Philip (Migration)

[2023] AATA 1404

Philip (Migration) [2023] AATA 1404 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stanley Philip

CASE NUMBER:  1914547

HOME AFFAIRS REFERENCE(S):          BCC2017/4093346

MEMBER:Edward Howard

DATE:28 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 28 April 2023 at 2:11pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa applicant had ceased – parties do not have joint ownership of real estate or any major assets – no evidence was provided from the sponsor confirming reconciliation or her continuing sponsorship – visa applicant is not a credible or truthful witness – evidence of the visa applicant providing false or misleading information in relation to his visa application – visa applicant does not satisfy the criteria of PIC 4020(1)(a) – decision under review affirmed    

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, r 1.09, Schedule 2, cls 820.211, 820.221, 820.226, Schedule 3

CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 November 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221 at the time of the delegate’s decision.

4. The applicant appeared before the Tribunal on 18 April 2023 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES AND LAW

6. There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

7. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.09A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a de facto partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined.[1]

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

8. The issue in the present case is whether at the time of the visa application and the time of this decision, the visa applicant is the spouse or de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

9. 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 de facto partner of the sponsor who is an Australian Permanent Resident.

   Are the parties in a de facto relationship?

10. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

11. In forming an opinion whether they are in a de facto relationship consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Proof of De facto Relationship

12. The parties’ commenced living together as a couple in October/November 2015. The parties provided a Queensland Civil Partnership Certificate registered on 1 May 2017. On the evidence, the parties were in a de facto relationship that was valid for the purposes of the Act as required by s 5CB(2) at the time of the application for a visa.

    Evidence of the Visa Applicant

13. The evidence of the visa applicant is that the parties were initially Facebook friends and then met in person in Brisbane in mid-2015. Their relationship subsequently developed and the sponsor moved into the visa applicants unit at Annerley in about October/November 2015.

14. The visa applicant gave evidence that the parties stayed the unit at Annerley for about one year and then moved to Laidley, sharing a house with other people. The owner of the property was a contractor and arranged work for the visa applicant on local farms. After Laidley, the parties moved to a unit at Mount Gravatt, then to a unit in Greenslopes, followed by a house in Inala. The parties then moved to a unit in Margaret Street, Brisbane City which he described as student accommodation.

15. The evidence of the visa applicant is that whilst they were living in Margaret Street, the parties’ had an argument and his partner left the unit and went to live with her aunt in Toombul, Brisbane. This was in early September 2018, at which time the sponsor advised the department that the relationship between the parties had ceased and she withdrew her sponsorship, by letter from their migration agent. On 5 September 2018, the visa applicant wrote to the Department stating that the relationship had not broken down. A further letter was received from the migration agent on 10 October 2018, which confirmed reconciliation had occurred between the parties.

16. On 26 March 2019, the sponsor again advised the Department that the relationship had ceased via a letter from their migration agent and she withdrew her sponsorship for a second time. On 23 April 2019, the visa applicant provided certain evidence in support of his claim that the parties were living together or were not living separately and apart on a permanent basis. This information included a customer receipt from St George Bank on 8 April 2019, a letter from the visa applicant on 22 April 2019 and a statutory declaration from Mr Bill Toroso dated 21 April 2019. This information is referred to in the Decision Record of the delegate dated 28 May 2019.

17. It was noted by the delegate that since notification was received from the sponsor on 29 March 2019 that the relationship had ceased, the visa applicant had provided limited evidence in support of the claim that the relationship was genuine and continuing.

18. At the Hearing, the visa applicant informed the Tribunal that he moved to Sydney in about July 2019. He eventually gained employment working in a Coles warehouse, working 40 – 45 hours per week at an hourly rate of $57 per hour. He stated that the sponsor has continued to live in Queensland, renting a room in a premises at Archerfield. His evidence is that the sponsor is employed in a butcher shop nearby.

19. The visa applicant gave evidence that he sometimes returns to Brisbane to see the sponsor and the sponsor also visits Sydney to see him. He stated that she does not want to move to Sydney because she wants to live close to her aunties in Brisbane. Whilst the sponsor enjoys her work in Brisbane, the visa applicant conceded that the sponsor would be able to get a job in Sydney if she wanted to live there.

20. When asked about his future plans, the visa applicant initially stated that he wanted to save money over a period of five years to buy a house in the Lockyer Valley and that he would get his cousins to work and live with him and help pay the cost. His partner, the sponsor, would remain in Brisbane.

