Nguyen (Migration)

[2024] AATA 76

Nguyen (Migration) [2024] AATA 76 (18 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Kim Nhung Nguyen

REPRESENTATIVE:  Ms Dao Nguyen (MARN: 1681367)

CASE NUMBER:  2102537

HOME AFFAIRS REFERENCE(S):          BCC2018/1968741

MEMBER:Stephen Witts

DATE:18 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa

Statement made on 18 January 2024 at 2:42pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – two previous sponsorships – compelling circumstances – marriage certificate – long-term relationship – medical issues – return visits to Vietnam – family network in Vietnam – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.02, 1.15, 1.20

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 on 23 February 2021 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 6 May 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant met the requirements of Subclause 820.221(4) and the sponsorship limitations outlined in Regulation 1.20J (limitation on approval of sponsorships-spouse, partner, prospective marriage and independency visas) and that the applicant did not demonstrate compelling circumstances affecting the interests of the sponsor.

3. The applicant appeared before the Tribunal on 18 January 2024 to give evidence and present arguments.

4. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Ngoc Hein Chau.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant, Mrs Thi Kim Nhung Nguyen, satisfied the requirements of Subclause 820.221(4) and the sponsorship limitations outlined in Regulation 1.20J (limitation on approval of sponsorships-spouse, partner, prospective marriage and independency visas) and whether the applicant demonstrated compelling circumstances affecting the interests of the sponsor, Mr Ngoc Hien Chau.

   Subclause 820.221(4)

   (4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
   (a) the sponsorship has been approved by the Minister and is still in force; and
   (b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).

   Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships

   Subregulation 1.20J

   (1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:

   (a) not more than 1 other person has been granted a relevant permission as:

   (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
   (ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and
   (b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) — not less than 5 years has passed since the date of making the application for that relevant permission; and
   (c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission.

   Further, for applications made on or after 1 November 1996:

   At most, a person may enter into 2 approved spouse, de facto partner, interdependent partner or prospective spouse (fiancé) sponsorships (reg. 1.20J(1)(a))
    Even if regulation 1.20J(1)(a) is met, a person who has sponsored/nominated a person as a spouse, de facto partner, prospective spouse or interdependent partner cannot have another sponsorship approved under any of these visa categories until at least 5 years after the first visa application was made (reg. 1.20J(1)(b))

   Persons who themselves have been sponsored/nominated as a spouse, de facto partner, prospective spouse or interdependent partner cannot sponsor a partner under any of those visa categories until at least 5 years after their own visa application was made (reg. 1.20J(1)(c)).  

9. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

10. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record dated 23 February 2021 by the applicant.

11. According to the delegate the applicant applied for Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visas on 6 May 2018.

12. According to the delegate it assessed that departmental records confirmed that the sponsor, Mr Ngoc Hein Chau, had two previous sponsorships which were commenced on 30 March 2001 and 26 June 2007 and that both sponsorships had resulted in the grant of a partner visa. It stated that it therefore decided that regulation 1.02J(1)(a) was not met. It also noted that although the sponsor did not satisfy this regulation; that the sponsorship may be approved if it is established that there are compelling circumstances affecting the sponsor.

13. According to the delegate it asserted that compelling circumstances affecting the interests of the sponsor may include such things as the applicant and her sponsor having a dependent child, or the previous spouse has died, or that the previous spouse has abandoned the sponsor, and that there are children dependent upon the sponsor requiring care and support.

14. According to the delegate’s decision the applicant was informed on 18 January 2019 that the application was affected by sponsorship limitations and was invited to provide any compelling circumstances she wished to be considered to have the sponsorship limitation waivered.

15. According to the delegate the applicant provided some material including a medical certificate for the sponsor, a translated letter from the sponsor regarding this relationship and his previous relationships, further medical certificates, and blood test results.

16. According to the delegate it considered the information provided stating that no evidence was provided as to whether there was anything that prevented the applicant from relocating to her country of origin, and therefore it was not satisfied that compelling circumstances existed to warrant the waiver of regulation 1.20J. On that basis the delegate made a finding that the applicant does not satisfy clause 820.221(4) of the Migration Regulations.

