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Cao, Quang Xuan [2002] MRTA 5812 (2 October 2002)

Last Updated: 7 March 2003

[2002] MRTA 5812

CATCHWORDS: Review of visa refusal - Subclass 820 - failure to satisfy Schedule 3 criterion 3001 - whether Schedule 3 criteria should be waived - genuine relationship

REVIEW APPLICANT: Quang Xuan Cao

VISA APPLICANT: As Above

TRIBUNAL: Migration Review Tribunal

PRESIDING MEMBER: John Cipolla

MRT FILE NUMBER: N01/05913

DEPT FILE NUMBER: CLF2001/ 17614 

DATE OF DECISION: 2 October 2002

AT: Sydney

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Partner (Temporary) (Class UK)visa.

STATEMENT OF DECISION

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) to refuse to grant a Partner (Temporary) (Class UK) visa. Mr Quang Xuan Cao (the visa applicant), a national of Vietnam, born on 11 August 1974, applied for permanent residence on spouse grounds on 4 April 2001.

2. The visa application form completed by the applicant incorporated an application for a permanent visa, a Partner (Residence) (Class BS) visa, which normally cannot be granted until 2 years have elapsed since the lodgement of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK) visa, which can be granted immediately, to permit stay until a decision is made on the permanent visa. This process is intended to test whether the relationship is continuing, 2 years after the visa application, before permanent residence is confirmed. The delegate's decision to refuse to grant the visa was made on 19 September 2001.

JURISDICTION AND STANDING

3. The visa applicant lodged an application for review with the Migration Review Tribunal (the Tribunal) on 5 October 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

4. The visa applicant lodged one application for review form and paid one fee and there is some question as to which of the two decisions is to be reviewed by the Tribunal - the decision to refuse to grant a Class UK visa or the decision to refuse to grant a Class BS visa. The obvious intention behind the application for review is to seek a review of whatever decisions prevented the visa applicant from gaining residence on spouse grounds, and the necessary first step is the review of the decision to refuse to grant the Class UK visa. The Tribunal is therefore proceeding on the basis that this review is in respect of the decision to refuse to grant the Class UK visa.

LEGISLATION AND POLICY

5. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

6. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

7. The criteria and policy immediately relevant to this review are:

Legislation:

Regulation 1.15A of the Regulations

Regulation 1.20J of the Regulations

Item 1214C of Schedule 1 to the Regulations

Part 820 of Schedule 2 to the Regulations

Items 3001, 3003 and 3004 of Schedule 3 to the Regulations

Directions:

Nil

Policy:

Procedures Advice Manual 3: Regulation 1.15A - Interpretation - Spouse

Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas

Procedures Advice Manual 3: Schedule 2 - Spouse - Visa 820

Migration Series Instruction (MSI) 237: Schedule 3: Additional Criteria Applicable to Unlawful Non-citizens and Certain Bridging Visa Classes

Cases:

Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788

Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, Loughlin J, 29 November 1991)

Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204

8. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

9. In this case, as the visa applicant was not the holder of a substantive visa at the time of application for the Partner (Temporary) (Class UK) visa, thus he must satisfy paragraph 820.211(2)(d) of the Regulations. In order to satisfy this paragraph the visa applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004 unless there are compelling circumstances for not applying those criteria.

10. In particular, the criterion relevant to this review is criterion 3001 which states:

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.

EVIDENCE

11. The Tribunal has the following documents:

T1 - Tribunal case file N01/05913.

D1 - Department case file CLF2001/ 17614 .

12. The visa applicant entered Australia on a Subclass 560 (Student) visa on 1 December 1996. The visa applicant was granted a further Subclass 560 (Student) visa on 10 July 1997 and this visa was valid until 16 August 1999. The visa applicant applied for a Partner (Temporary) (Class UK) on 4 April 2001 and did not hold a valid visa at the time of applying for that visa. The visa applicant has held bridging visas since 4 April 2001 granted on the basis of the application for a visa the subject of this review.

