Nguyen (Migration)

Nguyen (Migration) [2022] AATA 4843 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Ngoc Hanh Nguyen
Mr Hoang Nghia Nguyen
REPRESENTATIVE:  Mr Bao Nhu Van Truong (MARN: 1677990)
CASE NUMBER:  1828177
HOME AFFAIRS REFERENCE(S):          BCC2016/2695605
MEMBER:Anne Grant
DATE:9 December 2022
PLACE OF DECISION:  Melbourne
DECISION:In respect of the first named applicant, the Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with directions that;
The first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.

In respect of the second named applicant, the Tribunal affirms the decision under review.

Statement made on 09 December 2022 at 11:49am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – joint household financial management – international family visits – mutual emotional support – member of the family unit – secondary applicant is employed – dependent at the time of application – referral for Ministerial Intervention – for first applicant decision under review remitted – for second named applicant decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.311, 820.321; rr 1.05, 1.12, 1.15
CASES
He v MIBP [2017] FCAFC 206
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 15 August 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 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because they were not satisfied that the visa applicant was the spouse of the sponsor at the time of application for the visa.
On 15 November 2022, the visa applicants, the sponsor and their representative attended a hearing in person at the Melbourne offices of the Tribunal. The hearing was assisted by an interpreter in the Vietnamese and English languages.
The second visa applicant had not provided a statutory declaration. As he was present at the hearing, I took the opportunity to discuss with him his observations of the various aspects of the relationship between his mother and the sponsor and his personal experience as a member of their household. I found him to be forthright and direct. I spoke to him before speaking with the primary visa applicant and sponsor, because I had not had the benefit of a written statement from him, and also in case I needed to be able to put aspects of his evidence to the primary applicant and sponsor after I had spoken to him. As events and evidence transpired, I did not have any contradictory matters to put to the primary applicant and the sponsor arising from the second applicant’s evidence.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
Subsequent to the hearing, an issue arose with respect to the second applicant’s dependence on the primary applicant given the passage of several years since the application was lodged and his evidence at hearing that he was working full time. On 23 November 2022 I wrote to the applicants requesting submissions about this issue and providing them with extracts of the relevant legislation.
On 5 December 2022, I received a submission which, amongst other things, acknowledged that the second applicant might not satisfy the legislative requirements as a dependent of his mother and requesting that I consider referring his case to the minister for possible intervention. Accompanying the submission were medical records and letters supporting the visa applicant and her husband, all of which suggest that they rely on the second applicant for day to day support. Those matters are further discussed below.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with respect to the primary applicant, and in the case of the second applicant the decision under review should be affirmed. For the reasons discussed below, I have also decided to make a recommendation that the second applicant’s case be considered for ministerial intervention.
Consideration of claims and evidence
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen (as confirmed by the Departmental file at folio 130).
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The issue in this matter is therefore whether the primary applicant and sponsor are spouses after considering all of the circumstances of their relationship as described above.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Evidence has been provided that the primary applicant and sponsor married in a ceremony on 25 June 2016 in Victoria, Australia. There is no information before me that suggests that the marriage was not a valid marriage or which causes me to doubt the validity of the marriage. Its validity was accepted by the delegate. On the evidence, I find that the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
A list of the supporting evidence provided by the parties in this review is attached to this statement and is referred to where relevant below. I have considered the evidence provided to the Department, the contents of the Department’s decision record, the additional evidence provided to the tribunal (which is extensive), and the oral evidence given by the visa applicants and the sponsor at the hearing.
The Financial Aspects of the Relationship
I accept that the sponsor owns his home in St Albans, and that the home is mortgaged. I accept that the visa applicant moved in with him in 2016 and that shortly afterwards, the second applicant also moved into the family home.
Documentary evidence provided by the applicant and sponsor reflects that the parties have a joint account and that the sponsor’s income, when he was still working, was paid into that account and that the account was used for ordinary everyday expenses, as well as to meet the mortgage expense. Since he has retired, the couple has been living on their savings, and have up till now been able to meet the mortgage requirements and the family’s financial needs. The sponsor said that they have around $3000 left and he has applied for a Centrelink pension. The primary applicant described how she had given the last of her savings ($7,000) to her husband when he retired to assist with their living expenses. Before that, he had told her that he did not need her to contribute. The second applicant also confirmed that he had offered to contribute to the family expenses since he started work, but the sponsor had told him that it was not necessary. I accept the second applicant’s evidence he contributes by buying some groceries for the family as needed by way of making some contribution to the household’s financial needs. I accept that he moved in with them about a week after his mother moved in with the sponsor, back in 2016. The second applicant described the sponsor as having willingly taken on the financial responsibility of providing for he and his mother, and that he is a kind and caring man who looks after them all. He referred to him in his evidence as ‘Father Pham’.
