Tran (Migration)

[2022] AATA 2229

Tran (Migration) [2022] AATA 2229 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Vinh Tran

VISA APPLICANTS:  Mrs Thi Ngoc Kim Chi Nguyen
Miss Ngoc Thanh Thuy Nguyen

REPRESENTATIVE:  Ms Thu Bannan (MARN: 0964816)

CASE NUMBER:  1834714

DIBP REFERENCE(S):  BCC2017/3911143

MEMBER:Donna Petrovich

DATE:19 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.213 of Schedule 2 to the Regulations

·cl.309.211(2) and 309.221 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

·cl. 309.222 of Schedule 2 to the Regulations

The Tribunal remits the visa application for a Subclass 309 (Partner (Provisional)) visa for the  secondary applicant for reconsideration

Statement made on 19 May 2022 at 3:19pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – regular cash transfers – sponsor’s frequent visits to Vietnam – sponsor’s age and failing health – concerns for the sponsor’s wellbeing – compelling circumstances – longstanding relationship – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309. 211, 309.213, 309.221, 309.222, 309.311, 309.312, 309.321; rr 1.03, 1.15, 1.20

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 September 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the primary applicant, namely Nguyen Thi Ngoc Kim Chi) applied for the visa on 24 October 2017 on the basis of her relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.213 in Schedule 2 of the Regulations. This is because two (2) other people have previously been sponsored by Mr Van Vin Tran and been granted relevant permission as the spouse, de-facto partner or prospective spouse or de-facto partner. The delegate refused to approve the sponsorship as they found that the sponsor was subject to the sponsorship limitation and compelling circumstances did not exist to grant the sponsorship.

   Background

4. The primary applicant/visa applicant, Mrs Thi Ngoc Kim Chi Nguyen, is a sixty-two (62) year old woman from Vietnam who has one child from a previous marriage.  This child is a party to this application. The primary applicant has been married on two previous occasions.  Her sixteen (16) year old daughter from her second marriage, namely Nguyen Thi Ngoc Thahn, lives with her mother as a dependent.

5. The sponsor is a seventy-four (74) year old man who arrived in Australia [on a permanent visa] on 30 April 1980.  He has previously sponsored two (2) other women with whom he had relationships. The first involved a long-term marriage where he had four (4) children.  The sponsor provided evidence to the Tribunal that his marriage to Ms Thi Tuyet Nguyen dissolved on 25 May 2000.

6. The Tribunal was also provided with a Certificate of Divorce dated 22 August 2009 from the Federal Magistrates Court of Australia, for the Sponsor divorce from Ms Thi De Quach.

7. The sponsor has raised his family in Australia.  He is proud of his children’s achievements and contribution to Australia.  The sponsor is retired but he has worked as a handyman and in construction.

8. He met the primary applicant/visa applicant in Vietnam after being introduced by friends around November – December 2012.  The couple kept in contact after the sponsor went back to Australia.  The sponsor also visited the primary applicant/visa applicant again in Vietnam before returning to marry her on 21 October 2014.

9. The sponsor has spent at least six (6) months of each year in Vietnam living with the primary applicant/visa applicant since 2014, with the exception of 2020 and 2021 because of Covid 19 conditions which prevented him from visiting.

10. The sponsor lives at home and has suffered some health issues after the Covid pandemic, including some mental deterioration.  He told the Tribunal that he rents his own home.    

11. The review applicant appeared before the Tribunal on 12 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Thi Ngoc Kim Chi Nguyen (the primary applicant/visa applicant), two nieces of the sponsor/review applicant namely, Ms Hang Nguyen and Ms Phuong Nguyen and the sponsor’s son (Mr Vu Nguyen Tran).

12. The review applicant was represented in relation to the review.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the sponsorship by the review applicant/sponsor should be approved based on compelling circumstances in accordance with r.1.20J(2) despite the sponsor being impacted by the sponsorship limitation in r.1.20J(1)(a).

    SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

    Whether the parties are in a spouse or de facto relationship

15. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant/primary applicant claims to be the spouse of the review applicant who is an Australian citizen.

16. ‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal was provided with copies of the Marriage Certificate.  Evidence was provided at the hearing that they were married but had not formalised their wedding in the traditional way by having a large celebration with family and friends.  However, they are accepted as married by their family and those around them.  The Tribunal accepts that the visa applicant/primary applicant and sponsor live together as much as possible in a marriage that is valid. On the evidence, 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?

