Trinh (Migration)

[2019] AATA 2162

Trinh (Migration) [2019] AATA 2162 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Huyen Trinh

CASE NUMBER:  1821966

HOME AFFAIRS REFERENCE(S):           BCC2016/1884297

MEMBER:Stavros Georgiadis

DATE:20 March 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 20 March 2019 at 5:45pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previously approved sponsorships – breakdown of relationship – sponsorship withdrawal – compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 820.221

CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

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 (the Act).

2. The applicant applied for the visa on 30 May 2016 on the basis of her relationship with her Australian sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221(4) as the requirements of Regulation 1.20J precluded the approval of the sponsorship.

4. The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant and sponsor were and are in a spouse relationship and whether there are compelling reasons affecting the sponsor such that the sponsorship limitation in r.1.20J does not apply.

   Is the applicant sponsored?

7. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’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).

8. At the time of decision, cl.820.221(4) requires that the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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.820.221.

9. Relevantly here, 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, and in r.1.20KA which 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 for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

10. 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).

11. Departmental records show that the present case is affected by the sponsorship limitation in r.1.20J. As acknowledged by the applicant at the hearing, the sponsor has had two previously approved sponsorships or nominations that led to a grant of partner visas. This was noted by the delegate, and confirmed in the applicant’s oral evidence at hearing.  The first sponsorship was for Yi Zhang which commenced on 18 February 2002 and resulted in the grant of a permanent visa. There was one child of that relationship now approximately 14 years of age. The second sponsorship was for Phuong Ngoc Thi Nguyen which commenced on 2 August 2010 and which also resulted in the grant of a permanent visa. There were three children of that relationship aged approximately 5, 7 and 9 years.

12. Regulation 1.20J classifies the following policy, and applies only to visa applications made on or after 1 November 1996 (reg. 1.20J(3)):

    • at most, a person may enter into 2 approved spouse, de facto partner, interdependent partner or prospective spouse (fiancé) sponsorships (reg. 1.20J(1)(a))
    • even if regulation 1.20J(1)(a) is met, a person who has sponsored/nominated a person as a spouse, de facto partner, fiancé or interdependent partner cannot have another sponsorship approved under any of these visa categories until at least 5 years after the first visa application was made (reg. 1.20J(1)(b))
    • persons who themselves have been sponsored/nominated as a spouse, de facto partner fiancé or interdependent partner cannot sponsor a partner under any of those visa categories until at least 5 years after their own visa application was made (reg. 1.20J(1)(c)).

13. These requirements may be waived in compelling circumstances. Regulation 1.20J (2) allows approval of a sponsorship that would otherwise fail to meet regulation 1.20J (1) requirements if there are ‘compelling circumstances’ affecting the sponsor.

14. The Tribunal finds from the above that the sponsor, Mr Lionel Thomas Owen, has already held two previously approved sponsorships that each led to the grant of a partner visa. He has made a third application on 30 May 2016 regarding sponsorship of the visa applicant whom he married on 11 May 2016. At the time, departmental records show that the sponsor was subject to sponsorship limitations as set out under Regulation1.20J(1)(b). As the Tribunal accepts that the sponsor has previously held in a lifetime, two approved sponsorships that lead to a grant of a partner visa, the sponsorship limitation in r.1.20J does apply to him to prevent any further sponsorship.

15. As the sponsor does not meet Regulation 1.20J(1), the applicant and sponsor must establish the existence of compelling circumstances affecting the sponsor to satisfy the waiver discretionary provision at Regulation 1.20J(2).

16. The expression 'compelling circumstances' is not defined in the legislation. Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine. 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.

17. The Tribunal has considered the arguments regarding any compelling reasons affecting the sponsor made in submissions to the Department and in oral evidence to the Tribunal. In the course of the hearing the applicant disclosed to the Tribunal that she and her sponsor had parted ways from 24 January 2019 when they separated.  She has been living away from the sponsor in different premises since that date, and they have not reconciled.