The visa applicant confirmed that she owns a property in Vietnam in which her son lives with his wife. She had not really discussed selling that property to contribute to the family expenses in Australia, because her husband had said it was not necessary. This was confirmed by the sponsor at hearing. The sponsor added that he believes that he will continue to be in a position to support the visa applicants and himself and expressed a desire to do so.
Evidence has also been provided of regular transfers to the visa applicant’s son in Vietnam. The parties openly discussed their finances with me, and based on the documents and evidence they have provided, I am satisfied that they share and together manage all income and resources that either of them receive in the relationship.
I am satisfied, based on their evidence and the documents that have been provided, that the family work together to pool their resources as necessary and that they will continue to do so because they operate as a family unit. Consideration of the financial aspects of the relationship suggests that the primary applicant and sponsor are in a genuine and continuing relationship, both at the time of application and at the time of decision.
In the evidence submitted after the hearing, the parties acknowledge that the second applicant may not satisfy the definition of a dependent because of his age. He does continue to live with them and the sponsor continues to provids financially for the costs of accommodation and bills of the household, including the second applicant. The second applicant is nonetheless employed and capable of meeting his basic needs for accommodation, food and general necessities himself. Based on the evidence the parties gave at hearing and in the response provided, I am satisfied that the sponsor continues to do what he can to relieve the second applicant of living expenses so that he can build a life and savings for his future. While the second applicant contributes to the financial pooling within the household by buying groceries when needed, he continues to be supported by his mother and her husband.
Social Aspects of the Relationship
The primary visa applicant and sponsor have provided a large amount of photographic evidence; including pictures of them together at social events, parties, on holiday in Vietnam, at their wedding and also in Sydney and Perth. They have married, registered that marriage, and live together as husband and wife. The evidence suggests that important family members attended the wedding from both sides of the union.
At hearing they each confirmed that everyone in their lives considers them to be in a loving and committed relationship, including their respective children, their own parents and their brothers and or sisters (where they are still living). In his evidence, the second applicant also confirmed that everyone in his family recognises and supports the relationship. He noted that the sponsor loves his sister’s two children and they love him; that they call him grandfather and love to visit their grandparents. The second applicant said that he has met the sponsor’s children and though they don’t have much opportunity to socialise (as they live in WA), they were open and welcoming to him and his sister.
The primary applicant and sponsor each confirmed in their oral statements and also in their written statements that the sponsor loves and considers the primary applicant’s children and grandchildren as if they were his own. The primary applicant noted that the sponsor wants to buy a bigger car so the children can visit more often and they can take them around when they do. I discussed with the primary applicant that her daughter’s statement as submitted to the Department suggested that she initially had some concerns about the relationship. The primary applicant agreed that at first her daughter did have reservations, because she didn’t want her mother to get hurt again. She said that once they discussed it and she explained that she and the sponsor were in love and really committed, her daughter accepted and has since then supported the relationship.
The sponsor’s daughter has two children and they live in Perth. The visa applicant gave evidence that she considers them to be her grandchildren and although the children don’t speak Vietnamese, they call her ‘grandmother’. The parties referred to a trip to Perth where the visa applicant had the opportunity to better come to know the sponsor’s daughter, her husband, their children and also his parents, who were visiting from the USA. This opportunity was described as joyful.
The second applicant gave evidence that everyone in his family and his mother’s family acknowledge and value his mother’s marriage to the sponsor. His aunt in Vietnam often chats to the sponsor when his mother is on a phone call.
The primary applicant and sponsor have travelled to Vietnam twice since they married (pre covid) and the evidence reflects that they spent time visiting family members on both sides whilst in Vietnam.
Consideration of the social aspects of the relationship and the volume of photographs, statements and evidence provided suggests that the primary applicant and the sponsor are in a genuine and continuing relationship, both at the time of application and at the time of decision.
