TRIEU (Migration)

[2020] AATA 4716

TRIEU (Migration) [2020] AATA 4716 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Duc TRIEU

CASE NUMBER:  1908902

HOME AFFAIRS REFERENCE(S):          BCC2018/1215466

MEMBER:Nicholas McGowan

DATE:13 November 2020

PLACE OF DECISION:  Sydney

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

Statement made November 13 2020 at 10:51am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – lengthy period as unlawful non-citizen – compelling reasons for not applying criteria – sponsor’s mental health and young child’s medical condition – applicant’s financial and emotional support – cost of travelling to home country together if criterion not waived – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d), Schedule 3, criterion 3001

CASES

Babicci v MIMIA (2005) 141 FCR 285

MZYPZ v MIAC [2012] FCA 478

Waensila v MIBP [2016] FCAFC 32

WRITTEN statement of decision and reasons

1. This is a review of a decision dated 3 April 2019 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 14 March 2018 on the basis of his relationship with his sponsor. 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 applicant lodged an application for review (of the refusal) with this Tribunal on 11 April 2019.

   Consideration of claims and evidence

   Migration history

2. According to the delegate’s refusal Decision record dated 3 April 2019, a copy of which the applicant has provided the Tribunal, the applicant first entered Australia on a student visa on 20 July 2011. Two further (onshore) student visas were granted to the applicant up until the expiry of the second onshore visa on 27 August 2014. At that time the applicant ceased to hole a substantive visa. On 14 March 2018 the applicant lodged a partner visa application, the refusal of which (on 3 April 2019) is the subject of this review.

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

3. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d). As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

4. While it is not in dispute that the applicant does not meet the Schedule 3 criteria, the Tribunal has nonetheless considered the matter (as detailed below) for completeness sake.

5. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. Departmental records, as outlined in the Decision record dated 3 April 2019, show the applicant’s last substantive visa ceased on 22 August 2014. As the visa application was not made within 28 days of the relevant day, therefore the applicant does not satisfy criterion 3001. To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 Criteria 3001, 3003 and 3004. As the applicant has not met criterion 3001, the Tribunal is not required to assess the applicant against the remaining Schedule 3 criteria.

   Compelling reasons

6. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

7. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24].

8. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

9. In the Decision record of the delegate dated 3 April 2019, the following circumstances were identified.

   ·     The genuine relationship.

   ·     Circumstances beyond the applicant’s control which led to not having a substantive visa.

   ·     The anticipated impact on the sponsor’s health.

   ·     The anticipated financial hardship resulting from the applicant being required to go offshore.

   Hearing conducted 12 November 2020

10. As the Tribunal was unable to come to a favourable decision on the ‘papers’ alone, it invited the applicant, sponsor and any witnesses, to a hearing into the review.

11. The applicant and his sponsor attended a hearing into the review conducted on 12 November 2020, at which oral evidence and argument was provided as outlined below.

12. The applicant’s agent also provided the Tribunal with a pre-hearing submission dated 10 November 2020, in which he further outlined/detailed (in paragraphs (a) through to (o), the circumstances claimed by the parties (in respect to the Tribunal’s consideration of circumstances relevant to the Schedule 3 waiver).

13. The particulars of the representative’s submission (referred to above), including the circumstances referred to above in the Delegate’s Decision record (including a submission from the representative dated 14 March 2018 to the Department) have each been considered.

    Oral evidence and arguments provided at the hearing of 12 November 2020

14. The applicant told the Tribunal he believed the Tribunal has all the evidence it needed. The applicant told the Tribunal he hoped the Tribunal will consider his application. The applicant told the Tribunal he understands the importance of a child having his father when he grows up. The applicant talked about his own experience growing up. The applicant told the Tribunal his having to go offshore to progress his migration outcome would create a financial burden. The applicant told the Tribunal he had concerns with regards to the health system and environment in Vietnam. The applicant outlined how the cost associated with the visa process could cost as much as $50,000.00-$40,000.00. The applicant also expressed concern with the period it would take for the department to process his migration application offshore.

