PHAN (Migration)
[2022] AATA 2552
•9 February 2022
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, 1.20CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77STATEMENT 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 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 sponsor
Under 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?
Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include cl 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident, or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).
A copy of the applicant’s passport is on the Department’s file. The Tribunal finds the applicant has turned 18. A copy of the sponsor’s passport is on the Department’s file. The Tribunal finds the sponsor is an Australian citizen.
The Department’s file contains the sponsorship Form 40SP lodged with the application and signed by the sponsor. The Tribunal finds that she completed the requisite sponsorship form, and the applicant was, at the time of application, sponsored by the sponsor.
Therefore, at the time of application sponsorship the requirement in cl 820.211(2)(c) is met.
Should the sponsorship be approved?
At the time of the decision, cl 820.221(4) requires that the sponsorship mentioned in cl 820.211(2)(c) continues and has been approved by the Minister and is still in force.
Sponsorship approval is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain parent visa holders can sponsor another person for a partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.
Relevantly, reg 1.20J of the Regulations sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under reg 1.20J(1), a sponsor is limited to a total of two approved sponsorships or nominations that lead to the grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).
The delegate says the present case is affected by the sponsorship limitation in reg 1.20J because it is the sponsor’s third sponsorship. Departmental records confirm the sponsor has sponsored two previous spousal/de facto partners which both resulted in the grant of a permanent visa in 2002 and 2012. He previously sponsored Ms Hoang and Ms Nguyen.
The Tribunal accessed the Department’s records (ICSE) to confirm the outcomes of the sponsor’s previous sponsorships. The Department’s records confirm the sponsor’s two previous sponsorships were approved and both sponsored partner visa applications were granted which also resulted in the grant of permanent visas.
The Tribunal finds the sponsor has held two previously approved sponsorships that each led to the grant of a partner visa. He has made a third application regarding sponsorship of the applicant whom he married on 26 September 2014 in Australia. The sponsor’s sponsorship of the applicant must not be approved unless there are compelling circumstances affecting him.
As acknowledged by the parties at the hearing, the sponsor has previously had two sponsorships or nominations.
The Tribunal considered if the sponsorship should be approved because of compelling circumstances affecting the sponsor.
The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
The sponsor provided evidence that his new relationship is longstanding in nature, is genuine and continuing to the exclusion of all others. The parties gave oral evidence and provided significant documentary evidence and photographic evidence about the development of their relationship, their knowledge of each other’s family background and relationship histories, finances, assets, social activities, living arrangements, commitment to the relationship and love for each other. They also provided multiple statutory declarations (Form 888) from friends attesting to the genuineness of their relationship and their own individual statutory declarations. The Tribunal is satisfied that they represent themselves to others as being married. The parties provided evidence of their commitment to the relationship and a strong degree of companionship and emotional support and a belief that their relationship was long-term. The Tribunal accepts that the parties are legally married and have been in a spousal relationship for over seven years.
The applicant provided evidence that she gave birth to a child of the relationship in May 2019. A copy of the child’s birth certificate is before the Tribunal indicating the applicant and sponsor are the parents. In the Tribunals view, the existence of an Australian child from the applicant’s relationship with the sponsor constitutes a compelling circumstance that justifies the waiver of the sponsorship limitation.
The Tribunal is of the view that separating parents from their children during an early developmental phase would be an undesirable outcome which would impact the health and future outcomes for a child. These include the bond that children develop with their parents, particularly as they develop at a young age which is fundamental to their flourishing and children without secure parental bonds are more likely to have behaviour and literacy problems. The Tribunal is of the view this constitutes a compelling circumstance that justifies the waiver of the sponsorship limitation. The parties indicated to the Tribunal that they were prepared to undertake a DNA test if requested to by the Tribunal. The Tribunal accepts that the applicant and sponsor are the biological parents as they have previously attempted to have children through an IVF program. Information provided to the Tribunal included various medical reports in relation to the IVF treatment undertaken by the applicant and sponsor. The Tribunal finds on that basis that reg 120J(2) is met and for that reason also, the applicant meets reg 120J.
The Tribunal is satisfied the circumstances affecting the sponsor are, when considered individually and cumulatively, compelling circumstances so as to approve the sponsorship.
The sponsors signed and dated sponsorship form acknowledges he consents for the Department to disclose to the applicant any convictions for relevant offences. There is nothing before the Tribunal to suggest the sponsorship is no longer in force.
The Tribunal is satisfied that there is no information before it that suggests that the sponsorship limitations of reg 1.20K, reg 1.20KA or reg 1.20KB prevent approval.
Having regard to all of the circumstances the Tribunal is satisfied there are compelling circumstances affecting the sponsor, and the sponsorship can be approved despite the operation of reg 1.20J(1).
On the evidence before the Tribunal, the requirements of cl 820.211(2)(c) and cl 820.221(4) are met.
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.
R
ussell Matheson
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Remedies
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Statutory Construction
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