PHAN (Migration) - [2022] AATA 2552

PHAN (Migration) [2022] AATA 2552 (9 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs THI THUY TRAM PHAN
REPRESENTATIVE:  Mrs MARIA DO (MARN: 0955639)
CASE NUMBER:  1821440
HOME AFFAIRS REFERENCE(S):          BCC2015/132318
MEMBER:Russell Matheson
DATE:9 February 2022
PLACE OF DECISION:  Sydney
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 and;
·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 09 February 2022 at 4:06pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – waiver of the sponsorship limitation – sponsor previously sponsored two partners to Australia – compelling circumstances – genuine and ongoing relationship – child born of the relationship – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.20
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a female national of Vietnam born in January 1992. She applied for the visa on 13 January 2015 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 applicant did not satisfy cl 820.211(2)(c) which requires the applicant to be sponsored by the sponsor at the time of application, and cl 820.221(4) which requires the sponsorship to continue; to have been approved by the Minister and be still in force.
The delegate refused to grant the visa because the sponsor did not satisfy the sponsorship requirements.
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. Rather, on 9 February 2022, the applicant and sponsor appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended by telephone. The representative Mrs Maria Do, a registered migration agent (MARN:0955639) also attended the hearing by video.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
On 25 September 2000 the sponsor married his first wife, Ms Vu Huyen Tran Hoang. He sponsored Ms Hoang…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PHAN (Migration) [2022] AATA 2552
Case: [2022] AATA 2552
Decision Date: 9 February 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, brought by the applicant against the Minister for Immigration. The applicant's visa application had been refused by a delegate of the Minister on the grounds that the sponsor had previously successfully sponsored two partners to Australia, rendering him ineligible to sponsor the applicant without a waiver of the sponsorship limitation. The delegate had found no compelling reasons to grant such a waiver. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether there were compelling circumstances affecting the sponsor that warranted a waiver of the sponsorship limitation, thereby allowing the applicant's Subclass 820 visa application to proceed. This involved an assessment of the sponsor's circumstances in light of departmental policy, which outlines examples of compelling circumstances such as the existence of a dependent child, the death of a previous partner, or a longstanding new relationship, while also emphasizing that these examples are not exhaustive and the purpose of the limitation is to prevent abuse of migration provisions.

The Tribunal found the applicant and sponsor's evidence to be genuine and credible, and accepted their oral and documentary evidence regarding their relationship. Crucially, the Tribunal noted that the delegate had not made an assessment of the evidence concerning whether the applicant was indeed the spouse or de facto partner of the sponsor. Therefore, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the applicant met specific criteria related to being the spouse or de facto partner of the sponsor, allowing for the assessment of the remaining criteria for the Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background On 25 September 2000 the sponsor married his first wife, Ms Vu Huyen Tran Hoang. He sponsored Ms Hoang in November 2000 and her partner visa was granted in November 2002. The sponsor divorced her in May 2009. On 20 March 2010 the sponsor married his second wife, Ms Thi Le Xuan Nguyen. He sponsored Ms Nguyen in April 2010 and her partner visa was granted in May 2012. The applicant and sponsor claim to have first met in Vietnam in November 2013. The applicant first arrived in Australia on a Student visa (Subclass 573) in March 2014. The applicant after arriving in Australia lived with the sponsor. The sponsor proposed to the applicant in April 2014. The sponsor divorced his second wife in August 2014 and married the applicant in September 2014. The applicant applied for her Subclass 820 (Partner) visa on 13 January 2015 on the basis of her relationship with her sponsor.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form, and evidence provided to the Department and Tribunal in relation to the application. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused the application because it says the sponsor has previously successfully sponsored two spousal partners to Australia and so is ineligible to be a sponsor. The delegate found there were no compelling reasons to waive the sponsorship limitation. The applicant and sponsor gave their oral evidence separately and jointly. The parties provided written and oral evidence about the formation of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, social activities, living arrangements and commitment to each other. The Tribunal found their evidence to be genuine and credible. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the significant amount of documentary evidence provided to reach the findings below. The delegate has not made an assessment of the evidence in respect of the requirement that the applicant is required to be the spouse or de facto partner of the sponsor. Having regard to the President’s Direction Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate. The issue in the present case is whether the sponsorship of the applicant’s visa should be approved because there are compelling reasons affecting the sponsor. Departmental policy contained in the Procedures Advice Manual states in regard to compelling circumstances:7.2 Compelling circumstances affecting the interests of the sponsorUnder policy, compelling circumstances affecting the interests of the sponsor include instances where:·the applicant and their sponsor have a dependent child who is dependent on each of them or·the death of the previous partner or·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or·the new relationship is longstanding.These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list can be given, some general aspects that may be particularly important are:·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant. Is the applicant sponsored?

Evidence

Evidence Before The Court

The applicant applied for her Subclass 820 (Partner) visa on 13 January 2015 on the basis of her relationship with her sponsor.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form, and evidence provided to the Department and Tribunal in relation to the application. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused the application because it says the sponsor has previously successfully sponsored two spousal partners to Australia and so is ineligible to be a sponsor. The delegate found there were no compelling reasons to waive the sponsorship limitation. The applicant and sponsor gave their oral evidence separately and jointly. The parties provided written and oral evidence about the formation of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, social activities, living arrangements and commitment to each other. The Tribunal found their evidence to be genuine and credible. The Tribunal accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the significant amount of documentary evidence provided to reach the findings below. The delegate has not made an assessment of the evidence in respect of the requirement that the applicant is required to be the spouse or de facto partner of the sponsor. Having regard to the President’s Direction Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate. The issue in the present case is whether the sponsorship of the applicant’s visa should be approved because there are compelling reasons affecting the sponsor. Departmental policy contained in the Procedures Advice Manual states in regard to compelling circumstances:7.2 Compelling circumstances affecting the interests of the sponsorUnder policy, compelling circumstances affecting the interests of the sponsor include instances where:·the applicant and their sponsor have a dependent child who is dependent on each of them or·the death of the previous partner or·the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or·the new relationship is longstanding.These examples are not exhaustive. The purpose of the sponsorship limitation is to prevent abuse of the partner/fiancé migration provisions and this should be kept in mind when deciding whether to exercise the waiver.Every aspect of the sponsor's circumstances is relevant to the existence of compelling circumstances. Although no definitive list can be given, some general aspects that may be particularly important are:·the nature of the hardship/detriment that would be suffered (by the sponsor) if the sponsorship were not approved.·the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant. Is the applicant sponsored?

Decision

Reasons for decision

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 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; and·cl 820.221(4) of Schedule 2 to the Regulations.Russell MathesonMember

Ratio Decidendi

Legal Principle Established

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