Vo (Migration)

[2018] AATA 4400

Vo (Migration) [2018] AATA 4400 (18 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Vinh Vo

CASE NUMBER:  1821465

DIBP REFERENCE(S):  BCC2018/1065229

MEMBER:Hugh Sanderson

DATE:18 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 September 2018 at 7:40am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – unlawful non-citizen – limited information about the parties being in a genuine relationship – inconsistent evidence about daily routine and living arrangements – family support in home country – decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Scheduled 2 cl 820.211

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 24 July 2018 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 6 March 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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 cl.820.211(2)(d) because the delegate found that the applicant did not hold a substantive visa at the time of the application and did not satisfy the Schedule 3 criteria. Further, the delegate was not satisfied that there were compelling reasons for not applying those criteria.

   Background

4. The applicant is a citizen of Vietnam and is currently 23 years old. He first entered Australia on 17 July 2013 holding a Student visa. This visa was cancelled on 23 July 2015. He has not held a substantive visa since that date.

5. The sponsor of the applicant is Ngoc An Nhien Nguyen. She was born in Vietnam and is a citizen of Vietnam. She is currently 29 years old. She was previously married to Gia Nguyen who sponsored her for a Partner visa. She first entered Australia in September 2012 and was granted a Subclass 801 Partner visa in September 2015. She now has the right to reside permanently in Australia. She has a child from that relationship, Amy Truong, who is currently five years old. She divorced her husband in December 2016.

6. The sponsor has returned to Vietnam over the following periods:

   ·From 5 February 2016 to 3 March 2016; and

   ·From 25 November 2017 to 6 December 2017.

7. The parties claimed that they first met each other on 15 April 2016. They were married on 17 December 2017. There is nothing to indicate that the marriage between the parties is not valid. The current application was filed on 6 March 2018. The applicant was granted a Bridging visa at that time. The parties did not provide any statements in support of that application by themselves. The applicant did not provide any compelling reason for the grant of the visa apart from saying that he was in a relationship with the sponsor.

8. On 20 February 2018 the applicant was charged with aggravated break enter and commit a serious indictable offence with violence. On 4 June 2018 the applicant was charged with a number of offences associated with cultivating a commercial quantity of cannabis and dealing with proceeds of crime. These charges have yet to be finalised.

9. On 5 July 2018 the applicant’s Bridging visa was cancelled by the Department of Immigration. Since then, the applicant has been held in immigration detention. An application for a review of the decision to cancel the Bridging visa to the Tribunal (differently constituted) was not successful and the Department’s decision was affirmed.

10. On 11 July 2018 the Department wrote to the applicant noting that he did not meet the Schedule 3 criteria and inviting him to provide compelling reasons for not applying the criteria and further evidence as to his relationship with the sponsor. He was required to respond to this request within three working days. No response was received by the Department to this request for information.

11. The delegate who considered the application noted the following issues:

    ·As the applicant last held a substantive visa on 23 July 2015, more than two years prior to the filing of the application, he did not meet the Schedule 3 criteria;

    ·Only limited information was provided in support of the application as to the parties being in a genuine relationship;

    ·There was no evidence that the applicant was involved in the activities of the sponsor’s daughter or that any separation from the sponsor’s daughter would adversely affect her in any way;

    ·The applicant remained in Australia as an unlawful noncitizen for 2 ½ years before taking any steps to regularise his immigration status; and

    ·No further information was provided as to any compelling reasons as to the relationship between the parties.

12. Taking these matters into account, the delegate was not satisfied that the applicant satisfied the Schedule 3 criteria or that there were any compelling reasons for not applying those criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.211(2)(d) and refused the application.

    Information to the Tribunal

13. The applicant provided further information to the Tribunal including statements by the applicant and his sponsor and other friends and family members. Reports were provided from David Green, psychologist, dated 18 June 2018 and Dr Sandra Nguyen, counselling psychologist, dated 5 August 2018.

14. The report from Mr Green found that the sponsor had developed a depressive disorder and anxiety disorder as a direct consequence of her experience in her marriage with her first husband and her early childhood traumas. He was of the opinion she was experiencing a recurrence of the anxiety and depressive disorders due to the separation from the applicant. No interview with the sponsor’s child was conducted by Mr Green.