    Financial aspects

18. The Tribunal received evidence prior to the hearing that the sponsor provides financial assistance to the primary applicant/visa applicant.  Between 2013 and 2018, financial support was provided by the sponsor to the primary applicant/visa applicant via regular monthly cash transfers of $200 using Hai Ha Money Transfer.  There were also some larger amounts of $800, $600 and a single amount of $1000.

19. The primary applicant/visa applicant is a retired pensioner, living in government housing in Melbourne.  Whilst the couple live simply there is an exchange of money between the sponsor and the primary applicant/visa applicant.  This provides the primary applicant/visa applicant with a better quality of life and helps with the support her daughter.   The Tribunal in considering this, places only small wight in favour of the application. 

    Nature of the Household

20. The Tribunal heard that the primary applicant/visa applicant and sponsor live together in Vietnam for at least six (6) months of the year, and sometimes up to eight (8) months.  This has been the couple’s arrangement since their marriage on 21 October 2014. They have lived in the home of the primary applicant/visa applicant, have travelled and had some holidays in Vietnam.  The Tribunal heard that the primary applicant/visa applicant and sponsor did not like to be separated and that the sponsor had deteriorated mentally during Covid 19 when they were apart.

21. The Tribunal heard from his family who were concerned about the sponsor’s wellbeing.  This is because the primary applicant/visa applicant would take care of the sponsor’s day to day needs, ensure that he ate well and that he maintained appropriate living standards. The sponsor’s children live primarily in Australia.  Although, one of the sponsor’s children works in Papua New Guinea he lives in Australia.  He told the Tribunal that he and his sisters stay in regular contact with their father (the sponsor) but are worried about him living on his own.

22. The Tribunal heard that after the previous Department decision, the applicant left Australia for Vietnam to be with his wife.  But between 2018 and the commencement of the Covid pandemic in 2020, their father had medical issues and had to return to Australia for medical treatment.  He had little choice but to return to Australia.  As an Australian citizen he did not have the finances to cover his medical costs in Vietnam, but the treatment he receives in Australia is free, safe and reliable.

23. The Tribunal has considered the evidence provided in submissions and has given some weight in favour of the primary applicant/visa applicant.  The couple have cohabited and shared a household for the majority of their relationship.  The exceptions being when the sponsor returned to Australia for medical treatment and the Covid 19 pandemic which prevented his travel to Vietnam to be with his wife.      

    Social aspects of the relationship

24. The Tribunal heard from the sponsor’s son who appeared as a witness at the hearing.  He explained that he had spent time in Vietnam with his father and stepmother.  He was very happy that his father had found happiness after two failed relationships.  He told the Tribunal that most people have relationships that do not last.  He told the Tribunal that his father (the sponsor) and the primary applicant/visa applicant are very happy and had been so for a long time now.  He believed that this was the last love of his father’s life and that due his age expected it “to last to the end of his days”.

25. The Tribunal also heard from the sponsor’s niece who attended the wedding of her uncle (the sponsor) and his wife.  She told the Tribunal that she had visited them on many occasions and attended their wedding.  She told the Tribunal that the primary applicant/visa applicant takes good care of her uncle (the sponsor).

26. The Tribunal heard that they visited friends together in Vietnam and looked forward to spending the reminder of their lives together with their families in Australia.  The Tribunal is satisfied with the evidence provided and gives some weight in favour of the application.

    Nature of Persons commitment to each other

27. Both the applicant and sponsor have been married previously to two (2) other people.  They are both divorced and have children from previous relationships.  The Tribunal heard that since they were introduced in November/December 2012, and married on 21 October 2014, they have spent as much time in each others company as they are able.  As a result of their situation, the sponsor has spent around six (6) to eight (8) months of every year in Vietnam, where the couple have lived together as husband and wife. They have met with the children of their previous relationships.  The sponsor told the tribunal of his relationship with his stepdaughter and the guidance that he provides to her. The Tribunal is satisfied that the sponsor and primary applicant/visa applicant have been in a relationship for nearly nine (9) years and been married for over seven (7) years.

28. The Tribunal is satisfied from the evidence provided that the primary applicant/visa applicant and sponsor draw emotional support from each other and take care of each other emotionally.  This occurs on a day-to-day basis when they are living together.  When they are apart, they speak to each other daily via social media.  The Tribunal heard that since Covid, the sponsor’s health has deteriorated.  The sponsor needs his wife’s support in his day-to-day life.  The Tribunal heard that when separated they are lonely for each other.  In spite of his poor health the sponsor has travelled to Vietnam and is at the time of writing this decision with his wife in Vietnam.  However, the Tribunal heard that as his health is not good, the sponsor would prefer to be closer to medical care in Melbourne as he has more confidence in the treatment available to him Australia. The Tribunal in considering the evidence gives weight in favour of the application because of the care and commitment demonstrated by the couple.