Nature of the Household
The evidence given by the applicants and the sponsor (including in their written statements) is that traditionally, the sponsor worked and the primary applicant has taken care of the day to day household tasks. They both enjoy caring for their grandchildren. The sponsor has taken care of the garden and has taken responsibility for providing for the financial aspects of the relationship and household expenses, even to the point of rebuffing the second applicant’s offer to contribute to those costs. I accept that the second applicant would be prepared to contribute to the family expenses if necessary, as might occur if the sponsor’s Centrelink application remains undetermined after his savings are exhausted. The primary applicant’s contributions to the household expenses have historically been limited to her savings contribution; but she also expressed a willingness to consider selling the property in Vietnam if it became necessary to meeting the family household needs.
Consideration of the evidence relating to the nature of the household strongly supports a finding that the visa applicants and sponsor are living together in their home as a family (and have been since 2016) and that all are contributing to the household in different ways. Consideration of this aspect of the relationship indicates that the primary applicant and sponsor are in a genuine and continuing relationship, live together and not separately and apart, both at the time of application and time of decision.
Nature of the Parties Commitment to Each Other
I accept that the parties met in 2015 at a temple in Melbourne while the visa applicant was visiting her daughter in Australia. I accept that they remained in touch when she returned to Vietnam when her father died. I accept that their relationship continued to develop and that the sponsor financially supported the visa applicant when she was in Vietnam. I accept that when she returned to Australia in 2016, they both committed to a relationship together, moved in together and later married.
In their written statements and in their evidence the primary applicant and the sponsor repeatedly expressed love for each other. Each of them has had periods of being in hospital over recent years and they each described how their spouse loved and cared for them when they were unwell or undergoing stress related to potentially devastating health conditions. The second applicant also described how the sponsor stayed by his mother’s side when she was in hospital having surgery after they found a lump on her neck in 2020. The primary applicant gave extensive evidence about the sponsor’s stroke in 2019, his recovery, and her observations of him having ‘seizures’ or ‘spasms’ in his sleep and his subsequent hospitalisation on suspicion of a brain tumour in 2021. They each described their joy on his being advised that it was benign. The second applicant repeatedly described ‘father Pham’ as a caring man who has taken care of his mother, and said that he is supportive of their marriage and love for each other.
Both the primary applicant and sponsor described how they hope and plan to spend the rest of their lives together, and that they love and care for their spouse and their family. They both became emotional at different points during the hearing as they described their worry for the other, and their desire to continue their life together in Australia.
I have also taken into account the lengthy period of time between application and this decision and the extensive personal evidence and information submitted by the applicants.
I have had the benefit of discussing the various aspects of the relationship with the parties and clarifying the various aspects of the relationship in light of the vast amount of evidence provided. Having considered the factors in regulation 1.15A, and having regard to my discussion of the evidence and my findings on each of the various aspects above, I am satisfied and find that the primary applicant and sponsor were spouses at the time of application; that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, their relationship is genuine and continuing, and they live together and not separately and apart on a permanent basis. I am satisfied that the primary applicant and sponsor are spouses at both the time of application and at the time of decision.
For these reasons I am satisfied that the primary applicant meets the requirements for a spouse relationship within the meaning of s 5F(2) at the time the visa application was made and at the time of this decision.
Therefore, the primary applicant meets cl 820.211(2)(a).
I have considered the application and sponsorship forms. I am satisfied that the sponsor had turned 18 years at the time of application. I am satisfied that the applicant is sponsored by the applicant spouse who has turned 18, and therefore the applicant meets the requirements of cl.820.211(2)(c) at the time of application.

There is no evidence before me that the applicant was not the holder of a substantive visa at the time of application, and therefore the requirements of cl.820.211(2)(d) do not apply. She held a visitor visa at that time.
As the primary applicant meets the requirements of cl.820.211(2)(a),(c) and (d), I am satisfied the applicant satisfies the criteria in cl.820.211(2) at the time of application.
I am satisfied the applicant continues to meet the requirements of cl.820.211(2), and therefore satisfies cl.820.221 at the time of decision.
The second applicant
I am satisfied, based on the evidence before me as discussed above, that the second applicant is the son of the primary applicant and a member of the family unit of the primary applicant. At the time of application for the visa, the second applicant was a student and aged 21. He was living with the applicant and sponsor, attending university and working part time. He was financially supported by his mother and her husband. The evidence is that his education fees were met by his mother from her savings. Bearing in mind the provisions of regulation 1.12 below I conclude, therefore, that the second applicant satisfied cl 820.311(a) at the time of application.