15. The report from Dr Nguyen stated that the sponsor had been referred to her from the applicant’s lawyers and she was provided with a copy of Mr Green’s report. She diagnosed the sponsor as suffering from a major depressive disorder and generalised anxiety disorder and a treatment plan was proposed.

16. The applicant appeared before the Tribunal on 5 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s cousin. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

17. At the start of the hearing, the Tribunal explained to the applicant the process under s.359AA of the Act. The Tribunal explained that it would be putting information to him which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and invite the applicant to comment on or respond to the information. If he required more time, he could request an adjournment.

18. The applicant provided details of his family in Vietnam. He said that they were all in good health and he has a good relationship with all of them.

19. The applicant said that he only studied in Australia for about two or three months then dropped out of the English language course he was enrolled in. He said that he stopped studying because of family issues: his parents had purchased land and property and had a debt to pay. He said that he did not return to Vietnam at that time because he wanted to spend time overseas and to support his family.

20. The Tribunal put to the applicant that it was not plausible that he ever had any intentions of studying in Australia if he only spent two or three months study before dropping out of any courses. The applicant said that he had paid for a six-month study but dropped out after two months because his English was not good and life was difficult. The Tribunal asked the applicant why he appealed the decision of the Department to cancel the visa if he still had not enrolled commenced any studies. The Tribunal put to the applicant that he had manipulated his circumstances to remain in Australia and which called into question the claims that he had made in respect of the current application. He said that he spoke to a migration agent and paid a lot of money for them to explain his situation to the Department but did not know what had happened.

21. The applicant provided details of the sponsor’s family in Vietnam. He said that he and the sponsor started living together in early January 2017. The Tribunal asked the applicant if the sponsor had travelled overseas over the course of the time that he had known her. He said that he thought that she had, but could not remember when she had travelled overseas. The Tribunal asked whether she had travelled overseas before or after they were married. The applicant said that the sponsor had travelled overseas a few months before they got married.

22. The Tribunal referred the applicant to the process under s.359AA of the Act set out above. The Tribunal referred to the sponsor’s movement records which show that she had departed Australia on 25 November 2017 returning on 6 December 2017, 11 days prior to their marriage. This was relevant as it was inconsistent with the information provided by the applicant and called into question whether he was in a genuine relationship with the sponsor, whether he knew about significant events in her life, and whether she depended on his emotional support.

23. The applicant responded by saying that he just couldn’t remember when she had gone overseas.

24. The Tribunal referred to the inconsistent dates provided by the applicant and the sponsor as to when they started to live together. It was noted that in the application they claim to have committed to a shared life together on 30 July 2017. In the statement provided by the sponsor to the Tribunal she claimed that they started to ‘live together as a couple since February 2017’, which is similar to what the applicant was now claiming. However, when the sponsor spoke to David Green, psychologist, she is reported to have said that they only started living together around June 2017.

25. The applicant said that he and the sponsor started renting a place together in July 2017. Before that the applicant was living in Burwood and the sponsor was living in a granny flat, but they would spend nights together in each other’s homes.

26. The Tribunal asked the applicant about the consultation the sponsor had with David Green. The applicant was not able to give any precise details of the consultation or any details of any treatment the sponsor received from David Green. He did not believe that she was taking any medication. He said that the sponsor sees a female psychologist and sees her every month. He did not know anything about the sponsor’s treatment or details of any discussions the sponsor had with her psychologist. When asked why she saw the psychologist the applicant said that the sponsor has lots of things to worry about so she sees the psychologist.

27. The applicant said that the sponsor’s child, Amy, has seen a child psychologist, but could not remember any details of this. He was not able to provide any details of Amy’s friends, simply saying that he drove her to school. He said that he’d never asked her who her friends were. He said that the sponsor was working either five or three days per week from 9:00am to 6:00pm. He said that while the sponsor was at work Amy was cared for at a day-care centre or by a person who looks after Amy.

28. The Tribunal referred to the treatment plan suggested in the report from Dr Nguyen. The applicant said that he had not heard anything about it.

29. The sponsor provided details of the applicant’s and her family in Vietnam. She said she returned to Vietnam just before her wedding to the applicant to spend time with her mother. She travelled with her daughter.

