Nguyen (Migration)

[2020] AATA 1047

Nguyen (Migration) [2020] AATA 1047 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hai Phuc Nguyen

CASE NUMBER:  1720426

HOME AFFAIRS REFERENCE:               BCC2016/3118763

MEMBER:Rosa Gagliardi

DATE:30 March 2020

PLACE OF DECISION:  Canberra (Australian Capital Territory)

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(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 30 March 2020 at 7:39pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria  – application lodged outside of relevant timeframe – compelling reasons for waiver – poor migration history  – remained in Australia unlawfully for 4.5 years – sponsor’s long-term mental health issues – high dependency on the applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 September 2016 on the basis of her relationship with her sponsor. 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 (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.820.211(2)(d)(ii) because it was considered that there were no compelling reasons for waiving the Schedule 3 criteria.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

6. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

7. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

   Criterion 3001

8. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

9. Departmental records show that the applicant last held a substantive visa on 15 March 2012, being the relevant day.  This Partner visa application was lodged on 20 September 2016.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

10. To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 criteria, that being Criteria 3001, 3003 and 3004.

    Compelling reasons

11. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

12. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

13. When the Department made its decision it understandably placed significant weight on the applicant’s poor migration history.  The applicant arrived in Australia on 5 June 2008 on a subclass 571 student visa.  On 15 March 2012, this visa was cancelled and the applicant failed to lodge a further visa to remain in Australia.  During the following 4.5 years the applicant remained in Australia unlawfully.  It was only when it suited her to lodge this Partner visa application that she emerged from her unlawful status to make herself known to the immigration authorities.  The Tribunal can only assume that in flouting Australia’s immigration laws the applicant would have been prepared to breach other requirements that she not work unlawfully, for example.  The Tribunal places considerable weight on the applicant maintaining an ongoing presence in Australia without having a lawful right to do so.

14. The Tribunal places some weight in the applicant’s favour in terms of her claims that when she became an unlawful non-citizen in Australia she was young and studying in high school in 2008.  It is claimed that her family ceased to financially support her when she turned 18.  Her parents were divorced and she had no family living in Australia to provide her with support of any kind, including financial support.  At the time she was disorientated, lonely and confused and it is claimed that she was taken in by a person from her home village in Vietnam.  This does not, however, entirely excuse the applicant’s conduct in not seeking assistance from the Department of Home Affairs to regularise her status.

15. The Tribunal considers, however, that it cannot make a decision predominantly based on the applicant’s migration history.  In assessing whether there are compelling reasons for waiving the Schedule 3 criteria, the Tribunal is required to assess the evidence as a whole.

16. The applicant is a Vietnamese national and is 27 years of age.  The sponsor, Mr Tran, is a 30 year old who had previously married and is divorced.  The applicant and sponsor met in 2011 and married on 3 September 2013.  It appears, however, that the relationship has been beset by difficulties relating to the sponsor who has mental health issues and is serving a sentence in a correctional facility. 

17. At the time of application the parties had lived together in excess of 2 years and at the time of review, while the sponsor is incarcerated, the parties continue to maintain that they are in a spousal relationship.  The parties have now been married for 6 plus years and the Tribunal considers that the relationship can be characterised as long-term. 

18. At the time of application it was claimed that the parties had plans to have a family together. The applicant has argued that she had a miscarriage in the early stages of their marriage.  The Tribunal places the minimum of weight on this matter, however, as there is limited medical evidence before it in terms of the applicant having suffered significant psychological harm as a result.  The Tribunal accepts that the applicant would have been distressed and deeply affected by the loss, but the Tribunal has little medical evidence that the applicant’s psychological condition was so affected that she could not leave Australia to lodge her application offshore.

19. The Tribunal does, however, place significant weight overall on the psychologists’ reports submitted highlighting the sponsor’s long-term difficulties. 

20. It appears that the sponsor and applicant approached a psychologist, Mr Thomas Clifopoulos, as early as November 2014, referring to the mutually supportive role the parties play in each other's lives, although the Tribunal notes that Mr Clifopoulos appears in the report to have confused the applicant with the sponsor.  The Tribunal places some, albeit limited, weight on this report as it does not point to Mr Clifopoulos having undertaking any testing or that he made a diagnosis of the parties’ mental health based on any probative evidence.

21. In a report by Counselling psychologist, Ms Sandra Nguyen, dated 14 July 2016, whom the sponsor saw and was encouraged to continue seeing, reflected that she had administered several psychological testing mechanisms to determine the sponsor’s psychological well-being. 

22. In the first instance, Ms Nguyen administered the Kesslor Psychological Distress Scale (K10) on 2 July 2016 to yield a global measure of distress based on questions about anxiety and depressive symptoms experienced over a four week period by the sponsor.  Ms Nguyen reported that the sponsor indicated “severe psychological distress”.

23. Secondly, the psychologist, Ms Nguyen administered the Depression Anxiety Stress Scales (DASS 21) and the sponsor’s scores “placed him in the extremely severe range for Anxiety and moderate range for Depression and Stress”. 

24. Ms Nguyen’s diagnosed the sponsor with Adjustment Disorder with Mixed Anxiety and Depressed Mood according to the Diagnostic and Statistical Manual of Mental Disorder (5^th Edition).  The sponsor was struggling with sleep and was struggling to focus on his work.  One of the sources of his distress was the fact that he would not cope and was concerned about a deterioration in his condition due to his fears that the applicant would be deported. He has no other family in Australia.  Ms Nguyen also reported she had concerns that the applicant’s departure would have a deleterious effect on his already compromised mental health condition.

25. The Tribunal places significant weight on Ms Nguyen’s report which was written with the benefit of continued sessions with the sponsor and is based on appropriate testing.  A more general report was provided by Ms Nguyen on 29 September 2016 in relation to the sponsor’s condition.

26. The Tribunal appreciates that it is not out of the ordinary that couples would become distressed at the thought of separating from a significant other.  Nonetheless, in the sponsor’s case, his distress was over and above the usual distress that two persons might experience because one of the parties is required to be offshore for a period while the visa application is being processed.

27. The sponsor’s high dependency on the applicant, particularly as he is now incarcerated (the details of which are unknown to the Tribunal) and has no family in Australia, would mean that the sponsor has derived support from the applicant and on release (due shortly), will continue to do so.

28. Having considered the evidence individually and cumulatively, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

29. 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 820 visa.

    DECISION

30. 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(2)(d)(ii) of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.