17. The Tribunal has also considered evidence provided prior to the hearing by the applicant and it now turns to a review of this material.

18. Included was material denoted as referring to the financial aspects of the relationship which included payslips for the applicant from 2022 and 2023 for her work as a manicurist in a part-time capacity, employment income details from this period for the applicant, income tax returns for this period, PAYG payment summaries for 2022, benefit deductions for the sponsor for 2023, an income statement for the sponsor for this period, and joint bank statements dating from 2018.

19. Also included was material denoted as referring to the social aspects of the relationship including birthday cards, wedding photographs, other photographs, and three Form 888’s from relatives of the applicant stating that the applicants are in a genuine marriage from a brother-in-law, sister, and another relative.

20. Also included was material denoted as referring to the household aspects of the relationship including utility bills, rent account statements, client service visits to the sponsor, rent subsidy review material for the sponsor, a jewellery invoice and other receipts, and medical documents.

21. The Tribunal notes that the medical information includes a reference dated 21 March 2023 to a right knee ultrasound for the sponsor indicating a medical problem with the sponsor’s knee being a form of medial meniscus tear.

22. Also included was material denoted as referring to the nature of the commitment of the relationship including superannuation material from 2021 to 2023 for the applicant, Centrelink information for the sponsor, and superannuation nomination information, some Centrelink material, and marriage certificate payment invoices, and evidence of travel.

23. Also included was a relationship certificate dated 4 December 2023 from the applicant stating that she is a Vietnamese citizen and that she has a marital relationship with her husband the sponsor who is an Australian citizen and that they are living together. She stated that she has never been married before and that her husband has had three previous relationships and that the first relationship included a son born on 24 April 1987, and that they were not married. She stated that he then had a married relationship dating from 20 March 2001 and that that marriage ended on 3 March 2006, and that after that he married again on 2 April 2007 and that they divorced on 25 May 2014.

24. She stated that they first met in 2017 in Australia and that their relationship developed even though they lived in different cities for a time and that she returned to Vietnam when her visitor visa ceased in 2018 but that he said he would register to marry her and wanted to commit to the relationship. She stated that before she returned to Vietnam at that time, they decided to marry receiving a marriage certificate on 2 May 2018, and that on 6 May 2018 they applied for a partner visa. She stated that they then held a wedding on 16 June 2018 at her parents’ house in Vietnam and that they then returned to Australia and that they lived together from 2018 until 2020 but that they were apart for a period while she was in Melbourne and he was in Sydney during the pandemic, and that after this she returned to Sydney to be with her husband and that they are living together.

25. Regarding the household circumstances of the relationship, she stated that they live together, and she takes care of the cooking and laundry and that he is also involved in housecleaning and cooking and shopping. Regarding the financial aspects she stated they have a joint bank account, but she works part-time, and that her husband is not working due to health reasons. Regarding the social aspects of the relationship, she stated that they held a wedding ceremony in Vietnam and that everyone knows they are married and that there are social aspects to the relationship, and that they have travelled together. Regarding the nature of the commitment, she stated that her husband has had many problems relating to his knee and shoulder and that she cares for him, goes to doctors’ appointments with him, and that she hopes to learn English and find a better job.

26. The Tribunal also notes that a submission has been provided by the applicant’s representative dated 4 December 2023 stating that the applicant is a 53-year-old woman who was born in Vietnam, that her parents live in Vietnam, and she has two sisters living in Australia, and that the sponsor is an Australian citizen who was born in 1958 and has three previous relationships. It was stated that the applicant arrived in Australia as a visitor and that they first met on 30 November 2017 and that they committed to a shared life together and married on 2 May 2018, and that the sponsor’s application was refused under regulation 1.20J, and on 23 February 2021 the applicant received a decision stating that her application for a partner visa was refused.

27. Regarding the financial aspects of the relationship, it was stated that the sponsor and the applicant’s financial capacity is limited and that they do not own major assets, but they do have a joint bank account at the Commonwealth Bank which was opened on 3 May 2018. It was stated that the applicant works part-time as a nail technician and that the applicant’s salary is approximately $435 per week after taxes and goes into that joint bank account. It was stated that the sponsor is currently not working due to his health condition, but he receives a government subsidy of $687 per fortnight which he uses to pay the rent and whatever is left goes into the joint account.