13. The visa applicant was nominated in connection with the visa application by Ms Ngoc Hieu Dang (the nominator), an Australian citizen, who was born in Ben Tre, Vietnam on 10 August 1979.

14. The visa applicant claims to have met the nominator in June 1998, and they started living together in November 1998 and that they married in Randwick NSW on 19 January 2001. The evidence provided in support of the application includes:

* Photographs of the couple at their wedding and on other occasions.

* Cards sent to the couple on the occasion of their wedding.

* Receipts relating to the couple's wedding.

* A letter from a person stating that the couple had cohabited at his/her address between October 1998 and December 2000.

* Statutory declarations from the couple's friends regarding the couple's relationship.

* Statutory declarations from the visa applicant and nominator.

* A History of Relationship form completed by the visa applicant.

* A marriage certificate indicating that the couple were married to each other on 19 January 2001 in Randwick, NSW.

15. On 4 April 2001 the Department sent the visa applicant a letter acknowledging the receipt of the visa application and informing the visa applicant that he failed to meet schedule 3 criteria because he had not lodged his visa application within 28 days of his previous visa ceasing. He was asked to provide compelling reasons for the schedule 3 criteria to be waived. The visa applicant was also invited to provide further information in relation to their relationship.

16. In response to this request the visa applicant provided a letter detailing the history of their relationship and stating that he had not wished to go back to Vietnam because of his relationship with the nominator. The letter indicates he was aware his visa had expired but had remained in Australia because of his relationship. He stated that his parents in Vietnam had stopped supporting him after his visa expired and he and the nominator had survived on her Austudy payments. He stated that the nominator's parents had disapproved of their relationship. He also indicated that he and the nominator did not have much money. He indicated that he was unable to open a joint account or rent a house under his name so he had used his friend's name to rent a property.

17. In addition, a letter from the visa applicant's representative states that the visa applicant did not retain evidence of cohabitation because he was not aware of the "Immigration requirement" and could only provide a small amount of evidence dating back to 28 November 1998 and that evidence had been submitted with the application. The visa applicant's representative also stated that the visa applicant and nominator had been in a continuous relationship for at least two years and had testimonies by independent people to verify their long-standing relationship and submitted that this reason alone was sufficient for the schedule 3 criteria to be waived.

18. Departmental officers interviewed the visa applicant and nominator on 6 September 2001. The record of this interview suggests that the visa applicant and nominator gave conflicting information regarding when they met, their past and present living arrangements and the date on which they started living at their present address. The delegate provided them until 14 September 2001 to explain in writing the discrepancies in their accounts.

19. In a statutory declaration dated 14 September 2001 the couple provided a written explanation as to why their accounts of their relationship and living arrangements had differed.

20. The delegate refused to grant the visa applicant a Subclass 820 (Spouse) visa on 19 September 2001. The delegate found that the visa applicant was the not the holder of a substantive visa at the time of application. The delegate found that the visa applicant and nominator were not in a genuine spousal relationship within the meaning of Regulation 1.15A. The delegate placed weight on the inconsistent evidence provided at the interview as well as in the statutory declaration following the interview as evidence that the couple were not in a genuine spouse relationship.

21. The visa applicant lodged an application for review by the Tribunal on 5 October 2001. The visa applicant stated when lodging the application for review that he and his wife are in a genuine and continuing relationship, the interview was based on information from a long time ago and their recollections may not have been accurate. He stated that this did not mean they were not in a relationship.

22. A hearing was held on 12 September 2002 and oral evidence was given by the visa applicant and the nominator. Both were assisted by an accredited Vietnamese interpreter.

23. The visa applicant was represented by Ms Dan Phuong Nguyen, a lawyer and migration agent, who advised the Tribunal in advance of the hearing that the visa applicant and the nominator would be attending but that she would not be attending.