30. The applicant said that she saw David Green, psychologist, on one occasion. She said she decided see another psychologist because Mr Green did not speak Vietnamese. The Tribunal noted that the reports from both Mr Green and Dr Nguyen were stated to have been prepared because the sponsor was referred to them by their migration agent. The sponsor said that she had spoken to her GP, but was not referred to a Vietnamese psychologist so she got another one. She said that she had been seeing Dr Nguyen every two weeks, but is now seeing her only every four weeks. She said that she is not on any medication but has been given sleeping tablets which she tries not to take.

31. The sponsor said that she had been working in the same place for the last five years. She provided details of her work hours. She said that when she has been at work a nanny looks after Amy. She said that before she started her relationship with the applicant she was working seven days a week. She provided details of Amy’s care over that time. She said that she took Amy to a general practitioner once to speak to him, but Amy didn’t want to say anything and so she has never been to see a psychologist for any reason. She said that she has not seen her former husband for over two years.

32. The sponsor said that it would be very difficult if the applicant were required to return to Vietnam to file any offshore Partner visa application. She said it would be difficult for them both psychologically and financially. She said that her daughter expects the applicant to come home and it would not be easy for Amy to live in Vietnam.

33. The sponsor’s cousin, Thi Que Nguyen, gave evidence in support of the application. She said that the applicant and the sponsor need to be together because they are in love and it would be difficult for them to be separated. She said that although she provides support to the sponsor at the moment, she could not do this forever because she has her own family to support.

34. The applicant was given until 12 September 2018 to provide further submissions and documents. At the time of this decision, no further documents or submissions had been provided by the applicant to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

36. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and, if he does not, if there are compelling reasons for not applying those criteria.

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

37. 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).

38. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. 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.

    Criterion 3001

39. 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). In the circumstances of the applicant the relevant day is the last day he held a substantive visa.

40. The applicant’s last substantive visa was cancelled on 23 July 2015. He has not held a substantive visa since that time. This is more than two years prior to the filing of the application.

41. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

42. 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.

43. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise their 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]. 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.

44. The applicant’s migration history does him no credit. He arrived in Australia on a Student visa on 17 July 2013. He had enrolled in a six-month English language course. He dropped out of the course within three months and did not continue any studies in Australia. The Tribunal does not accept that the reason he dropped out of the course was because his parents had financial difficulties as they had borrowed money to purchase property. He claimed he remained in Australia because he felt he needed to help support his family.

45. A decision to come to Australia to study involves a long term financial commitment. That his family claimed to have incurred further debts because of the purchase of property soon after his arrival in Australia indicates that the applicant and his family had no intention of the applicant studying in Australia. The applicant acknowledged that he had paid for a six-month course in Australia, but only studied for two or three months. The financial situation of his family, therefore, was immaterial to his decision to cease studying.

46. The applicant’s student visa was finally cancelled on 23 July 2015. The applicant remained in Australia as an unlawful noncitizen. Prior to the cancellation of his visa, the applicant would have been aware that he was not complying with the Student visa granted to him because he was not undertaking any studies. The Tribunal finds further that the applicant would have been working full-time in further breach of the Student visa granted to him. The Tribunal finds that the applicant has shown a disregard for Australia’s immigration laws and that the circumstances of why he did not hold a substantive visa at the time of the application does not provide a compelling reason for not applying the Schedule 3 criteria.

47. The applicant has not provided any information which would indicate that he would have any difficulties in returning to Vietnam. His family remains living in Vietnam and own property there. His family have provided him support in the past and there is no information which would indicate that they would not provide him support if he were required to remain in Vietnam while any Partner visa application was being processed. The Tribunal is not satisfied that the circumstances the applicant would encounter if he were required to return to Vietnam provides a compelling reason for not applying the Schedule 3 criteria.

48. The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.

49. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has considered all the aspects of the relationship, including the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed when considering if there are compelling reasons for not applying the Schedule 3 criteria.

1. The parties provided inconsistent information as to various aspects of their relationship. In particular, they provided inconsistent information as to when they started living together. The Tribunal finds that the parties started an intimate relationship in about January 2017 and the applicant would occasionally stay overnight home of the sponsor, however, he retained his own home and they did not commence living together on a permanent basis until July 2017. As the applicant’s Bridging visa was cancelled in July 2018 and he has remained in immigration detention since then, the parties were only living together for a period of 12 months. Over this period, the sponsor travelled overseas with her daughter for a period of almost two weeks.

