Tran (Migration)

[2022] AATA 1791

Tran (Migration) [2022] AATA 1791 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ngoc Dung Tran

VISA APPLICANT:  Mrs Thi Ngoc Can Pham

REPRESENTATIVE:  Mrs Hanh Thi Bich Ho (MARN: 1467192)

CASE NUMBER:  1836544

DIBP REFERENCE(S):  BCC2017/3747379

MEMBER:Mila Foster

DATE:17 March 2022

PLACE OF DECISION:  Sydney

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

·cl 309.211 of Schedule 2 to the Regulations,

·cl 309.213 of Schedule 2 to the Regulations,

·cl 309.221 of Schedule 2 to the Regulations, and

·cl 309.222 of Schedule 2 to the Regulations.

Statement made on 17 March 2022 at 1:44pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – sponsorship limitations – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– sponsor had sponsored his two former spouses – longstanding nature of the parties’ relationship – compelling circumstances exist – Tribunal approves the review applicant’s sponsorship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.15A,1.20J, Schedule 2, cls 309.211, 309.213, 309.221, 309.222

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 4 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 12 October 2017 on the basis of her spouse relationship with 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the time of decision criterion in cl 309.222 because the sponsorship limitation in r 1.20J applied.

4. The review applicant appeared before the Tribunal via video on 17 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The review applicant appointed a migration agent to represent him in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the sponsorship limitation in r 1.20J should be waived and cl 309.222 is met. Clause 309.222 requires the sponsorship referred to in cl 309.213 to be approved and in force. In turn, cl 309.213 specifies who must sponsor the visa applicant. Relevantly, a visa applicant referred to in cl 309.211(2), that is, the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen must be sponsored by that person.

8. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, evidence and submissions presented on review, Department movement records, and Department and Tribunal files relating to the visa application made by a previous spouse of the review applicant.

   Background and development of relationship

9. It is claimed that the visa applicant is a 46-year-old citizen and resident of Vietnam. Her parents are deceased, her widowed mother having died after the visa application was lodged. She has one sibling, a married brother who also resides in Vietnam. It is claimed that the review applicant is a 63-year-old who was born in Vietnam, was granted permanent residence in Australia on 20 August 1990 and became an Australian citizen on 26 May 1993. He lives with his widowed mother and has 7 siblings. His mother and siblings are all residents and citizens of Australia.

10. The parties claim they met after the visa applicant placed a personal notice in a Vietnamese magazine in February 2013 seeking a husband in Australia. The review applicant contacted the visa applicant by telephone in response to the notice. After a period of communicating by telephone the review applicant travelled to Vietnam to meet the visa applicant. They met in person on 15 May 2013, became engaged and had their wedding ceremony on 4 August 2015, and registered their marriage in Vietnam on 20 June 2017.

11. Prior to the parties’ marriage, the visa applicant had not been married or in a de facto relationship. The review applicant had two prior marriages both of which ended by divorce. He claims to have sponsored both former spouses for visas. He had two sons with his first former wife both of whom are residents and citizens of Australia.

    Whether the parties are in a spouse relationship

12. 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.

13. The visa application included a photocopy of an Australian citizenship certificate which states that the review applicant was granted citizenship on 26 May 1993. The Tribunal thus finds that the review applicant has been an Australian citizen since that date.

14. ‘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.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

16. Submitted in support of the visa application was a photocopy of the parties’ Vietnamese marriage certificate. The certificate states that their marriage was registered in Vietnam on 20 June 2017. The review applicant had been married and divorced twice before the parties’ marriage. Photocopies of divorce certificates relating to the review applicant’s previous marriages to Thi Hao Nguyen and Thi Bich Lien Ngo were included in the visa application. Based on the divorce certificates, the review applicant was unmarried when the parties married. On the evidence before it, the Tribunal is satisfied that the parties were 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?

17. There is a considerable amount of documentary and photographic evidence before the Tribunal about the parties’ relationship. The evidence includes the following:

    a.written statements made by the parties and family members,

    b.receipts for money transfers made by the review applicant to the visa applicant,

    c.photographs of the parties together and with family members in various settings and on various occasions in Vietnam,

    d.screenshots of telephone communication between the parties (text and video),

    e.photocopies of written communication between the parties such as birthday cards,

    f.attestations by local authorities in Vietnam that the review applicant resided with the visa applicant on various occasions,

    g.hotel receipts and plane boarding passes relating to trips and travel undertaken by the parties within Vietnam and abroad (Indonesia and Singapore),

    h.shipping receipts for gifts the parties sent each other,

    i.medical documents about the visa applicant’s efforts to increase her chances of conceiving a child with the review applicant, and

    j.medical records relating to the visa applicant and his mother.

18. The evidence about the financial aspects of the parties’ relationship is limited. There is no evidence of joint ownership of assets or joint liabilities. There does not appear to be any pooling of financial resources, or evidence that either party owes the other any legal obligations nor evidence of day-to-day household expenses. However, given the parties reside in different countries the Tribunal has not drawn any adverse inferences from this. There is evidence that the review applicant has sent the visa applicant money during their relationship. The Tribunal has given this some weight.