The second applicant was born on 10 April 1995. As at the date of decision, the second applicant is aged 27, and working in employment at Crown Casino. This issue of the second applicant’s dependence on the primary applicant arose in reviewing the evidence given at hearing, and was notified to the applicants on 23 November 2022. As noted above, the applicants have conceded that the second applicant may not satisfy the criteria to be a dependent of the primary applicant (or her spouse) at the time of making this decision.
Reference is also made to regulations 1.12 and 1.05A, which provide as follows:
1.12 Member of the family unit
Scope
(1) This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.
General rule
(2) A person is a member of the family unit of another person (the family head) if the person:
                 (a) is a spouse or de facto partner of the family head; or
                 (b) is a child or step‑child of the family head or of a spouse or de facto partner of the family head (other than a child or step‑child who is engaged to be married or has a spouse or de facto partner) and:
(i) has not turned 18; or
  (ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
                (c) is a dependent child of a person who meets the conditions in paragraph (b).
This subregulation has effect subject to the later subregulations of this regulation.
1.05A Dependent
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
(2) A person (the first person) is dependent on another person for the purposes of an application for:
(d) a protection visa; or
(ea) a Refugee and Humanitarian (Class XB) visa; or
(i) a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
In response to my alerting the applicants to this issue and requesting information and evidence about his study and employment history, how long he has been working, the nature of that employment and his reliance on his mother (and her husband) for financial support to meet his basic needs for food, clothing and shelter and any other needs such as the cost of education, I received the following submission and documents from the applicants and sponsor:
In response to my referring the applicants to the issue of the second applicant’s dependence after the hearing, the applicants have provided the following additional material:
·Statutory declaration of Australian Citizen and visa sponsor Mr Trung Ly Pham dated 5 December 2022 in which he states:
1. On 23 November 2022, my family received the Tribunal's request for more
information regarding our son, Hoang Nghia Nguyen's circumstances. We
are explained that Nghia might not be eligible for the visa he applied for as
he is no longer dependent child or a member of the family unit of his
mother. We are explained about the relevant law, and we understand that
whether or not such law is reasonable, it will be upheld.
2. Nghia is a good child. When we applied for Hanh and Nghia's visa in August
2016, Nghia was a full time student. Had his temporary visa was granted,
he would be eligible for the grant of his permanent visa as long as my wife's
application for PR is successful, even if he stopped schooling and started
working after the grant of his TR. We were advised that this law changed in
November 2016, a few months after we had lodged the application.
Unfortunately, this was not the case.
3. In 2017, Nghia was studying Bachelor of Hospitality Management at
William Angliss when he undertook work placement course at Crown
Casino. Due to his good performance, Nghia received a job offer at Crown
Casino. Nghia believed that the opportunity to learn practical skills at a
work place is more useful than theory learning at school, he thought that
he could always,re-enrol to study when the job offer would not always be
available. Nghia ended up working for Crown Casino from 2017 to first half year
2018.
4. 1n mid 2018, Nghia was offered another job at Star Casino (Victorian office).
Nghia told me that it is a better position where he could learn more. For the
next 4 years Nghia worked for Star Casino before applying for the current
position at Crown Casino and got in. Nghia explained to me that at the latest
position, he could utilise a lot more of his previous studying such as
customer services, client management, hotels and restaurant
management. Nghia is a smart kid, who is hard working and full of
potential. If he is allowed to stay in Australia, I have no doubt that he would be a useful member of our Australian society.
5. If Nghia has to return to Vietnam, it is the opposite of returning to his home
country. Nghia came to Australia when he was 19 and he has spent the last
7 years pursuing his visa and learning to be an Australian. If he is to come
back to Vietnam, all his skills are likely to be wasted as the gambling
industry has not been legalised in Vietnam.
6. Nghia is a well-behaved child. He has no problems with gambling, smoking,
alcohol, or drug. He definitely has no problems with the police before. To
our family, he has been our connection with Australia. Although I have been
in Australia for more than 40 years, my English is barely functioning for
common communication as I spent most of my time working in factories.
Nghia has to help me with all the paperwork, Internet and information
technology, or working with government authorities. For example, since
the beginning of this year, Nghia has dealt on my behalf with WorkCover;
being my contact person working with the hospital when I was in
admission, and he helped me filling all Centrelink forms for my pension.
