Dinh (Migration) [2018] AATA 4513 (3 October 2018)

Last Updated: 6 December 2018

Dinh (Migration) [2018] AATA 4513 (3 October 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Van Hien Dinh

CASE NUMBER: 1710938

DIBP REFERENCE(S): BCC2016/2481032

MEMBER: Hugh Sanderson

DATE: 3 October 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

• cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 03 October 2018 at 12:26pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – not a holder of a substantive visa holder – compelling reasons – paternity test – unlawful citizen – criminal offence – children’s best interest – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211

CASES
Babicci v MIMIA [2005] FCAFC 77; (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 12 May 2017 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 26 July 2016 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 at the time of the application the applicant did not hold a substantive visa did not satisfy criterion 3001 of the Schedule 3 criteria. Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.

Background

4. The applicant is a citizen of Vietnam and is currently 36 years old. His parents and a brother and sister continue to reside in Vietnam. He was previously married to Thi Phuong Bui who he divorced in 2010 and has one child that relationship. He first entered Australia on 21 August 2009 holding a Student visa. This visa expired on 12 September 2011. He has not held a substantive visa since that time.
5. The sponsor of the applicant is Thi Thanh Hoa Nguyen. She was born in Vietnam and is currently 28 years old. Her parents continue to live in Vietnam. She first entered Australia on 21 August 2009 holding a Student visa. She was previously married to Vinh Do who sponsored her for a Partner visa. She was granted a Subclass 801 Partner (Residence) visa on 6 October 2014. She now has the right to reside permanently in Australia. She divorced Mr Do on 8 June 2016. She claimed that Mr Do abandoned her and she last saw him on 1 May 2015.
6. The parties claimed that they first met each other on 28 June 2015. On 26 October 2015 the applicant was convicted of cultivating a prohibited drug and placed on an intensive corrective order for two years. The parties claimed that they committed to a relationship with each other on 14 February 2016. Information was provided which show the parties entered into a joint residential tenancy agreement on 23 January 2016. The sponsor gave birth to a son, Harry, on 28 June 2016. The parties were married on 16 July 2016.
7. The sponsor travelled to Vietnam on 17 April 2017, returning to Australia on 24 July 2017.
8. The Department noted that the applicant did not hold a substantive visa at the time of the application and did not appear to meet the Schedule 3 criteria. The applicant was invited to provide compelling reasons for not applying those criteria. The Department noted that the parties claimed to have had a child together and invited the applicant to undergo DNA testing to establish paternity. The applicant provided further information as to the claimed relationship between himself and the sponsor, however, did not respond to the request to establish paternity of the sponsor’s child by undergoing DNA testing.
9. The delegate who considered the application noted the following issues:
   • The applicant did not hold a substantive visa at the time of the application and had remained in Australia as an unlawful noncitizen since his Student visa ceased on 16 November 2011, more than four years prior to the filing of the current application;
   • Only limited information was provided which would show that the relationship was genuine;
   • A birth certificate had been provided indicating that the sponsor’s child, Harry, was the child of the applicant, however, the applicant had not agreed to undertaking DNA testing to establish paternity of the child;
   • The limited information about the parties claimed relationship and the fact that the applicant had failed to undergo DNA testing indicated that the child of the sponsor was not the child of the applicant;
   • No information had been provided which would indicate that the applicant was involved in the care of the sponsor’s child; and
   • The circumstances of the parties claimed relationship did not raise any compelling reasons for not applying the Schedule 3 criteria.
10. Taking these matters into account, the delegate found that the applicant did not meet criterion 3001 of the Schedule 3 criteria and was not satisfied that there were compelling reasons for not applying those criteria. Accordingly, the delegate found that the applicant did not meet the criteria in cl.820.211(2)(d) and refused the application.

Information to the Tribunal

11. DNA testing was carried out to establish the paternity of the sponsor’s child, Harry. This concluded that the applicant was proven to be the father of the child.
12. In light of the information currently before the Tribunal, the Tribunal has proceeded to a decision without the need for a hearing.
13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

15. 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).
16. 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

17. 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 when the applicant held a substantive visa.
18. The applicant last held a substantive visa in November 2011 when his Student visa expired. He remained in Australia after that date as an unlawful noncitizen. This was almost 5 years prior to the filing of the current application.
19. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

Compelling reasons

20. 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.
21. 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] FCAFC 77; (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.
22. The applicant has a poor immigration history. He has shown his contempt for Australia’s immigration laws by remaining in Australia as an unlawful noncitizen for almost 5 years. It is doubtful that the applicant ever had any intention to study in Australia and that he simply manipulated his circumstances to be able to remain in Australia without any valid right to do so. He has also committed criminal offences in Australia which calls into question his character.
23. The fact is, however, that the applicant has a son, Harry, who is now only two years old. If the applicant were required to return to Vietnam to file an offshore Partner visa application it is likely that it would take between 12 to 18 months before that application was finalised. This would mean that Harry would be deprived of his father for a considerable period over his short life. The Tribunal accepts that it is important for a child’s development to be able to have the influence of both his mother and father. The Tribunal accepts that the sponsor would remain in Australia while any offshore Partner visa application was filed and that she would face difficulties in caring for Harry, both financially and emotionally, without the support of the applicant.
24. The Tribunal finds that the harm that Harry would suffer if the applicant were not allowed to file an onshore Partner visa application provides a compelling reason for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).
25. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

DECISION

26. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
    • cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Hugh Sanderson
Member