28. Regarding the nature of the household, it was stated that the applicant and the sponsor live together and have lived together since 2017, it was also stated that they share all responsibilities including housework and go out with friends.

29. Regarding the social aspects of the relationship, it was stated that all their friends and family in Vietnam and Australia are aware that they are married and living together and that they attend social events as husband-and-wife.

30. Regarding the nature of the commitment, it was stated that they have known each other since 2017 and that they have been married since 2 May 2018, and that they had been living together for more than five years since that date and therefore they are in a long-term relationship.

31. Regarding compelling reasons which exists for the approval of the sponsorship it was stated that the applicants have been married for more than five years and seven months and that they are in a genuinely continuous relationship. It was also stated that the sponsor has been suffering from joint effusion problems with his medial meniscus and that he has problems with his movements.

32. In summary it was stated that the parties are in a genuine long-term relationship and that there are existing compelling reasons why the application should be approved.

33. At the hearing the Tribunal had a discussion with the applicant and her sponsor about the application.

34. The applicant, Mrs Nguyen, stated that she first came to Australia as a visitor in 2017 and that she met her sponsor at that time. She stated that they went back to Vietnam in 2018 and were married in Vietnam in May of that year and that they have been living together in Australia ever since except for a period during the pandemic when they were in separate cities in Australia and for the time they spent in Vietnam.

35. She stated that she has two sisters in Australia who have two children each and that she has her parents in Vietnam and two brothers and a sister, and the brothers have two children each, and that her sister has one.

36. She stated that there were compelling circumstances in her application and that she was born and raised in Vietnam and that she didn’t get to marry anyone because she was focused on her work. She stated that also she had a medical condition, and needed an operation to remove ovarian cysts, and that her husband, the sponsor, helped her with this and that they are very compatible and need each other. She stated that she couldn’t be a mother and so she was lucky to have the sponsor as her husband and accept her the way she was in sickness and health. She stated that she needs him to take care of her and that they want to stay together.

37. The sponsor, Mr Chau, stated that he first came to Australia in 1993 as a refugee but since then has been back to Vietnam on regular occasions except for a period during the pandemic and that he has generally been back to Vietnam to visit family every two or three years and usually stays for a period of two months. He stated that he last went back for two months at the beginning of 2023. He stated that he used to go back to visit his parents, but they are now deceased but that he has other relatives that he goes back regularly to see including two sisters and two brothers who have nine nieces and nephews together, and that he would generally live with one of his sisters at their parents’ old house. He stated that the only relative he has in Australia is his son who is currently single.

38. He stated that as well as visiting his family and staying with them he also visits and sees his wife’s relatives and that he also did go back for business reasons.

39. He stated that he is not working, that he used to work at restaurants, and at a tofu factory, and in the distribution industry, but has not worked since 2018. He stated that he is on Centrelink benefits and lives in government housing and as well as his knee problem he also has shoulder and neck problems and needs treatment such as massaging.

40. He stated that he has had two marriages that were the subject of his previous sponsorship of partner visa applicants and that he put his heart into those marriages but that they left him. He stated that his current wife provides a lot of comfort for him and provides him with support. He stated that he wants to have his wife by his side as it makes him feel better and that they want to grow old together.

41. The Tribunal had a detailed discussions with the applicant and the sponsor regarding the matters referred to in the delegate’s decision and also to the general circumstances of their life in Australia and notes that at no point did the applicant, or in particular the sponsor, indicate that they had any difficulty returning to Vietnam and that the sponsor has stated that he has made regular return visits to Vietnam since his arrival here in 1993 and was living most recently in Vietnam with his, and his wife’s, family for two months in 2023.

42. The Tribunal had a detailed discussion with the applicant and the sponsor regarding the sponsor’s previous sponsorships and finds that it is not in contention that the sponsor has two previous partner visa sponsorships and therefore the applicant does not meet regulation 1.02J(1)(a) unless there are compelling circumstances affecting the sponsor.

