Phan (Migration) - [2020] AATA 513

Phan (Migration) [2020] AATA 513 (12 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Thi Phan
CASE NUMBER:  1907471
HOME AFFAIRS REFERENCE(S):          BCC2017/152798
MEMBER:Stephen Conwell
DATE:12 February 2020
PLACE OF DECISION:  Melbourne
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 of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 12 February 2020 at 1:15pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – sponsorship withdrawn – child of the relationship – biological parentage confirmed – ‘custody or joint custody of, or access to’ child – right to custody – no court order required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls, 820.211, 820.221
CASES
Fitch v MRT [2004] FCA 1976
Ortiz v MIAC [2011] FMCA 432
Srour v MIMIA [2006] FCA 1228
Yazbeck v MIMIA (2002) 124 FCR 458

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 (the Act).
The applicant applied for the visa on 12 January 2017 on the basis of his relationship with his sponsor, Ms Truc Thien Vuong (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 (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refused to grant the visa on the basis that the applicant did not satisfy cl.820.221(1)(a) because his Sponsor had withdrawn her sponsorship and no evidence had been provided that the applicant continued to be the spouse or de facto partner of the Sponsor. Further, the delegate was not satisfied that there were specified circumstances such that the applicant could continue to be considered for the grant of the visa despite the relationship with his Sponsor having ceased.
On 28 June 2017 the Department received from the applicant’s representative, a Birth Certificate dated 16 June 2017 for the claimed child, Serena Phan. The Birth Certificate records the child’s date of birth as 10 May 2017.
On 3 July 2017 the Department received DNA evidence confirming the high probability that the applicant is the biological father of the claimed child.
The applicant appeared before the Tribunal on 23 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent who attended the Tribunal hearing.
The applicant provided a copy of the decision record with his application to the Tribunal for a merits review of the decision.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.820.221 except that the relationship with the Sponsor has ceased?
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy d.820.221(1)(a).
Under migration law, an application is made for a class of visa and the application must be considered against the criteria for all subclasses within that visa class. There are two visas that the applicant applied for and each of those visas has only one subclass:
·Partner (Temporary) (Class UK) Subclass 820;
·Partner (Residence) (Class BS) Subclass 801.
A (primary) applicant must, at time of application, satisfy regulation 820.211 by meeting the requirements of at least one of subclauses (2), (5), (6), (7), (8), or (9). The delegate records that subclauses (5), (6), (7), (8), and (9) of clause 820.211 were found not to apply to the applicant’s circumstances.
Subclause 820.211(2) requires the applicant at time of application, is the spouse or de facto partner of the sponsoring spouse. The definition of spouse and de facto partner is given in section SF and 5CB respectively and attached. The delegate records that the couple satisfied cl.820.211(2) on the evidence provided.
Section 376 Certificate
The Tribunal notes that a certificate pursuant to s.376 of the Act was contained in the Departmental file. At the hearing the Tribunal advised the applicant of the certificate, provided him with a copy and invited submissions upon its validity. Ultimately the Tribunal determined that the certificate was valid and provided the 'gist' of the information covered by it to the applicant using the procedure in s.359AA of the Act. In summary, the material was information seeking to impugn the character of the applicant and undermine the veracity of his claim to have access to and custody of the claimed child, Serena Phan. During the hearing the applicant denied the imputations and argued that in fact he does have and wishes to maintain, access to and custody of the claimed child, Serena Phan.
The Tribunal has carefully considered the information contained in the correspondence that is the subject of the s.376 certificate. Whilst the Tribunal gives some weight to this evidence, on balance, and having the opportunity of obtaining the applicant’s oral evidence directly, the Tribunal is minded to give greater weight to the applicant’s evidence in support of his claim to have access to and custody of the claimed child, Serena Phan.
Criteria to be satisfied at time of decision
At time of decision the applicant must continue to meet the requirement that he is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.
On 5 July 2018 the Department received information that the applicant’s relationship with his Sponsor had ceased.
On 22 January 2019 the Department wrote sent a letter to the applicant containing information concerning the criteria that must be met to continue with the application. The applicant was also requested amongst other things, to provide certain documentation if the applicant wished to proceed with his application notwithstanding the relationship breakdown. The letter gave a prescribed period to provide a response.
The Department file reveals that on 15 February 2019, the Department received an email from the applicant’s migration agent attaching correspondence from the childcare centre attended by the couple’s daughter, as well as numerous photographs of the applicant with his daughter during his visits to the childcare centre.
The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 because the Sponsor had withdrawn her sponsorship and there was no evidence that the applicant met any of the alternatives in the relevant clause.
The Tribunal finds on the basis of the applicant’s evidence that the applicant is no longer the spouse of his Sponsor, and so does not meet subclause 820.221(1)(a).