19. The parties are living in different countries and so have not established a joint household together. They do not have joint responsibility for the care and support of any children. However, it is claimed that from October 2013 the parties lived together when the review applicant visited the visa applicant in Vietnam. There is independent corroboration of this in the form of the temporary residence attestations made by local Vietnamese authorities. It is claimed that the review applicant visited the visa applicant twice a year until early 2020 – each visit being approximately a few weeks. Department movement records confirm the review applicant was outside Australia as claimed. The Tribunal notes that the COVID-19 pandemic has largely prevented overseas travel since about March 2020. There is no evidence of the basis on which the parties shared housework when they lived together. However, the evidence indicates the parties have lived together for a noteworthy period of time during their relationship despite permanently residing in different countries and hence the Tribunal has given this aspect of their relationship some weight.

20. There is evidence indicating that the parties represent themselves to other people as being married to each other. The evidence includes photographs of their wedding and written statements from the review applicant’s mother and one of his brothers. There is considerable evidence of various joint social activities the parties undertook together including travelling, sightseeing, and socialising with family. This is indicative of a genuine spouse relationship and the Tribunal has given this aspect of their relationship significant weight.

21. The parties claim they have been in a relationship for almost 9 years, married for about 6½ years and have lived together since October 2013 when the review applicant has visited the visa applicant. These are significant periods of time indicating a substantial commitment. A sizable amount of evidence of contact between the parties since they met has been provided. This indicates the parties draw companionship and emotional support from each other and view their relationship as long-term. The Tribunal has given this aspect of their relationship considerable weight.

22. On the evidence before it and having regard to the above considerations in r.1.15A(3), the Tribunal is satisfied that at the time of application the parties had a mutual commitment to shared life to the exclusion of others, their relationship was genuine and continuing, and they were not living separately and apart on a permanent basis. Hence, the Tribunal finds that at the time of application, the visa applicant was the spouse of the review applicant within the meaning of s.5F(2). The visa applicant thus meets the requirements of cl 309.211(2).

23. Further, having met cl 309.211(2) the visa applicant satisfies cl 309.211. A visa applicant who continues to meet the criterion in cl 309.211 at the time of decision meets cl 309.221. The Tribunal is satisfied on the evidence before and having regard to the above considerations in r.1.15A(3), that the visa applicant continues to meet the requirements of cl 309.211 at the time of its decision. The visa applicant has thus met cl 309.221.

    Are the sponsorship requirements met?

24. Clause 309.213 requires the visa applicant referred to in cl 309.211(2) to be sponsored by their spouse or de factor partner where such person has turned 18. At the time of decision, this sponsorship must have been approved and still be in force, and 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.

    Sponsorship criterion at time of application

25. The review applicant, as all his personal documents indicate, is 63 years old. Submitted in support of the visa application was a sponsorship form completed by the review applicant. Hence, the Tribunal finds that the visa applicant was sponsored by the review applicant who had turned 18 at the time of application and cl 309.213 is met.

    Sponsorship criterion at time of decision

26. The review applicant has not withdrawn his sponsorship thus the Tribunal finds that it is still in force. Further, he consented in the sponsorship form to disclosure of the kind referred to in cl 309.222.

27. Approval of sponsorship is subject to a number of limitations contained in the Regulations.  

28. Under r 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a 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 5 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: r.1.20J(2). 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.

29. The review applicant stated in the sponsorship form that he had sponsored his two former spouses. There are no Department records on the Department file relating to the visa applicant’s application regarding the review applicant’s previous sponsorships nor referred to in the delegate’s decision record.

30. The review applicant stated in the sponsorship form that his first wife, Ms Nguyen, lodged her application in 1993. In a document titled ‘Statement Past Relationships’ submitted in support of the visa application, he said Ms Nguyen’s visa was granted in 1993.  Department movement records indicate that Ms Nguyen was granted a permanent partner visa on 10 August 1993. The Tribunal finds on the basis of the review applicant’s evidence and the movement record that the review applicant sponsored his first wife, Ms Nguyen, for a partner visa which she was granted.

31. In the sponsorship form the review applicant stated that his second wife, Ms Ngo lodged her application in 2003. According to Tribunal records[1] and the record of a decision made by the Migration Review Tribunal (MRT) on 25 May 2005 in relation to a review application lodged by the review applicant, Ms Ngo applied for a provisional partner visa on 4 February 2004, he sponsored for her for the visa, a delegate refused her the visa on 8 September 2004 on the basis that the relationship was not genuine and continuing, and the MRT remitted the matter to the Department for reconsideration on the basis that the review applicant and Ms Ngo were in a spouse relationship. Department movement records indicate Ms Ngo was granted a provisional partner visa on 17 November 2005 (and then a permanent partner visa on 30 January 2012). The Tribunal thus finds that the review applicant sponsored his second wife, Ms Ngo, for a partner visa which she was granted.

    [1] MRT file number N04/06794.

32. Therefore, the two approved sponsorships in a lifetime limitation in r 1.20J applies to the review applicant unless there are compelling circumstances affecting him.

