal is also satisfied on the basis that the visas applicant was the sponsor, an Australian permanent resident, were in a married spousal relationship at the time of application.

20. As discussed in the hearing, neither the visa applicant nor the sponsor disagreed that the primary visa applicant did not apply for a contributory parent visa at the same time as the sponsor in 2013, that the sponsor was granted a Subclass 143 visa on 9 April 2015 and that the Class UF Subclass 309 partner visa application currently under review was lodged with the department on 21 April 2017. Neither was it disputed that the partner visa application was lodged less than five years since the sponsor was granted a Subclass 143 visa.

21. In this matter, the sponsorship of this partner visa applicant is not limited by the operation of regulation 1.20J as there is no evidence the sponsor is a person who has sponsored another person for a partner visa.

22. Regulation 1.20KA(2) sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa, including Class UF visas. It only applies to applications for these visas made on or after 1 July 2009. In such cases, the sponsorship must not be approved unless at least five years has passed since the sponsor was granted her or his Contributory Parent or Contributory Aged Parent visa.[1]

    [1] r.1.20KA(1), (2),(4).

23. As the sponsor did not hold a permanent Contributory Parent visa for at least five years, the application does not appear satisfy r.1.20KA(2) at the time of application for this partner visa under review.

24. These requirements however apply unless there are compelling circumstances affecting the visa applicant: r.1.20KA(3).

25. Specifically, the visa applicant must either have had compelling reasons (other than financial) for not applying at the same time as the proposed sponsor for a Subclass 143 or 864 visa; or if the visa applicant withdrew such an application, compelling reasons (other than financial) for withdrawing the application.

26. The expression ‘compelling reasons’ is not defined in the legislation and has not been considered in the context of r.1.20KA sponsorship limitations. However, judicial consideration of the expression ‘compelling circumstances’ in the context of the r.1.20J sponsorship limitation indicates that 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.

27. The Tribunal notes that the delegate took note of an extract Divorce Court Order dated 1 November 2011 from Vietnam indicating the sponsor and the visa applicant divorced in 1993; a birth certificate of their common daughter, the second visa applicant; and a household registration booklet indicating that the parties have another common child (the witness). The delegate also took note of a psychological report pertaining to the sponsor.

28. The delegate described the compelling reasons presented him as follows:

    ·The sponsor and the visa applicant married in 1979, had three common children and divorced in 1993;

    ·The divorced couple remained friends and lived in the same house to raise their children until 14 August 2013 when the sponsor was granted a Subclass 173 (Contributory Parent) visa and migrated to Australia;

    ·The sponsor lived with her son (the witness), her daughter in law and her grandchildren;

    ·On 9 April 2015, the sponsor was granted a Subclass 143 visa;

    ·In November 2015, the sponsor’s relationship with her daughter in law deteriorated due to irreconcilable differences and she lived separately from her son. This caused her distress;

    ·On 16 October 2015, the sponsor returned to Vietnam. After spending some time with the visa applicant, realised they continued to have shared values and a shared family and decided they should live the rest of their lives together.

29. The delegate was not satisfied that these incidents could have been the reasons for which the visa applicant did not apply for a Subclass 143 visa at the same time as the sponsor as they did not interfere with the visa applicant applying at the same time. It was further noted that the visa applicant was not prevented by law to apply for a Subclass 143 visa and the evidence of living in the same household after they divorced in 1993 raised concerns about the nature of their relationship before the sponsor applied for a Subclass 143 visa. The delegate found no compelling reasons for the visa applicant not to apply at the same time as the sponsor applied for a Subclass 143 visa and did not grant the visa.

30. During the scheduled hearing, the sponsor and the visa applicant provided additional evidence as to the circumstances when the visa applicant did not apply for a contributory parent visa at the same time as the sponsor.

31. The Tribunal accepts that the visa applicant and the sponsor were not in a married spousal relationship in May 2014, as they had divorced in 1993. It is accepted that after their divorce the visa applicant and the sponsor continued to care and nurture their common children and that they shared same household as an otherwise divorced couple. It also accepts there was serious deterioration in the relationship between the sponsor and her daughter in law. With no evidence to the contrary, the Tribunal accepts the applicant and the sponsor have rekindled their marriage.  The Tribunal concurs with the delegate that based on these limited grounds, no compelling reasons exist to waive the sponsorship limitation under regulation 1.20KA(3).