43. Accordingly, the Tribunal now turns to an assessment of the ‘compelling circumstances’ affecting the sponsor provided by the applicant and the sponsor.

    Compelling Circumstances

    Ability of applicant and sponsor to return to Vietnam

44. The Tribunal has carefully considered the compelling circumstances that would affect the sponsor if his wife had to return home to Vietnam. The Tribunal notes the evidence provided that the sponsor did come here to Australia in 1993 on a refugee visa but that since that time he has regularly returned to Vietnam for extended periods of time to stay with and visit family. He also indicated that he had some business connections at some point during this period between 1993 and 2023. He stated that he had family to return to and stay with and that he regularly stayed in his parents’ old house that one of his sisters is living in now. He also stated that he returns to Vietnam to also see his wife’s family and relatives and can stay with them. The Tribunal finds that this lends weight to a contention that the sponsor lacks genuine compelling circumstances of hardship regarding a return to Vietnam should his wife’s visa status require it.

45. The Tribunal has also carefully considered the sponsor’s financial and economic circumstances noting that he lives in, he stated, government housing and receives a Centrelink benefit. The Tribunal has carefully considered the fact that the economic circumstances in Vietnam and the cost of living suggest that there would not necessarily be compelling circumstances in this category that would warrant a waiver of these requirements. The Tribunal notes that the cost of living in Vietnam is many times cheaper than in Australia and finds that this is very relevant to a consideration of this issue. In particular the Tribunal notes the strong family network that both the applicant and the sponsor have in Vietnam, that it is their country of origin, that his wife has spent her life in until recently, and that despite the fact that the sponsor first came to Australia as a refugee, he regularly returns to spend significant amounts of time visiting and staying with family and that he has his parents’ house in Vietnam to return to on a more long-term basis. The Tribunal is mindful of the significant multigenerational family resources at the disposal of both the applicant and the sponsor that can be utilised to settle themselves in Vietnam with a reasonable lifestyle expectation despite having lost some Australian government benefits upon their leaving this country. The Tribunal finds that such social and cultural advantages are also evident in the applicant’s and in the sponsor’s families and that such advantages can be leveraged to develop a good quality life back in Vietnam. The Tribunal finds that this lends weight to the contention that the sponsor lacks genuine compelling circumstances of hardship regarding a return to Vietnam should his wife’s visa status require it.

1. The Tribunal has also considered very carefully the health of the sponsor and whether that would act as a compelling circumstance to warrant that a return to Vietnam should be considered as a potential waiver of the requirements. The Tribunal has considered that the sponsor has a series of orthopaedic problems that do require some care however the Tribunal finds that this care, at this order of magnitude and complexity, can be catered for within the healthcare system in Vietnam. The sponsor did not provide any specific evidence as to any complex treatment mechanisms here in Australia noting his reference to the fact that he needs massaging for his neck and shoulders and needs to take some care with his knee. The Tribunal finds that such treatment is available in Vietnam, and should it be necessary for him to relocate to Vietnam that this would not feature as a compelling circumstance. The Tribunal finds that this lends weight to a contention that the sponsor lacks genuine compelling circumstances of hardship regarding a return to Vietnam should his wife’s status require it. This matter is dealt with in more detail below.

2. The Tribunal has also considered the sponsor’s employment and notes that he does not work and has not worked since 2018 and therefore does not have compelling reasons to remain here in Australia for his employment. The Tribunal also finds that this lends weight to the contention that the sponsor lacks genuine compelling circumstances regarding a return to Vietnam should his wife’s status require it.

3. The Tribunal has also considered that the sponsor has a son here in Australia who is now 36 years old and a single man and notes that his son could travel to Vietnam on a regular basis should they wish to make that a feature of their ongoing relationship and that this also does not constitute a compelling circumstance. As stated, the Tribunal notes the extensive family that the sponsor has back in his home country. The Tribunal finds that this lends weight to a contention that the sponsor lacks genuine compelling circumstances regarding a return to Vietnam should his wife’s visa status require it.