7. I am now 69 year old and my wife is 54. For the last few years, I was
hospitalised due to heart failure in 2019, hospitalised and diagnosed with
brain tumour in early this year. My wife went through thyroid cancer in
2018 and undertook another spleen surgery in 2019. At this age, our health
will not get better overtime. Rather, we are facing the days of health
declining to come when we get older.
8. My wife has another daughter in Australia but she is married and living
with her husband. She is busy with her 2 children and she could barely offer
us with any help. I have another daughter from the previous marriage but
she lives even further away in Perth. Nghia is the only child that has been
living with us.
9. My wife and I has been dreaming about one day when Nghia would start
his own family right under the same roof with us. We would be a happy 3
generation family where my wife and I would be the happiest grandparents
taking care of our Nghia's children. As we are living in a 3 bed-room house,
my wife and I.would use one room, another one for Nghia and his wife and
the third one for his child or children. Our dream would be impossible if
Nghia has to leave Australia.
10. We concede that our son does not meet the requirements of the Migration
Law and we understand that the Tribunal has to make its decision in
accordance with the law. However, we are advised that once Nghia's
application for review has become unsuccessful, he could seek the
intervention of the Minister for immigration. We truly hope to receive the
Member's support on that application, particularly we hope that the
Member would recommend Nghia's application to the Minister for his
consideration.
11. Our family sincerely thank you for your time and consideration.
·Letter from Dr Hai Dinh Phan which states that the sponsor “is very unwell with multiple severe medical conditions including heart failure, AF and seizures (secondary to brain tumour. Glioma) and had many hospital admissions. He need ongoing support and care from his step son Nghia Hoang Nguyen to assists him with his medical management.”
·Letter from Dr Hai Dinh Phan which states that the visa applicant has multiple medical conditions including thyroid cancer and depression. She needs ongoing support to manage her condition and emotional support.
·Mr Phan’s medical history to support Dr Phan’s description of his conditions.
On the information and evidence before me, including his identity documents, I am satisfied that the second applicant is aged 27. The evidence before me establishes and I find that the second applicant is not incapacitated for work due to the total or partial loss of his bodily or mental functions. He is not incapacitated for work at all. I find that the second applicant is therefore not a dependent of the primary applicant (or the sponsor) at the time of this decision as described in the legislation and regulations. He does not satisfy cl 820.321 of Schedule 2 to the Regulation.
Referral for consideration of Ministerial Intervention in respect of the second applicant
I have considered the information provided by the applicants and sponsor with regard to the primary applicant and sponsor’s current medical conditions and their reliance on the second applicant for practical and emotional support. I have also considered the fact that delay caused by factors outside the applicants’ control have contributed to a situation where the second applicant has ‘grown out of dependence’ in the period whilst the parties waited for the original decision and then this review to be finalised. I have also observed the applicants and sponsor in person and consider them to be a genuine and loving family unit. I have found, however, that the second applicant no longer satisfies the definition of being a dependent of the primary applicant (or her husband). Nonetheless, I am satisfied that the second applicant is emotionally reliant on his mother and step father (and they on him) and that he contributes to the household as well as receiving support from them in the form of receiving accommodation and food.
Having regard to the Minister’s Guidelines on Ministerial Powers as well as the submissions and evidence before me, I consider that the circumstances of this case warrant further investigation by the Department, with a view to then referring the case to the Minister under s.351 of the Act. I consider that the issues in this case may fall within unique and exceptional circumstances as described in s.4 of the Guidelines (emphasis added):
4. Unique or exceptional circumstances
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·             strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
·             compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
·             exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia
·             circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case
·             the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control
·             a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country
·             the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.
The second applicant has no other visa pathway available to him at this time. The information before me in this case reflects that the second applicant has always complied with the conditions of any and all visas and has not provided false or misleading information to the Department or any other relevant authority. The information suggests that he has no criminal history in Australia or in Vietnam.
I consider that there are unique or exceptional circumstances in this case. I accept the submissions that the second applicant is a close member of the family unit which includes an Australian citizen and that his mother and step-father both rely on him emotionally and to assist with care and day to day tasks as well because he is a loved and contributing member of the family. The medical reports support this submission, as does the sponsor’s statutory declaration. I accept that if the second applicant had to return to Vietnam, this would potentially cause serious emotional harm to the family unit, which includes an Australian citizen. It is therefore in the public interest that the second applicant be granted a visa to enable him to stay with his mother and step-father as they age.