21. The visa applicant then went on to describe how Coles are building a new warehouse which will be automated and that he and other workers have been told that they will lose their jobs once the new warehouse is operational. He then speculated that although this new warehouse may not be finalised until the end of 2023 or early 2024, he may move to the Lockyer Valley in mid-2023. He stated that he would ask the sponsor to move to Lockyer Valley and if she wouldn’t move then he will visitor on weekends.

22. The visa applicant then gave evidence that the sponsor would prefer him to find a place to live close to her work so she can remain in her current job. He stated that he would probably do that. The Tribunal found the visa applicant’s evidence in regard to these matters to be inconsistent, vague and unhelpful. In this regard, the Tribunal found the visa applicant to not be a truthful or credible witness.

    Are the other requirements for a de facto relationship met?

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

23. The visa applicant gave evidence that the parties have a joint account with the National Australia Bank, although he conceded it had not been used for approximately three years and his recollection is that it has a balance of approximately $80.

24. The visa applicant gave evidence that the sponsor has accounts with the Commonwealth Bank and he has accounts with St George Bank. In reference to the sharing of resources, the visa applicant stated that he had sent money to the sponsor to purchase an airline ticket recently for her to travel to Sydney and then gave her $300 cash before she left Sydney.

25. The Tribunal finds that in relation to the financial aspects of the relationship, the parties do not have joint ownership of real estate or any major assets. For a period of time, they had joint financial responsibility for rental and utilities commitments. There is minor evidence of the pooling of resources. There is no evidence before the Tribunal of any genuine financial relationship between the parties.

    The Tribunal is not satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine relationship. The Tribunal places limited weight on the financial aspects of the relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

26. The evidence of the visa applicant is that he moved to Sydney in about July 2019 and that the sponsor has lived in Brisbane since that time. He claims that in the three years and eight months since he moved from Brisbane, the parties have visited each other at their respective homes.

27. There is evidence that they lived together for periods between late 2015 and September 2018, when the sponsor moved out of their joint residence and commenced living with her aunt. The evidence of the visa applicant is that he remained living in Margaret Street and then moved to an apartment on Boundary Road, Brisbane, before moving to Sydney in mid-2019. Since the time of the visa applicant moving to Sydney, there is no evidence that the parties had living arrangements consistent with that of a genuine and committed relationship. The Tribunal places some weight on the household aspects.

    Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

28. The evidence of the parties is that they lived together from about late 2015 until the sponsor moved out of their joint premises in Margaret Street and moved to live with her aunt in 2018. It is the evidence of the visa applicant that the parties were socially accepted as a matter as a de facto couple and evidence was provided by way of various statutory declarations and statements to support this claim.

29. The Tribunal accepts that the parties represented themselves to other people as being in a married relationship. The Tribunal places limited weight on the social aspects of the relationship.

    Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

30. The evidence of the visa applicant is that the parties met in person in mid-2015, commenced a relationship and began living together in October/November 2015.

31. The evidence of the visa applicant is that whilst they were living in Margaret Street in 2018, the parties had an argument and the sponsor left the unit and went to live with her aunt in Toombul, Brisbane.

32. On 3 September 2018, the sponsor advised the department that the relationship between the parties had ceased and she withdrew her sponsorship, via a letter from their migration agent. On 5 September 2018, the visa applicant wrote to the Department stating that the relationship had not broken down. A further letter was received from their migration agent on 10 October 2018, which confirmed reconciliation had occurred between the parties.

33. On 26 March 2019, the sponsor again advised the Department that the relationship had ceased by letter from her migration agent and she withdrew her sponsorship for a second time. On 23 April 2019, the visa applicant purported to provide certain evidence in support of his claim that the parties were living together or were not living separately and apart on a permanent basis. This evidence is referred to in the Decision Record of the delegate dated 28 May 2019. It includes a customer receipt from St George Bank on 8 April 2019, a letter from the visa applicant on 22 April 2019 and a statutory declaration from Mr Bill Toroso dated 21 April 2019. No evidence was provided from the sponsor confirming reconciliation or her continuing sponsorship.

34. The visa applicant gave evidence that the sponsor has remained in Brisbane because she likes her job and wants to live close to her aunties. The visa applicant conceded that the sponsor would be able to obtain employment in Sydney if she wished to move there. When questioned as to future plans, the visa applicant gave a number of conflicting responses which involved him staying in Sydney for an extended period, moving to the Lockyer Valley or moving closer to Brisbane. As noted above, the Tribunal found his evidence in relation to these matters inconsistent, vague and unhelpful.