32. However, during the hearing, it emerged that the second visa applicant had several psychological, neurological and/or behavioural conditions and that this merited elaboration as a basis for a compelling non-financial reason to consider.

33. As discussed in the hearing, on the departmental file there is a claim in the legal submission to the Department that the second visa applicant “is intellectually impaired, and a divorcee living with the [primary visa] applicant. She is currently unemployed and has 1 child, a son named PHAN, Minh Tri (DOB. 07/03/2007). Despite having gotten married, she and her husband remained living with her family. [2] It further states that the marriage of the second visa applicant was unhappy; that ‘her mental condition worsened leading to the marriage breakdown’. The second visa applicant was also compelled by a court to give her ex-husband full custody of the third applicant. This, in turn, precipitated a nervous breakdown in the second applicant whereby she could not work or function normally and that she has since relied on her father. This information appears to have been provided in order convince the delegate that the application satisfies regulation 1.12 (Member of the same family unit) which is a different criterion

    [2] BCC2017/1455833 folios144-148.

34. Neither these issues in relation to r.1.20KA(3) were raised in the decision record or the representative’s submission to the Tribunal prior to the scheduled hearing.

35. The Tribunal has received oral and written evidence as well as reports from a psychologist which variously described the second visa applicant as being intellectually disabled, intellectually handicapped, mentally incapacitated, mentally retarded, mentally disabled, functionally impaired and simple. It is noted that the sponsor also described her as autistic or having autism during the scheduled hearing.

36. The Tribunal enquired whether there is any medical or other third-party information to assist it in identifying the disability. The representative submitted several medical documents to support the claim. The medical documents include a prescription for serious stress and mild depression; an EEG (electroencephalogram) reports indicating normal electrical patterns in the brain indicating no signs of epilepsy, head injuries, seizures; and a mild result for HAM-A and HAM-D (Hamilton Depression Rating Scales). It is noted the HAM-A and HAM-D are multiple item questionnaires used to provide an indication of depression. While this evidence is supportive of the second visa applicant experiencing some adverse mental health conditions, it is not supportive of any long-term lack of brain functionality or, long held mental conditions, mental retardation, acquired brain injury or even if the applicant has autism spectrum disorder (ASD).

37. ASD, according to the American Psychiatric Association, is a complex developmental condition that involves persistent challenges in social interaction, speech and nonverbal communication, and restricted/repetitive behaviours. The effects of ASD and the severity of symptoms are different in each person.  According to the United States’ Center for Disease Control and Prevention (CDC), one in 59 children is estimated to have autism.  Autism spectrum disorder is also three to four times more common in boys than in girls, and many girls with ASD exhibit less obvious signs compared to boys. Autism is a lifelong condition. However, many children diagnosed with ASD go on to live independent, productive, and fulfilling lives.

38. According to research by Vu Song Ha, Andrea Whittaker et al in a paper entitled, “Living with autism spectrum disorder in Hanoi, Vietnam”, there is limited understanding of ASD in Vietnam. The research from in-depth interviews of 27 parents of children with ASD and 17 key informants in Hanoi found ASD is ‘culturally and socially constructed’ as a disease’ brought on by family problems rather than a lifelong developmental disorder that needs support. Social attitudes in Vietnam towards people with ASD are based upon stereotypes of people with ASD as mentally ill and potentially dangerous and traditional beliefs in rebirth and karma which associate disability as a consequence of an ancestor's karmic demerit (These attitudes are common in other East Asian cultures such as Korea and China). There are limitations in the assessment and diagnosis of ASD.[3] The negative social attitudes towards disability and ASD are manifested through various forms of discrimination. For children with ASD these range from various forms of social exclusion, including exclusion from education, institutional neglect, bullying and physical violence. In particular, stigma is derived from the mistaken association of ASD with schizophrenia.