    Any other circumstances of the relationship

29. The Tribunal heard that the sponsor is increasingly reliant on care, has lost some memory and cognitive ability since Covid 19 lockdowns, and was unable to see his wife for almost two (2) years. His daughter provided a submission that without the care from his wife, the sponsor would not eat properly, and his personal hygiene was not as normal.

30. The sponsor lives alone in Australia in his own flat that he rents. His daughter cares for him as much as possible, but in her submission told the Tribunal that he was increasingly unable to look after himself.  Medical evidence provided by Dr Yasmin Sheikh in her medical report detailed his health issues which included failing memory, mild dementia and wandering behaviour.  This puts the sponsor at risk if he continues to live alone.

31. The Tribunal considered the evidence regarding the sponsor’s circumstances.  The evidence detailed that he was an Australian citizen, aged seventy-three (73), who is in poor health with an increased need for support and care, and a need to be with his wife. In consideration of these circumstances the Tribunal finds that there are compelling circumstances due to the sponsor’s age, failing health, risks associated with dementia, his increasing need for care in Australia and his need to be with his wife. The Tribunal places significant weight in favour of the application in this regard.

32. The Tribunal has also considered the duration of the relationship.  Favourable consideration has been given by the Tribunal to the primary applicant/visa applicant, as the couple’s relationship has been ongoing for nearly nine (9) years and the couple have been married for over seven (7) years. On the basis that the relationship is longstanding the Tribunal places weight in favour of the application in this regard.    

33. The Tribunal finds that the primary applicant/visa applicant and sponsor live together as much as they can considering they reside in separate countries.  They have done so since their marriage in 2015.  The Tribunal is of the view that theirs is a genuine and continuing relationship and that they both have a mutual commitment to a shared life together to the exclusion of others.

34. On the basis of the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.

35. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

    Are the sponsorship requirements met?

36. Clause 309.213 requires that the visa applicant is sponsored by the review applicant where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

37. At the time of decision, this sponsorship must have been approved and still be in force as per r.309.222. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222.

38. Approval of sponsorship is subject to limitations contained in r.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.  Regulation 1.20KA 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 r.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 r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

39. The Tribunal finds that the identity and age of the sponsor is well established and that he appears to be of good character. The Tribunal acknowledges that the sponsor is subject to limitations contained in r.1.20J of the Regulations, which sets a limit on the number of people that a person can sponsor in a lifetime.

40. However, the Tribunal finds that there are compelling circumstances that enable the grant of the sponsorship in accordance with r 1.20J(2).  The Tribunal considers the compelling circumstances to include the sponsor’s age and failing health.  The sponsor is an Australian citizen, who needs to access health care in Australia, and this is becoming increasingly important.  As is his need for in home care and companionship.  Living independently is becoming increasingly difficult because of his dementia. The desire and need for the sponsor to be with his wife who can care for him and assist him, are also compelling circumstances considered favourably by the Tribunal in support of this application.

41. The representative submitted material to the Tribunal in support of the application.  The evidence included a signed statement from the sponsor’s son dated 6 December 2021, photographs, money transfers via Hai Ha Money Transfer, submissions by the representative dated 7 December 2021 and 11 May 2022, a letter evidencing the sponsor’s eligibility for Australian Government subsidised Aged Care dated 6 July 2021, a medical report from Dr Yasmin Sheikh dated 18 August 2021, material evidencing the sponsor’s visits to Vietnam, the couple’s marriage certificate and photographs of them signing the same.

42. On the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

1. As the Tribunal remits the application for reconsideration for the first named visa applicant/primary applicant, it follows that the second named applicant, namely Ms Ngoc Thanh Thuy Nguyen, be included for reconsideration as a dependant of the first named applicant.

2. 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 309 visa.

   DECISION

3. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211(2) of Schedule 2 to the Regulations

   ·cl.309.213 of Schedule 2 to the Regulations

   ·cl.309.221 of Schedule 2 to the Regulations

   ·cl. 309.222 of Schedule 2 to the Regulations

4. The Tribunal remits the application for reconsideration, with the direction that the second named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional) visa:

   ·cl.309.311 of Schedule 2 to the Regulations

   ·cl.309.312 of Schedule 2 to the Regulations

   ·cl. 309.321 of Schedule 2 to the Regulations

   ·cl. 309.222 of Schedule 2 to the Regulations

   Donna Petrovich
   Member

   
   

   ATTACHMENT  - Extract from Migration Regulations 1994

   1.15ASpouse

   (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).