35. The Tribunal, having carefully considered all of the evidence in relation to the nature of the commitment in the relationship, concludes that the degree of companionship and emotional support the parties drew from each other was minimal. The Tribunal is not satisfied that the parties’ had a mutual commitment to a shared life to the exclusion of all others, or that the nature of the parties’ commitment to each other was consistent with a genuine and continuing married relationship.

    Issues relating to credit of visa applicant

36. The visa applicant was asked to clarify when the sponsor visited him in Sydney during 2022. He responded by saying that she had visited in February, May, July and November 2022. The visa applicant was asked to confirm that these were the only months in which the sponsor visited him in Sydney during 2022. He confirmed these dates on several occasions in his evidence.

37. The Tribunal then referred the visa applicant to two statutory declarations signed by the visa applicant and the sponsor, which were dated 13 September 2022. The statutory declarations were made in Sydney on this date. When asked to explain how the sponsor had made this statutory declaration in Sydney when he had confirmed she was not there in September 2022, the visa applicant changed his evidence to say that the sponsor was in fact there in September 2022. The Tribunal found the visa applicant’s evidence to be inconsistent and vague.

38. The Tribunal then discussed the statutory declarations with the visa applicant. It was suggested to the visa applicant that the signatures on both his statutory declaration and that of the sponsor, were very similar. In response to this, the visa applicant stated that the sponsor had an injured finger on the day that the document was executed and that in effect he held her hand and helped her write her signature.

39. The Tribunal then referred the visa applicant to the contents of the sponsor’s statutory declaration wherein the sponsor stated that she lived at an address in Sydney and that she and the visa applicant “used to live in QLD but we moved to NSW for work purposes”.

40. The Tribunal put to the visa applicant that this information was untruthful. The visa applicant’s initial response was that it was the sponsor’s statutory declaration and not his own. When pressed on the point as to its truthfulness, the visa applicant conceded that the facts stated were untruthful. It was further pointed out to him that the style of writing in each declaration was very similar. The visa applicant then stated that the sponsor had dictated her statutory declaration to him and he wrote it on her behalf.

41. The Tribunal put to the visa applicant that he had written the statutory declaration knowing it to be false and contain untruthful facts. He conceded that that was the case. It was further put the visa applicant that the statutory declaration was lodged with these untruthful facts for the purpose of advancing his application for a visa. The visa applicant agreed with this statement and conceded that that it had been done for that purpose.

42. The visa applicant also gave evidence that the statutory declarations were written out and signed at his residence in Sydney and that they were then taken to a local library where a Justice of the Peace was available to assist. His evidence is that prior to seeing the J.P. the sponsor took a phone call and did not actually attend personally on the JP. Instead, the visa applicant presented the JP with the completed and signed documents and they were certified by the JP notwithstanding.

43. Based on the visa applicant’s evidence that he had written out the document, assisted in signing and presented it to the JP on his own, it was put to the visa applicant that in fact the sponsor was not in Sydney at all at the time the document was created and that any involvement by the sponsor was in fact a fabrication on the part of the visa applicant. The visa applicant denied that this was the case. However, there no persuasive evidence that the sponsor was involved in the production and execution of the statutory declaration attributed to her.

1. Further, the sponsor informed the Department of her withdrawal of sponsorship on 26 March 2019 by letter from her migration agent, which informed the Department that:

   “The relationship has soured and the parties are now separated and are not in a genuine spousal relationship.”

2. Therefore, since the sponsor informed the department that she withdrew her sponsorship in March 2019, there has been no evidence presented (other than the statutory Declaration noted above) that a reconciliation had occurred and that the sponsor continued to wish to sponsor the visa applicant. The Tribunal finds that the sponsor’s withdrawal of her sponsorship on 26 March 2019 and the decision of the visa applicant to move to Sydney in mid-July is highly suggestive of a separation of the parties as noted in the letter from the migration agent.

3. Further, the visa applicant had listed the sponsor as a witness in his Hearing Response Form, however she did not attend or give evidence. The visa applicant stated that she was unavailable due to “family issues”, which when pressed, he described as her aunt being unwell. Apparently she was in Sydney to testify with him but returned to Brisbane to see her aunt instead of giving evidence on behalf of the visa applicant. He intimated that the aunt’s condition was vaguely related some form of senility or mental illness but was unable to give a clear and precise response. The Tribunal finds that the lack of evidence by the sponsor in support of the visa applicant is inconsistent with the parties being in a genuine relationship.