18. At the hearing, in accordance with the procedure set out under s.359AA of the Act, the Tribunal put to the applicant that it wished to invite her to comment on, or respond to, adverse information that subject to her comments would be the reason or part of the reason, for affirming the decision under review - to refuse to grant the Subclass 820 visa. The Tribunal explained that the applicant would be asked to comment on, or respond to this information and would be entitled to seek additional time to respond or respond to the information and that the Tribunal would consider this. The Tribunal informed the applicant that a certificate and notification regarding the Tribunal’s discretion to disclose certain information under s.376 of the Act (the s.376 certificate) had been issued by the Department.  The s.376 certificate certifies that disclosure of certain material would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.

19. The Tribunal considers the s.376 certificate is not valid because the source of the information, who is the applicant’s sponsor, specifically states that he does not wish to remain anonymous and therefore, leads the Tribunal to find that disclosure of the information is not contrary to the public interest. The Tribunal explained that affirming the decision under review is a consequence of relying on information outlined in the certificate provided to the Department on 22 February 2019 in making its decision, and in particular, adverse information that the sponsor had withdrawn his sponsorship of the applicant and that he had advised the Department of this.

20. The applicant responded immediately without seeking additional time to comment on, or respond to the information put to her.  She confirmed that her sponsor had indeed withdrawn his sponsorship after they separated in January 2019.  He did this by sending a SMS text message to her and the Department’s records show the sponsor advised the Department of his sponsorship withdrawal on 8 February 2019.  In response, the applicant also conceded that she had been working as a kitchen hand and subsequently in a Vietnamese food outlet take-away shop making bread rolls and beef noodles. She disclosed that she works on average, 7 to 10 hours per week, but was otherwise financially dependent on her sponsor.  She explained that her sponsor did not want her to work or study and took active steps to attempt to prevent this.  She said her former sponsor had threatened to withdraw his sponsorship if she did not comply with his wishes. She said this included having to perform ‘sexual acting’ and other tasks that made her anxious.

21. The Tribunal notes that there is no evidence of any intervention order in place for any domestic abuse or any evidence of any steps taken for one to be applied in this case.  The applicant explained that she continues to live apart from her former sponsor in new premises offered to her by a client of the shop she works in and that once the Tribunal proceedings are concluded, she will formally commence divorce proceedings against her former sponsor.

22. The Tribunal has considered the applicant’s oral evidence of the circumstances leading to the breakdown of the relationship including what she described as her ‘miserable life’ with Mr Owen. The Tribunal places weight on the fact that the applicant’s spouse has now withdrawn sponsorship for the purposes of the grant of a Subclass 820 visa.  The Tribunal is satisfied that there is no ongoing or continuing spousal relationship. The Tribunal places weight on the applicant’s response, when asked, regarding any compelling circumstances affecting the sponsor to satisfy the waiver provision under Regulation 1.20J(2).  The Tribunal asked the applicant to consider any compelling circumstances affecting the sponsor as the legislation required a consideration of this. The Tribunal notes that there has been no child of this relationship and also no death of the previous partner.  With regard to the Department’s PAM 3 guidelines for consideration of compelling circumstances, the applicant confirmed when asked that:

    • the applicant and sponsor have no dependent child who is dependent on each of them;
    • she did not leave the sponsor with children dependent on the sponsor requiring care and support.

23. The Tribunal notes also that the new relationship is less than 3 years of marriage in total which it considers in not a long term partner relationship.  The Tribunal accepts the applicant’s evidence that there are no compelling circumstances affecting the sponsor to satisfy the waiver provision at Regulation 1.20J(2).  

24. Having regard to all of these circumstances above the Tribunal is satisfied there are not compelling reasons affecting the sponsor, and the sponsorship cannot be approved because of the limitation in operation under Regulation 1.20J(1).

25. On the evidence before the Tribunal the requirements of cl.820.221(4) are not met.

26. For the reasons above, the applicant does not satisfy the criteria in cl.820.221 for the grant of the visa.

    DECISION

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

    Stavros Georgiadis
    Member