15. The applicant’s sponsor, Mrs Bao Phi Nguyen, told the Tribunal she wished for her husband to stay in Australia with her, and her child. The witness says she fear damage to her and her son, if her husband is required to return to Vietnam. The child is young, and need love and care from both parents, mother and father. Her son suffers from eczema, and her husband helps during the night. The witness also said she relied on the financial support of her husband, who is the breadwinner. The witness said she suffered from depression after the birth of their son. The witness said she really needs her husband by her side to share the emotions between herself and her husband. The witness said, if she has to return to Vietnam with her husband, it would be difficult during the coivd-19 pandemic. The witness said the cost of their having to returning to Vietnam would cost them in the order of $40,000.00, and asked the rhetoric question, where would we get the money for this. The witness said the environment in Vietnam is polluted, and health system not that good, and her son has not got a fully developed immune system. The witness said during the period they may be separated, they would not know when the applicant (and/or sponsor and their child) could return to Australia. The witness said she is a “weak women” and needs her husband to support her. The witness said it is her wish for her husband to stay back to support her. The Tribunal sked whether her son had been diagnosed with nay medical condition, or any prescribed any medication. The witness told the Tribunal her son has been the doctor and has eczema, which is treated with a prescription ointment. The Tribunal asked the witness who live in the home with her husband and son. The witness said they live alone. The Tribunal asked whether the witness had family here in Australia. The witness said she had her parents, elder sister and brother in Australia. The witness stated she sees then infrequently, as her parents of are age, and her siblings are some distance away. The witness said her sister live in Bonnyring, and parents (together with her brother) live in Kings Valley. The witness lives in Carley Heights. The travel time between the witness’s parents’ home and her own home is around 20 minutes by car. The Tribunal asked, if her husband is required to return to Vietnam, would she return with him. The witness told the Tribunal she will go back with him because she does not want the family separated.

16. The Tribunal received oral evidence from the applicant’s friend, Ms Mai Thanh Pham, who was a close friend of the applicant’s father. The witness said the applicant is hard-working, genuine, loves his family, is a family man, and the parties are good together.

17. The Tribunal received oral evidence from the applicant’s mother-in-law, Mrs Thi Ngoc Yen Nguyen. The witness told the Tribunal, she wished that her daughter has a united family. The witness asked the Tribunal to grant this. The witness asked the Tribunal to consider and allow her daughter and husband to be united. The witness said her daughter (the applicant’s sponsor) sometimes gets sick.

    Analysis

18. The Tribunal, in coming to the following analysis, has had regard to the applicant’s sponsor’s oral evidence before this Tribunal, that if the applicant were required to go offshore to progress his migration to Australia, she and their child would go with him. This being the case, any anticipated emotional or psychological hardship that may have flowed from any temporary separation, is significantly ameliorated. Hence, while some emotional and psychological hardship may still follow, for any number of reasons, the Tribunal has not been satisfied any is so forceful such that is compels the Tribunal to not apply the Schedule 3 criteria. Likewise, the proposed accompaniment of the child and mother with the applicant, leads the Tribunal to find that in those circumstances, and given the very young age of the child, none of these circumstances compels the Tribunal to not apply the Schedule 3 criteria.

19. Further, the applicant has not satisfied the Tribunal there is something so forceful about the length, or nature of the parties relationship, such that this Tribunal finds these circusmatcnes compelling reasons to not apply the Schedule 3 criteria.

20. Likewise, there is nothing in the evidence that satisfies the Tribunal the hardship any and all would suffer by returning to Vietnam, including any claims with respect to that country’s healthcare or environment, or the risk of covid-19, somehow gives rise and compels the Tribunal to not apply the Schedule 3 criteria. In this regard the Tribunal notes, the parties can take individual measures to protect themselves from cvoid-19,and this further reduces any risk to any of them contracting the virus.

21. The Tribunal has considered the financial hardship the applicant and sponsor anticipate. The Tribunal accepts that while some costs (and hardship) can be expected, the parties take steps to minimise and mitigate any hardship, including renting their home in Australia. Ultimately, the Tribunal has not been satisfied any such anticipated financial hardship is so forceful a circumstance in their matter such that the Tribunal should not apply the Schedule 3 criteria.

22. The Tribunal has considered each circumstance as outlined above. It has also considered them collectively. It has not been satisfied that further to the purpose of granting the visa, the circumstances as supported by the evidence satisfy the Tribunal there is a compelling reason to not apply the Schedule 3 criteria.

23. None of the other reasons, as contained in the various submissions, as submitted in the documentary evidence, or discussed at the Tribunal’s hearing (including the duration of any temporary period offshore for processing purposes) were somehow so forceful a circumstance that the Tribunal was satisfied they were compelling circumstance(s) to not apply the Schedule 3 criteria in this matter.

    Findings

24. The applicant has not satisfied the Tribunal that there is a compelling reason(s) for not applying the Schedule 3 criteria in this matter.

25. Given the above, the applicant does not meet cl.820.211(2)(d)(ii).

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

    Decision

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

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.