4. The evidence of the visa applicant that he submitted the Statutory Declaration with full knowledge of the false and untruthful nature of its contents leads the Tribunal to find that the visa applicant is not a credible or truthful witness.

   Public Interest Criteria 4020

5. The Delegate also made an assessment of the application of the visa applicant under Public Interest Criteria 4020 (PIC 4020) and found that there was evidence that he had “provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application”.

6. The visa applicant has conceded that he had previously travelled to Australia under a prior name, Newman Kyakas Herman.

7. The Tribunal finds there is evidence of the visa applicant providing false or misleading information in relation to his visa application.

8. In this regard, the Tribunal refers to the “Application for migration to Australia by a partner” document completed by the visa applicant and submitted to the Department on 3 November 2017. In answer to the question on page 2:

   “ Is this applicant currently, or have they ever been known by any other names?”,  the visa applicant answered “No”.

   This is despite the visa applicant’s own evidence that he was formerly known by another name, as Newman Kyakas Herman.

9. The Tribunal finds this to be evidence of the visa applicant providing ‘false or misleading information in a material particular’ in relation to his visa application. Accordingly, the Tribunal finds the visa applicant has not satisfied PIC 4020(1)(a).

10. Pursuant to PIC 4020(4), the Minister may waive the requirements of PIC 4020(1)(a) if satisfied there are either, compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian Permanent Resident or an eligible New Zealand citizen, which justify the grant of the visa.

11. The Tribunal finds that the visa applicant has not identified any compelling circumstances that affect the interests of Australia or, compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian Permanent Resident or an eligible New Zealand citizen, which would justify the grant of the visa.

12. The Tribunal finds that the visa applicant does not satisfy the waiver requirements under PIC 4020(4). Therefore, the visa applicant also fails to meet the criteria of Regulation 820.226.

    Information covered by section 376 certificates

13. The Department file included information provided by members of the public, making allegations in relation to the matter. This information related to allegations that the applicant was previously known by another name, Newman Kyakas Herman, that he had changed his name to avoid being identified as Herman because he had a criminal history in Papua New Guinea.

14. Pursuant to section 359AA: the visa applicant was orally informed at the Hearing that the Department had provided adverse information to the Tribunal, which would be the reason or part of the reason for affirming the decision to refuse the visa; the gist of the adverse information was put to the visa applicant; the visa applicant was informed of the relevance of the information to the review and the consequences of the information being relied upon in affirming the decision under review; the visa applicant was orally invited to comment on or respond to the information; and the visa applicant was advised that he make seek additional time to comment on or respond to the information. The visa applicant chose to respond to the information immediately. The visa applicant then denied the allegations relating to a criminal history. The visa applicant conceded he had previously been known as Newman Kyakas Herman. He stated that as a result of family infighting and violence, he had changed his name to Stanley Philip.

15. The issue relating to the visa applicant’s purported change of name and failure to declare same in his visa application has been addressed above.

16. In relation to the issue of him having a prior criminal history, in the absence of any corroborating details and evidence, the Tribunal places no weight on that information.

    Overall Conclusions

17. The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.09A, that is, the financial, household, social and commitment aspects of the relationship.

18. In forming a view, the Tribunal is mindful of the authority in ^[1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

19. Having carefully considered all of the evidence, the Tribunal is  not satisfied that at the time of this decision the parties have a mutual commitment to a shared life to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also not satisfied that they have lived together or not separately and apart on a permanent basis. The Tribunal is therefore not satisfied the requirements of section 5CB(2)(a)-(d) of the Act are met at the time of this decision.

20. The Tribunal is therefore not satisfied that the parties’ relationship fulfilled the criteria contained in clause 820.211(2) of the regulations at the time of this decision. Therefore, The Tribunal finds that the visa applicant does not meet the requirements of clauses 820.211(2) and 820.221. Additionally, the visa applicant does not satisfy the criteria of PIC 4020(1)(a) or the waiver of such under PIC 4020(4) and therefore fails to satisfy Regulation 820.226.

21. There is no evidence before the Tribunal that the visa applicant meets the criteria on any other basis.

22. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    decision

23. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Edward Howard
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

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

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).