Where the relationship has ceased and/or sponsorship has been withdrawn, legislation provides for the grant of a permanent visa in certain limited circumstances. Those circumstances are:
·the death of the sponsor (subclause 820.221(2)), or
·where it is assessed that the applicant and/or a dependent child of the sponsoring partner or of the applicant or of both of them has suffered family violence committed by the sponsoring partner; (subclause 820.22I (3)(b)(i)), and/or
·the applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (subclause 820.221 (3)(b)(ii)).
The Tribunal finds there is no evidence that the Sponsor is deceased. Accordingly the Tribunal finds the applicant does not meet subclause 820.221(2).
The Tribunal finds there is no evidence that family violence has occurred. Accordingly the Tribunal finds the applicant does not meet subclause 820.221(3)(b)(i).
The Tribunal notes although the delegate found there was evidence of a child of the relationship, the delegate was nonetheless not satisfied that the applicant met any of the alternatives in the relevant clause.
The Tribunal is satisfied with the Birth Certificate as evidence that there is a child of the relationship and further, that the applicant has been confirmed by biological parentage testing as the father of the child. The DNA results appear on the Departmental file (fols.163-164). At the hearing the applicant gave evidence in relation to the child and his regular visits to her childcare centre and other regular occasions that he has custody of her, with the Sponsor’s agreement and co-operation. He gave satisfactory and therefore convincing evidence that he and his former partner share responsibility for the child jointly.
Legal obligations in respect of a child
The meaning of cl.820.221(3)(b)(ii) and corresponding provisions has been considered by the courts a number of times.
In Yazbeck v MIMIA (2002) 124 FCR 458, when considering a similar provision in relation to Part 100 of Schedule 2 to the Regulations, Sundberg J reviewed amendments to the Family Law Act 1975 in 1995, noting that ‘parenting orders’ were introduced (including residence and contact orders) and replaced custody and access orders. Sundberg J concluded that subclause 100.221(4)(c)(ii) is intended to cover custody and access orders made under the Family Law Act 1975 in the form it took prior to 1995 and residence and contact orders made since that time. Sundberg J held that the omission of any reference to orders from subclause (A) was the result of bad drafting. This was said to be supported by the fact that paragraphs (A) and (C) were counterparts. Sundberg J noted that paragraph (A) refers to “custody or joint custody of, or access to” a child whereas paragraph (C) refers to the sponsoring spouse having been granted “joint custody or access by a court”.
In Fitch v MRT [2004] FCA 1976 (Fitch), Dowsett J considered the meaning of “custody or joint custody” for the purposes of cl.801.221(6)(c)(ii)(A) in Part 801 of Schedule 2 to the Regulations. His Honour reasoned that because subclause (B) applied to orders under the Family Law Act 1975, the omission of any reference to orders from subclause (A) was more likely deliberate than bad drafting and intended to deal with arrangements other than orders made under that Act. Dowsett J said this was particularly so ‘when one asks why bona fide consensus as to a child’s welfare should not be sufficient for the purposes of subpar 801.221(6)(c)(ii)’. Dowsett J rejected Sundberg J’s view that paragraph (A) was a counterpart to paragraph (C) and said that in order to determine the meaning of “custody” for the purposes of cl.801.221(6)(c)(ii)(A) it was necessary to look to relevant law outside of those regulations, including the Family Law Act 1975, the general law and other statutes and noted that there were statutes other than the Family Law Act 1975 which provided for custody orders to be made, including by the exercise of administrative rather than judicial power. While acknowledging that it was unnecessary to do so, because of his finding with respect to the meaning of ‘”custody or joint custody”, Dowsett J considered the meaning of “access” and saw “no reason to conclude that access arrangements must be pursuant to a court order if they are to satisfy item (A)”.
In Srour v MIMIA [2006] FCA 1228 (Srour), Moore J considered the meaning of “custody” for the purposes of cl.100.221(4)(c)(ii) and found that the appellant had a right of custody that arose as an incidence of the statutory imposition of parental responsibility by operation of the Family Law Act 1975. In doing so Moore J considered the conflicting judgments of Yazbeck and Fitch and was unable to conclude that either approach was plainly or clearly wrong. However, he noted Fitch was “marginally more compelling”.
More recently In Ortiz v MIAC [2011] FMCA 432 (Burnett FM, 9 June 2011) at [20] the Court summarised the principles arising from Yazbeck, Fitch and Srour as including that a party has a right to custody as an incident of the statutory imposition for parental responsibility by operation of the Family Law Act and accordingly an applicant who is the biological parent of the child may have custody, joint custody of, or access to that child, even where there is no court ordered custody or maintenance arrangement.
Whilst the matter is not entirely free from doubt, consistent with Fitch, Srour and the commentary of Burnett FM in Ortiz at paragraph 20, the Tribunal is of the view that on a plain reading of cl.820.221(3)(b)(ii), there is no requirement that the custody or access be custody or access arising under the Family Law Act 1975 where the child in question is the biological child of both the applicant and Sponsor. After careful assessment of all of the evidence the Tribunal is satisfied that the applicant meets subclause 820.221(3)(b)(ii).
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 for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
Stephen Conwell
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).