Nguyen (Migration)

[2023] AATA 3330

Nguyen (Migration) [2023] AATA 3330 (24 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Thanh Tam Nguyen

REPRESENTATIVE:  Mr Madhukar Naiker

CASE NUMBER:  1829826

HOME AFFAIRS REFERENCE(S):          BCC2017/3338202

MEMBER:Edward Howard

DATE:24 August 2023

PLACE OF DECISION:  Brisbane

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)(c) of Schedule 2 to the Regulations

Statement made on 24 August 2023 at 10:13am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820– sponsor was prohibited from sponsoring a further party – an Australian citizen daughter – validly married –– genuine and continuing relationship – any separation of the family unit would have a devastating impact on the sponsor – highly compelling circumstances affecting the sponsor – decision under review remitted       

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, r 1.20, Schedule 2, cl 820.211

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 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 13 September 2017 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 (Cth) (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)(c).

4. The Tribunal has considered all of the evidence, which includes extensive documentary evidence provided to the Tribunal and is satisfied that a decision can be made without the need for a hearing, 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.

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

   BACKGROUND

6. The review applicant is Ms Thi Thanh Tam Nguyen, age 32 years, a citizen of Vietnam and the sponsor is Mr Thanh Hung Dao, aged 40 years, an Australian citizen.

7. The parties claim to have committed to a relationship in February 2017 and were married on 29 May 2023. Their daughter was born on 2 October 2017.

8. An application for a Partner (Temporary) (Class UK) (Subclass 820) visa was lodged on 13 September 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. This application was the third partner application involving the sponsor. The delegate determined that the sponsor had been granted two prior relevant permissions as the spouse, de facto partner or prospective spouse of another person and therefore was prohibited by Reg 1.20J(1)(a) from sponsoring a further party.

10. However, pursuant to Reg 1.20J(2), the Minister may approve the sponsorship if satisfied that there are compelling circumstances affecting the sponsor.

11. The delegate’s decision of 2 October 2018 concluded that the review applicant failed to satisfy subclause 820.211(2)(c) on the basis that no such compelling circumstances existed as contemplated by Reg 1.20J(2).

12. Having considered all the evidence, the Tribunal finds that the sponsor has been granted two prior relevant permissions as the spouse, de facto partner or prospective spouse of other persons and therefore fails to satisfy subclause 820.211(2)(c).

13. The issue in this review is therefore whether subclause 820.211(2)(c) can be satisfied by establishing compelling circumstances affecting the sponsor pursuant to Reg 1.20J(2).

    Compelling Circumstances

14. Whilst there is no definition for what circumstances are considered ‘compelling’, they 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].

15. In Waensila v MIBP [2016] FCAFC 32, when considering whether circumstances constituted ‘compelling reasons’ for not applying the Schedule 3 criteria, it was determined that these circumstances can arise at any time, including after the visa application is made.

16. The parties have provided extensive evidence to the Tribunal relating to the facts and circumstances which they submit constitute compelling circumstances affecting the sponsor. The Tribunal notes the following matters in this regard:

    Care of their Child/ Serious Health Complications

    (i)the sponsor and the review applicant have a daughter who was born in Brisbane on 2 October 2017 and are jointly the carers of their child, who is an Australian citizen;

    (ii)their daughter was born with a hearing impairment, namely a “unilateral left-sided hearing impairment secondary to left auditory neuropathy spectrum disorder, as a result of an aplastic to severely hypoplastic cochlear nerve”;

    (iii)the child’s condition requires ongoing medical treatment including visits to her doctors, medical aids and audiology monitoring and as a result, has high needs which are supported by the sponsor and the review applicant; and

    (iv)the sponsor and the review applicant, as would be expected, have developed a very strong bond with their daughter and are actively involved in the care and support of all aspects of her life including her medical treatment, which requires significant effort by both parents;

    Long-Standing Relationship of the Parties

    (i)the parties have been in a committed relationship since early 2017 and were married on 29 May 2017;

    (ii)the parties have therefore been in a relationship for more than 6 ½ years and their daughter will soon turn six years old; and

    (iii)the evidence from the parties and from family members confirms that the parties have a close relationship, and the sponsor has devoted himself to caring for and supporting his wife and daughter, in a financial sense as well as practically, emotionally and psychologically.

    Emotional and Psychological Impacts on Sponsor

    (i)If the sponsor was to relocate his family to Vietnam, it is clear that the child would not have full access to all the benefits of an Australian child that would have been granted her if the family were living in Australia. Further, and most significantly in this case, the child would not have full access to the benefits of medical treatment received in Australia in relation to her severe hearing impairment;

    (ii)In effect, the sponsor would be denying his daughter the best possible opportunity of medical treatment and therefore of the potential benefits that might flow and offer the chance of an increased standard of living;

    (iii)Given the evidence concerning the close bond between the father and his child, it is likely that any decision by the sponsor to relocate his family to Vietnam, would cause him significant psychological and emotional distress, with the knowledge that he is denying his daughter the best possible medical treatment and disability support; and

    (iv)Likewise, if the sponsor and his daughter remained in Australia without the review applicant, the sponsor would be denying his daughter the crucial elements of the mother/child relationship, thereby negatively impacting the emotional and psychological development of the child; and

    (v)Additionally, if separated from his wife, the sponsor would be denied her love, care and support. Again, any such decision by the sponsor would obviously cause him significant psychological and emotional distress.

    Financial Support provided by the Sponsor

    (i)The sponsor is employed full-time and is the sole financial provider to his family;

    (ii)Given the nature of their child’s special needs, the review applicant is devoted full-time to the care of their daughter;

    (iii)The financial dependence upon the sponsor relates not only to the ongoing and regular expenses of daily living including rent, food, transport and utilities, but also includes the costs associated with the medical care and treatment of the child;

    (iv)As a result, the household is entirely dependent on the income earned by the sponsor; and

    (v)There would be a financial penalty on the entire family as the sponsor would be required to either stop working or reduce his hours in order to care for the child or alternatively, employee a carer to assist with the care of the child at some considerable expense. This would impact the family financially by reducing the overall funds available to all of them.

17. In relation to the longstanding relationship, the Tribunal notes in particular the Migration Regulations (Amendment) 1996 NO. 75 and in particular to the Explanatory Statement.  Clause 10 of Schedule 2 gives examples of circumstances in which a waiver may be justified. Clause 10.1 states that the reasons must be of a “strongly compassionate nature” and refers to such reasons as including those ‘where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer’.

18. The Tribunal further takes note of the fact that Australia is a signatory to the Convention on the Rights of the Child, which recognises the family as the fundamental group of society and the natural environment for the growth and well-being of all members, particularly children.

19. Given the above matters, the Tribunal is satisfied that any separation of the family unit would have a devastating impact on the sponsor - emotionally, personally and psychologically.

20. Having considered all the evidence, the Tribunal finds that there are highly compelling circumstances affecting the sponsor that justify the approval of the sponsorship pursuant to Reg 1.20J(2). Accordingly, the applicant meets cl.820.211(2)(c).

21. 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

22. 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)(c) of Schedule 2 to the Regulations

    Edward Howard
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).