4. The Tribunal notes also that the sponsor has perfect command of the Vietnamese language and is very familiar with Vietnamese culture and social mores and therefore is very familiar with life in Vietnam and it is not anticipated that he would have any difficulty adjusting to such a new life with his wife.

5. The Tribunal has considered these factors very carefully and finds that the sponsor does have an ability to return to Vietnam should that be necessary to be with his wife and that he could rekindle his connections to his home country and live with his wife and that therefore the sponsor has an ability to live in Vietnam with his wife and finds that this does not constitute a compelling circumstance to waive the requirement of regulation 1.20J(1)(a).

   Genuine long-term relationship

6. The Tribunal has considered very carefully the statements and evidence provided by the applicant that she is in a genuine spousal relationship with the sponsor and that this should be considered as a compelling circumstance why she should not be placed in a position where she must return to her home country. The Tribunal makes no specific findings as to the genuineness or otherwise of this relationship noting that the grounds for refusal of this application was specifically based on a finding as to whether the sponsor has had 2 previous sponsorships in accordance with regulation 1.02J(1)(a) and, if so, if there were any compelling circumstances affecting the sponsor to waive that requirement.

7. The Tribunal also notes that the applicant has provided evidence of a marriage certificate in her application and has provided some evidence addressing the criteria of the key aspects of a relationship under regulation 1.15A, addressing that regulation that has been subsequently provided, and has asserted at the hearing that they are in a relationship. The Tribunal accepts the evidence that was provided that the applicant may be in a genuine relationship with the sponsor but finds that this relationship will not be placed in difficulties should the applicant need to relocate back to her home country as the sponsor can also relocate as an Australian citizen to Vietnam and be with family and friends, and that this would also not create any hardship for the sponsor due to his established and routinely called upon family networks in Vietnam as evidenced by his visits and stays there over the years.

8. As noted, the Tribunal finds that the applicant and the sponsor can continue their marital relationship together in Vietnam and that this does not constitute a genuine compelling circumstance.

9. The Tribunal also notes that the applicant has family back in her home country and that the sponsor as stated also has family in Vietnam and has an opportunity to reacquaint himself with his life back in his home country and to live back in his home country with the support of extended family.

10. The Tribunal has carefully considered the circumstances of the applicant and in particular any compelling circumstances for consideration and finds that the applicant and the sponsor can continue their married relationship in Vietnam should the visa status of the applicant require it and therefore does not constitute a compelling circumstance that warrants the waiver of regulation 1.20J(1)(a).

    Health of sponsor

11. The Tribunal notes the evidence provided that the sponsor has a stated mobility issue created by a meniscus tear in one knee. The Tribunal accepts that the sponsor may have such an orthopaedic problem and that he might have shoulder and neck issues that require some remedial ongoing care but nevertheless does not accept such a health issue is of a severe enough nature to require special assistance such as surgical intervention, that could not be provided to him via normal healthcare channels in Vietnam. The Tribunal also notes that such health issues have active and sophisticated treatment options that can either control the extent of the orthopaedic difficulty or alternatively provide readily available operable or treatment solution, and that this would be available in Vietnam.

12. After careful consideration of this matter the Tribunal finds that the health issues being experienced by the sponsor are not necessarily of a high magnitude of complexity and can be addressed effectively via the Vietnamese health system and with the assistance of his wife which he says is the vital component needed for his good health. The sponsor’s health therefore does not constitute a genuine compelling circumstance to warrant the waiver of regulation 1.20J(1)(a).

    CONCLUSION

13. The Tribunal has considered the circumstances of the parties very carefully as noted above and finds that they do not reveal compelling reasons or circumstances for not waiving the requirements of regulation 1.20J(1)(a) and while it accepts that the parties may be in a long-standing spousal relationship it finds that very little if any hardship attaches to these aspects as the parties can relocate to Vietnam if the applicant is required to leave Australia and lead a happy life together.

14. Based on the above the Tribunal is not satisfied the applicant meets the requirements of clause 820.221(4) of the Migration Regulations and is also not satisfied that there are compelling reasons for not applying regulation 1.20J(1)(a).

15. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary)(Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa.

    Stephen Witts
    Member