33. In the visa application, waiver of the limitation in r 1.20J was requested on the basis that the parties’ relationship was long-standing. At that stage the parties had been married for a little over two years. On review additional circumstances said to give rise to compelling circumstances affecting the sponsor were presented. They included the following:

    a.the review applicant’s previous marriages had been long and genuine,

    b.the review applicant’s second marriage ended because he was abandoned by his second wife for another man she had been having an affair with,

    c.the review applicant had been working for the NSW Department Health since 2007 and refusal of the visa would mean travelling to Vietnam only when he could take annual leave,

    d.at his age, fly internationally was becoming less convenient and healthy,

    e.the review applicant would not be able to get employment in Vietnam,

    f.as the review applicant was getting older he would need the medical system which was superior in Australia to that in Vietnam,

    g.it was unreasonable to have to have a long-distance relationship for rest of his life,

    h.the review applicant lives with and is responsible for daily care of his 91-year-old mother, and

    i.the review applicant has no relatives in Vietnam other than the visa applicant and his ties to Australia are strong – including his siblings and sons.

34. In relation to the review applicant’s first marriage, there is no evidence to suggest that it was not genuine. The review applicant claims and birth certificates submitted on review indicate, that the review applicant and his first wife had a child together while they were married (and a second child after they divorced when they attempted reconciliation). This suggests theirs was a genuine relationship and hence is relevant to the Tribunal’s consideration.

35. However, there is evidence before the Tribunal which raises doubts about the genuineness of the review applicant’s second marriage. At the hearing the Tribunal asked the review applicant whether Ms Ngo had any difficulty obtaining her partner visa. The review applicant replied that she did not. However, as indicated above, Ms Ngo was refused a provisional partner visa in the first instance. Further, the Tribunal has before it the Department file relating to Ms Ngo’s partner visa application[2] which raised doubts about the genuineness of the relationship. For example, the file contains a record regarding an allegation received by the Department that the relationship was contrived for the purposes of Ms Ngo gaining permanent residence and that the review applicant was paid $30,000. The file also contains a detailed record of a visit undertaken by Departmental officers on 23 January 2008 to the premises where the review applicant and Ms Ngo claimed to be residing as well as a record a conversation between the review applicant and one of the officers the day after the visit. These records indicate that the officers found Ms Ngo in sleepwear and a man at the premises, who had been sleeping in the bed Ms Ngo claimed to share with the review applicant, in a state of undress. Further, the records indicate that the review applicant and Ms Ngo were not living together at the premises. Additionally, the review applicant and Ms Ngo divorced within two years of Ms Ngo being granted permanent residence. After the hearing, the review applicant was invited to comment on this information pursuant to s 359A. The Tribunal has considered the review applicant’s response but continues to hold doubts about the genuineness of that relationship even though Ms Ngo was granted a permanent visa. The basis on which she was granted the visa in light of the allegation and adverse information arising from the visit and phone call with the review applicant is not apparent to the Tribunal from the Department file. The Tribunal thus does not consider the second marriage as giving rise to compelling reasons affecting the sponsor.

    [2] Department file number

1. Insofar as the parties’ relationship is concerned, the Tribunal regards it as a longstanding one given its findings above. Added to this the Tribunal accepts that the review applicant has significant ties to Australia. He has been residing here since 1990 – a considerable period of time. While is two adult children were born and reside here, no statements from them have been provided to verify the extent of their contact with the review applicant. However, the review applicant claims, and documentary evidence submitted on review indicates, that he resides with and cares for his 91-year-old mother. Written and documentary evidence indicates that the review applicant and his mother travelled to Vietnam and met the visa applicant. The review applicant claims all 7 of his siblings live in Australia. One of his siblings has provided supporting statements in connection with the visa application and the review. Evidence included in the visa application and submitted on review confirms that the review applicant has been employed on a permanent, full-time basis by the NSW Department of Health since 2007. The Tribunal is prepared to accept that at the age of 63 it could be challenging to gain similar employment in Vietnam. The Tribunal finds that the review applicant’s ties to Australia and most particularly the longstanding nature of the parties’ relationship, amount to compelling circumstances affecting the sponsor such that the limitation in r 1.20J should not be applied.

2. Regulation 1.20KA sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. The review applicant indicated in the sponsorship form that he has not held a parent visa. Department movement records confirm this. The Tribunal thus finds r 1.20KA does not apply to limit approval of the review applicant’s sponsorship.

3. Finally, limits are 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. According to an Australian Federal Police National Clearance Certificate submitted in support of the visa application, there are no disclosable court outcomes recorded in relation to the review applicant. Hence, the Tribunal finds that r 1.20KB and r 1.20KC do not apply to limit approval of the sponsorship.

4. In light of the above, the Tribunal approves the review applicant’s sponsorship and finds that the requirements of cl 309.222 are met.

   Conclusion

5. Given the preceding findings, 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

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

   ·cl.309.211 of Schedule 2 to the Regulations,

   ·cl.309.213 of Schedule 2 to the Regulations,

   ·cl 309.221 of Schedule 2 to the Regulations, and

   ·cl 309.222 of Schedule 2 to the Regulations.

   Mila Foster
   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).