    [3] ‘Living with autism spectrum disorder in Hanoi, Vietnam’ by Vu Song Ha, Andrea Whittaker et al, in the Social Science & Medicine Volume 120, November 2014, Pages 278-285.

39. The Tribunal asked several questions of the visa applicant, the sponsor and the witness to assist it in considering whether there is an undiagnosed condition like ASD attached to the second visa applicant. The sponsor and the visa applicant both attested the second visa applicant demonstrated developmental delays in speech and an inability to make and keep friends, maintain employment, although she appeared otherwise normal and had no physical disabilities. They also mentioned her marriage broke down because of these behaviours which became apparent after marriage. The Tribunal notes that the sponsor conveyed to her psychologist that her daughter was unable to care for her son (the third visa applicant) and that it was her and not her daughter who performed daily duties such as feeding, bathing and dressing the child.  This indicates to the Tribunal behavioural characteristics associated with ASD. They said that she did not attend school regularly but had acquired the equivalent of Year 11. This indicated to the Tribunal that the second visa applicant had a degree of reasonable intelligence and an absence of mental retardation or intellectual capacity as such. There were also mentions of having nightmares and being affected by sleeplessness and other depressive symptoms which might be explicable in the context of experiencing a traumatising relationship breakdown and losing custody of her child in combination with the ASD but is not schizophrenia which many parents with ASD children fear will develop.

40. Both the sponsor and the visa applicant talked about feelings of guilt and all those who provided oral evidence attested that the second visa applicant’s behavioural difficulties arose from arguments about family finances. They attested to the disability, the sadness and the social isolation of their daughter being one of the reasons their own marriage broke down. As the country information above illustrates these familial and social responses reflect widespread community views of ASD as culturally and socially constructed and the widespread limitations of assessment of ASD and clinical support and social services in that country. The Tribunal is also mindful that the sponsor and the visa applicant have limited education and are traditionally minded persons who have restricted capacities to seek out formal assessments of such a complex neurological and behavioural syndrome as ASD and/or articulate their observations as parents of the second visa applicant.

1. It is to some extent disappointing that there is no clinical assessment of the applicant’s disability submitted to the Tribunal. However, it has decided to proceed in assessing a condition based on the available evidence outlined above.

2. Considering the overall oral, written and documentary evidence, the Tribunal is accordingly satisfied the second visa applicant’s claimed disability is Autism Spectrum Disorder and that this finding is relevant in this matter.

3. At the time the sponsor applied for a Subclass 143 visa and the visa applicant did not in May 2014, the visa applicant conveyed to the Tribunal that he wanted to remain with his daughter with ASD because she was vulnerable and functionally dependent on him. 2014 was also the year after the sponsor migrated to Australia and thereby withdrawing her daily support to her daughter and grandson in Vietnam. It was also the year that the second visa applicant divorced her husband and was required to hand over the third visa applicant to her former husband as the primary carer. (This is outlined in the divorce court order dated 4 November 2014 on the Departmental file).[4]  The Tribunal also finds it is reasonable to assess that the functional challenges of the second visa applicant arising from ASD were also exacerbated by the emotional and psychological impact of these incidents on her and her father and that these pre-occupations throughout 2014 invited the Tribunal to consider there were compelling non-financial reasons the visa applicant did not apply for the same Subclass 143 visa at the time when the sponsor did so.  

   [4] BCC2017/1455833 folios 69-70

4. The Tribunal is satisfied that these circumstances on 22 May 2014 amount to being compelling reasons, other than financial reasons, for the visa applicant not applying for a Subclass 143 visa and that the sponsorship limitation pertaining to r.1.20KA(2) should be waived, pursuant to r.1.20KA(3).

5. There is no suggestion that sponsorship limitations under subregulations 1.20KB or 1.20KC are relevant in this matter as required by cl.309.222(2) and (3).

6. Having considered the evidence, the Tribunal has satisfied cl.309.222(1), (2) and (3).

7. On the evidence before the Tribunal the requirements of cl.309.222 are met.

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

9. 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

10. 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

    Brendan Darcy
    Member