24. At the hearing on 12 September 2002 the Tribunal re-visited some of the issues of inconsistency that were looked at by the Department. The Tribunal asked the visa applicant to write down all of his addresses that he and his wife have resided in since they started to cohabit. The Tribunal also asked him to list the approximate time at each residence, the rent payable at each premises, and the number of persons that resided in each residence. The visa applicant stated that he and his wife started to cohabit in December 1998. In the written statement the visa applicant advised that he and his wife started to reside together on 27 November 1998 at Esk Street in Marrickville and that they resided there for about two months with one other person and paid $200.00 per week in rent. On 19 January 2000 they moved to Avoca Street at Randwick and they had resided there for 7 to 8 months. They resided there alone and they paid $150.00 per week in rent. They then moved to Willis Street in Kingsford and resided there for 2 to 3 months in a 3 bedroom premises. They resided there with 3 other people. When the Tribunal asked whether he could name them he said he had one friend Quan Nguyen but did not know the names of the other two. The Tribunal stated that this was difficult to believe and the visa applicant stated that he kept different time to them. The visa applicant had earlier stated that he did not work and that he spent his time staying home and studying English. The next address was at Dalmeny Avenue in Rosebery. They had moved in there in about November or December 2001. The rent they pay is $150.00 per week and they reside with one other person.

25. The Tribunal then separately asked the nominator to write down the same details. The nominator listed the current property in Dalmeny Avenue at Rosebery and recalled them moving in around November 2001 and she stated that they lived with two other people. She then stated that they lived in Wills Street in around August 2001 but that she did not know the name of the suburb. She stated that there were four of them that lived in this place and she did not know the names of the other people. She then listed Esk Street as the next address and said that this was in Randwick near the train station. She advised that she lived about 8 months in Randwick and that she moved in after her husband. There was one address that they had resided in that she could not remember at all, not even the name of the suburb. The nominator was then asked by the Tribunal when she and her husband had begun to live together for the first time. The nominator stated that they started to live together in about November 2001. The Tribunal then stated that this was inconsistent with what her husband had said and she then revised her answer and stated that it was in 2000 that she thought they had resided together for about two years. The Tribunal notes that in the application for review the address used by the visa applicant for service of documents was Avoca Street Randwick, the same address given on the marriage certificate as the restaurant in which the wedding took place on 19 January 2001, and also the place where the nominator stated the visa applicant had worked.

26. The Tribunal asked the visa applicant whether he had worked in Australia. He advised that he had not and when asked how he had supported himself, he stated that he received money from his parents in Vietnam. When asked why there was no evidence of overseas remittances the visa applicant stated that the money would be brought to Australia by friends or forwarded through an agent in Marrickville. There was no corroborative evidence of this provided to the Tribunal. The nominator, however, when asked about her husband's means of financial support stated that he received money from his family in Vietnam and that he also did a bit of work in Randwick in a Vietnamese restaurant there called `Saigon'. When she was advised that this conflicted with the account of her husband the nominator stated that he only worked for a few months. She also stated that her husband had been actively looking for work without success.

27. The visa applicant was asked how his wife survived financially. The visa applicant stated that his wife had studied at TAFE, at Bankstown and that she was in receipt of an Austudy allowance. When asked whether his wife had completed any study and been awarded either a diploma or certificate from TAFE the visa applicant stated that she had not completed her course and that she had not been awarded a certificate or diploma. His wife when asked the same question stated that she had studied Administration at TAFE at Wetherell Park and Liverpool. She received a certificate upon completion of the course. She then enrolled in the Bachelor of Communication course at the University of Western Sydney at the Campelltown and Milperra campus. She then discontinued from her course and for the past few months has been working in a Telstra call centre.

28. The visa applicant did not hold a substantive visa at the time of application. The last held substantive visa was a Subclass 560 (Student) visa which ceased to have effect on 16 August 1999. As the visa applicant was not the holder of a substantive visa on the date he applied for a Partner (Temporary) (Class UK) visa, he must satisfy Schedule 3 criteria 3001, 3003 and 3004 or show that there are compelling circumstances which would justify the waiver of those criteria (paragraph 820.211(2)(d)).