2. The applicant has provided two reports as to the mental state of the sponsor. The first report from David Green, psychologist was obtained at the request of the applicant’s migration agent. It appears Mr Green uncritically accepted the claims made by the sponsor. At one point in his assessment, Mr Green accepts that until he went on to a Bridging visa in March 2018 the applicant was a hard worker, worked consistently and gave money to the sponsor. At the same time, Mr Green accepts that the applicant had a close relationship with the sponsor’s daughter because he had not been working at all and looked after her all the time. He concludes that without the applicant, the sponsor is left without emotional and practical support. Mr Green provided no further counselling support for the sponsor after he completed his report.

3. The report from Dr Nguyen again uncritically accepts the information provided by the sponsor. It refers to the concern the sponsor has about how she would care for her daughter without the applicant and the effect on her daughter’s mental health from being separated from the applicant. No assessment of the sponsor’s daughter has, however, been carried out. The fact that the sponsor had previously made appropriate arrangements to care for her daughter without the applicant was also not commented on.

4. The Tribunal is not satisfied that any claimed dependence by the sponsor on the applicant or any aspect of the claimed relationship between the applicant and the sponsor provides a compelling reason for not applying the Schedule 3 criteria.

5. Any couple who are in a genuine relationship suffer some emotional and financial hardship when an offshore Partner visa application is required to be filed. The Tribunal does not accept that the circumstances that face the parties would be any different to any couple who are required to file an offshore Partner visa application. The sponsor has not had any contact with her former husband for over two years. Over that time, she has made arrangements to care for her daughter and financially support herself by obtaining paid employment. She was able to make arrangements for a person to care for her daughter while she was at work. There is nothing to indicate that she would not be able to continue to put these arrangements in place.

6. Over the 12 month period that the parties were living together the sponsor and her daughter travelled back to Vietnam together. This indicates that the parties are able to have periods apart. It also indicates that the sponsor and her daughter had been able and willing to return to Vietnam for short periods and that there would be no reason why they would not be able to visit the applicant in Vietnam if he were required to file an offshore Partner visa application. Again, this is the usual situation facing parties when an offshore Partner visa application is made.

7. The applicant displayed a lack of knowledge of various aspects of the sponsor’s life and also of her daughter’s life. He could not recall when the sponsor and her daughter returned to Vietnam during the course of their relationship. He believed they returned to Vietnam a few months before they were married, when in fact she returned to Vietnam immediately before their marriage, returning only 11 days prior to their marriage ceremony. The applicant also disclosed the lack of knowledge of the sponsor’s daughter’s life. He was unable to name any of her friends or other details of her activities. He stated that all he did was take her to school. The Tribunal does not accept this indicates the applicant has such a strong relationship with the sponsor’s daughter that any separation of the applicant from the sponsor’s daughter would cause the sponsor’s daughter any harm.

8. The applicant showed little knowledge of any treatment the sponsor may have received for any depression or anxiety she may have been suffering from. The applicant was not able to provide particulars of what counselling the sponsor has received. This indicates the applicant has not been involved in the sponsor’s treatment and has provided little support for the sponsor for whatever treatment she may have been getting.

9. The Tribunal takes into account the reports provided by Mr Green and Dr Nguyen as to the sponsor’s psychological condition and the nature of the parties relationship. Against this, is the evidence that the sponsor has been able to work and care for her daughter appropriately since she separated from her first husband, the relatively short period of time the parties have actually lived together, the fact that the applicant has not been able to show any significant degree of care or relationship with the sponsor’s daughter, the fact that the sponsor has been able to establish a support network with other people, including the applicant’s cousin, and to ensure her daughter is cared for while she is at work. As the sponsor has previously travelled overseas with her daughter, there appears to be no reason why she would not be able to do this and spend time with the applicant in Vietnam if he were required to file an offshore Partner visa application.

10. In all the circumstances, the Tribunal is not satisfied that there are any aspects of the claimed relationship between the applicant and the sponsor and her daughter which would provide a compelling reason for not applying the Schedule 3 criteria.

11. The Tribunal has assessed the circumstances of the applicant and the sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that the individual circumstances of the parties and in particular the claims made by the parties when considered on an individual basis provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal is not satisfied that when considered in combination the total circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria.

12. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is nothing before the Tribunal to indicate the applicant would meet any of the alternate criteria in cl.820.211.

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

    DECISION

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

    Hugh Sanderson
    Member