Having regard to the guidelines, the evidence suggests also that there are some compassionate circumstances surrounding the applicant’s age. These circumstances are, somewhat unusually, that the time taken to determine the review (favourably in his mother’s case) has meant that he can no longer be considered a dependent of his mother, where I have found that he was in fact dependent on her at the time of application. He has all of his young adult life in Australia, and will lose the benefit of his work and study experience if he returns to Vietnam where his skills in managing or working in casinos will have no legitimate market. I acknowledge that these circumstances may not (on the information I currently have) amount to causing the applicant serious, ongoing and irreversible harm, but they may mean that he experiences real hardship in trying to readjust to life in Vietnam alone without his family.
It is also arguable that the outcome of this review (given that the passage of time which led to his no longer satisfying the visa criteria as a dependent was due to factors outside his control) is such that the application of the relevant legislation leads to unfair or unreasonable results in the particular circumstances of this case. The second applicant has been in Australia during his formative young adult life. He continues to live with his mother and step father, and is supported by them even though he is in full time employment. Had the review been concluded earlier, it seems likely that he would have still been dependent on his mother and her husband. The timing of the determination of this review was a matter completely outside his control. Further, as noted above, the evidence submitted suggests that his mother and his stepfather rely on him for practical and emotional day to day support.
A referral for consideration for Ministerial intervention is not a binding recommendation; and is ordinarily made cautiously by the Tribunal, and if satisfied that sufficient relevant aspects of the guidelines are open for consideration. As noted above, I consider that the circumstances of this case in regards the second applicant are exceptional and do warrant consideration of referral for consideration to the Minister.
Given my findings above, the appropriate course is to remit the primary visa applicant’s application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa, and to affirm the decision to refuse the visa to the second applicant.
In addition, and in all the circumstances of this case, I recommend that the second applicant’s case be referred to the Minister for consideration of intervention under section 351 of the Act.
decision
In respect of the first named applicant, the Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with directions that;
The first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
· cl 820.211(2) of Schedule 2 to the Regulations; and
· cl 820.221 of Schedule 2 to the Regulations.
In respect of the second named applicant, the Tribunal affirms the decision under review.
Anne Grant
Member

Attachment A: Documents submitted and considered:
The visa application was lodged on 15 August 2016. At the time of application, the visa applicant and sponsor provided the following documents to the Department in support of their application:
·Statement of Ms Ngoc Hanh Nguyen (visa applicant), undated. In this statement, in summary, The primary applicant states that she met the sponsor at a temple in Victoria while she was visiting her son and daughter around August 2015. Both parties have experienced divorce, so they understand each other. When the visa applicant returned to Vietnam on 21 October 2015, the visa applicant and the sponsor kept in touch by phone. The sponsor provided the visa applicant comfort as her father had passed away. On 15 April 2016 the visa applicant travelled to Australia to visit her children and it was then the couple decided to get married.
The sponsor works full time, while the visa applicant does the cleaning, tidying, meal preparations, maintains the garden, looks after their home, and occasionally looks after her grandchild. Both parties are known to their families as they made two trips to Vietnam in April 2017 and February 2018, to visit the sponsor’s parents’ family and the visa applicant’s son. They also are known to friends as they have made a trip to Darwin in July 2018 to visit friends, and they socialise with friends in Victoria;

·Witness statutory declaration statement from Thi Quynh Nhu Nguyen (visa applicant’s daughter), dated 6 July 2016, attesting to the couple’s relationship;
·Witness statutory declaration statement from Trung Nam Pham (sponsor’s brother), dated 6 July 2016, attesting to the couple’s relationship;
·Visa applicant’s birth certificate extract issued by the People’s Committee of Tan Binh district, Socialist Republic of Vietnam, showing that she was born on 26 May 1968 and is a native Vietnamese;
·The visa applicant’s various identity documents, including Vietnamese identity card and Vietnamese passport;
·Family household register showing the visa applicant was born on 26 May 1968 in Tay Ninh, Vietnam;