FINDINGS

29. The visa applicant meets Schedule 3 criterion 3001 if the visa application was made within 28 days after the relevant day. The relevant day in the visa applicant's case is the day on which his last held substantive visa ceased. The visa applicant last held a substantive visa, a Subclass 560 (Student) visa on 16 August 1999 and in order to meet criterion 3001 must have lodged his application for a Partner (Temporary) (Class UK) visa within 28 days of 16 August 1999. The visa application was made on 4 April 2001, more than 28 days after 16 August 1999 and the visa applicant is therefore unable to satisfy Schedule 3 criterion 3001. Therefore the applicant must show that there are compelling circumstances which would justify the waiver if the Schedule 3 criteria. If the visa applicant is unable to show that compelling circumstances exist, the visa application must fail.

30. Procedures Advice Manual 3: Schedule 2 - Spouse - Visa 820 provides advice on what constitutes compelling circumstances applicable to the waiving of Schedule 3 criteria as follows:

3.3.13 This clause was inserted to allow certain persons unlawfully in Australia but in long-standing spouse relationships with Australian residents to legalise their status if compelling reasons exist.

3.3.14 In assessing whether there are compelling reason, officers are to take into account the circumstances which the Minister considers to be compelling. These circumstances, which were in the Explanatory Memorandum to Statutory Rules 1996 no. 75 which inserted this provision, are that

* there are Australian-citizen children from the relationship; or

* the applicant and their nominator are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least two years.)

In these circumstances, it is considered that the hardship which could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.

3.3.15 This does not mean that only those cases with such circumstances should benefit from the waiver; it would be an error of law to apply policy inflexibly.

3.3.16 The applicant and their nominator should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria. Officers are, of course, required under s54 of the Act to have regard to all the information in the application. However, it is the policy intention that an assessment of the relationship between an applicant and their nominator as genuine would not, in the absence of the factor(s) described in paragraph 3.3.14, be sufficiently compelling to justify not applying the Schedule 3 criteria.

31. The compelling circumstances must clearly be something additional to the existence of a genuine relationship. In Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204 the Court stated:

The expression "compelling reasons" involves something in addition to the basic pre-requisite criteria for the grant of the visa. The Tribunal is entitled, as a matter of law, to take into account circumstances falling outside those mentioned in the guidelines or policy.

32. The visa applicant has claimed that he began living together with the nominator in November 1998, greater than two years prior to applying for permanent residence on spouse grounds. However, the evidence provided to the Tribunal at hearing on 12 September 2002 by the visa applicant and the nominator was such that the Tribunal has doubts about whether the couple have resided together at all. The visa applicant gave an account of having resided at fours addresses since they started to cohabit in November 1998. At one of those addresses the visa applicant was unable to name his co-tenants with whom he shared a 3 bedroom apartment for 2-3 months. The nominator placed their cohabitation initially as commencing in late 2001 and then changed this to sometime in 2000. This evidence completely conflicted with that given by the visa applicant. Indeed the nominator was substantially impeded in her account of their cohabitation. She could not recall one of their four addresses, she could not correctly remember two of the suburbs that she had allegedly resided in and incorrectly gave the street address for Marrickville as being that for Randwick and incorrectly stated that Randwick had a railway station when it does not. This evidence, as stated, casts doubt upon the veracity of the claims of both witnesses and indeed their integrity in terms of the review process.

33. Having found that the visa applicant and the nominator based on their evidence about cohabitation have not cohabited for at least two years prior to the lodgement of the visa application, and based on the evidence given by them which casts doubt upon the genuineness of their claimed spousal relationship, the Tribunal has no evidence before it which would warrant the waiving of the Schedule 3 criteria.

34. The Tribunal finds that compelling circumstances have not been established for waiving the Schedule 3 criteria the visa application must fail and the Tribunal need not go any further.

35. Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Class UK visa.

DECISION

36. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Partner (Temporary) (Class UK) visa.