·Criminal record issued by the Ministry of Justice, National Criminal Record Center, Socialist Republic of Vietnam, issued on 23 August 2017 confirming the visa applicant has no criminal records;
·National police certificate issued by the Australian Federal Police, dated 13 August 2018 confirming there are no disclosable court outcomes against the visa applicant;
·Marriage status certificate issued by the People’s Committee of Tan Binh district, Socialist Republic of Vietnam, confirming the visa applicant was not married, dated 25 November 2015;
·Decorative Australian marriage certificate solemnised between the visa applicant and the sponsor on 25 June 2016;
·Birth certificate of Hoang Nghia Nguyen (secondary visa applicant) showing he was born on 10 April 1995 in Tan Binh, Vietnam;
·Various identity documents of the secondary visa applicant including Vietnamese identity card and Vietnamese passport;
·Family household register showing the secondary visa applicant was born on 10 April 1995 in Ho Chi Minh City and is the child of the visa applicant;
·Criminal record issued by the Ministry of Justice, National Criminal Record Center, Socialist Republic of Vietnam, issued on 15 August 2018 confirming the secondary visa applicant has no criminal records;
·National police certificate issued by the Australian Federal Police, dated 14 August 2018 confirming there are no disclosable court outcomes against the secondary visa applicant;
·Marriage status certificate issued by the People’s Committee of Tan Binh district, Socialist Republic of Vietnam, confirming the secondary visa applicant has never married, dated 17 August 2018;
·Secondary visa applicant’s evidence of study, including Advanced Diploma of Hospitality, and evidence of enrolment in a Bachelor of Tourism and Hospitality Management course;
Tribunal file
On 27 June 2022 the applicants provided the following documents to the Tribunal in support of their application for review:
·Electricity bills in joint names for the period of 2016 to 2019;
·Gas bills in joint names for the period of 2016 to 2019;
·Phone bills showing mobile phone data plans for Mr Trung Ly Pham (sponsor) and Ms Ngoc Hanh Nguyen (visa applicant) for the period of January 2017 to July 2019;
·Home and car insurance policies for the period of 2019 to 2020 confirming both parties reside at [Address 1];
·Health insurance letters dated 2016 July 2019 under the applicant’s name, confirming she resides at [Address 1];
·Bank statements in joint names for the period of 2017 to July 2019 showing deposits of salary and purchases for goods and services including but not limited to petrol, ‘Vodafone’ bills and ‘Medibank’ bills. The bank statements also confirm both parties reside at [Address 1];
·Evidentiary photographs depicting their wedding reception, engagement, photos of the couple and the couple with what appear to be with friends;
·Flight tickets and travel itinerary;
·Council rate for 2016/2017 in the sponsor’s name, confirming his residence of [Address 1];
·The sponsor’s individual tax return for 2017 and 2018 confirming his residential address of [Address 1], and that visa applicant is listed as the sponsor’s spouse;
·Wedding invitation addressed to the couple;
On 26 August 2022 the applicants provided the following documents to the Tribunal in support of their application for review:
·Money transfer receipts showing the sponsor as the sender and Hoang Nhan Nguyen (visa applicant’s son) as the receiver, for the amount of $300.00 AUD on six separate occasions on 11 July 2020; 15 August 2020; 12 September 2020; 10 October 2020; 23 September 2021; 22 November 2021;
·Telephone invoice for both the visa applicant and the sponsor;
·Gas bills in joint names for the bill period of August 2021 to May 2022;
·Electricity bills in joint names for the bill period of July 2021 to June 2022;
·Bank statements in the visa applicant’s name for the period of May 2021 to May 2022, the address listed on these statements is [Address 1]
·A pack of photographs depicting the couple with family and friends, the couple in the hospital whilst the visa applicant was admitted, home life, and photos of the couple together.
On 8 November 2022, the applicants provided the following additional documentation:
·    Statement by the visa applicant made on 8 November 2022;
·    Statement by the sponsor made on 8 November 2022;
·    Witness statement from Thuy Dang, friend of the visa applicant stating she has met the sponsor on a number of occasions and believes theirs is a genuine and continuing relationship;
·    Superannuation statement of sponsor with a balance of $176,647.01 as at 30 June 2022, showing visa applicant as 100% beneficiary;
·    Medibank card showing both visa applicant and sponsor listed, issued 24 October 2016;
·    Medical report and documents demonstrating that visa applicant was admitted to hospital on 30 October 2020 for surgery; the sponsor was nominated as both her husband, next of kin and primary carer on admission;
·    Statements of jewellery authenticity for a diamond ring valued at $19,499 and a chain valued at $3,999;
ATTACHMENT B - 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).

[2022] AATA 4843

9 December 2022

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