1413977 (Migration)

[2016] AATA 3076

1413977 (Migration) [2016] AATA 3076 (7 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Xiaohong CHEN

CASE NUMBER:  1413977

DIBP REFERENCE(S):  CLF2013/142500

MEMBER:Michael Cooke

DATE:7 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 January 2016 at 10:50am

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 29 July 2014 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 24 June 2013 on the basis of her relationship with her 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). 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.820.211(2)(d) of the Regulations because the applicant did not meet the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 17 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from : Timothy Wright, who is the applicant's husband and sponsoring spouse and Jason Mackenzie a friend of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there are ‘compelling reasons’ for not applying the Schedule 3 criteria (the Tribunal waiver).

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

8. 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).

9. 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. These criteria are set out in the attachment to this decision.

   Criterion 3001

10. 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 and was the last day of the applicant’s Subclass 571 visa which ceased on 15 March 2010. The applicant applied for the visa (the subject of this review) on 25 June 2013.

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

    ‘Compelling reasons’

12. 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.

13. 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]. The compelling reasons for not applying the Schedule 3 criteria must be reasons which are relevant to the purpose of permitting the person to make an application for a spouse visa in Australia: Monakova v MIMA [2006] FMCA 849 at [27]-[28]. The question of whether there are compelling reasons for not applying the Schedule 3 criteria must be considered in relation to circumstances existing at the time of application: Boakye-Danquah v MIMIA (2002) 116 FCR 557 at [39].

    Findings and reasons on whether or not there are ‘compelling reasons’ for not applying the Schedule 3 criteria.

14. The applicant was requested to submit ‘compelling reasons’ for waiver of the Schedule 3 criteria by the Department. She had been unlawful from the expiry of her last substantive visa until her application for the present visa under discussion. This was a period of 3 years and 3 months.

15. The applicant submitted that she was in a genuine relationship and she and her husband relied on each other both now and during the course of their relationship for support. They both claimed they would suffer emotional hardship if the applicant were forced to depart Australia. The delegate noted that the parties had provided no evidence of the severity of the anticipated hardship. The applicant further claimed that her parents would prevent her from lodging an application offshore. Her evidence was that her family found it culturally unacceptable to marry a foreigner and that she would be unable to see her husband or ‘reunion with him anymore’ as she put it in her submission (to the Department) if she returned. This claim flatly contradicts the applicant’s Personal Statement (on the Department file) where the applicant indicated she had telephoned her mother to inform her of her marriage where she states “My mother gave her wishes to me. We planned to hold another wedding party when I go back to China.”

16. The parties also wished to marry before the demise of the sponsor’s father which fulfilled his dying wish. Due to his birth in a de facto relationship he was estranged from his mother he had fights with his other family members (over family matters) and thus had no family to whom he was close apart from the applicant and thus she could not leave him at that time (November 2012).

17. The Tribunal does not find the claim that the applicant would have to file an offshore application in her home area to be a ‘compelling reason’ for waiver. There are a number of available venues in China for her to lodge an application. She could also travel there with her husband if it were his wish - but he is not obliged to do so.

18. The Tribunal does not find the claim that the parties would be subject to ‘emotional hardship’ due to their separation as satisfactory. The separation they would endure would be temporary and typical of the emotional longing that affects any parties who need to make an offshore application whilst have a genuine relationship. It is not a ‘compelling reason’ for waiver.

19. The applicant was asked in the hearing why she had remained unlawful for so long. She responded that she had Falun Gong activities ‘in the family’ and her mother had asked her not to return. The Tribunal observes that the applicant did not raise this issue previously in her response to the Department regarding her Schedule 3 problem. This claim flatly contradicts the applicant’s Personal Statement (on the Department file) where the applicant indicated she had telephoned her mother to inform her of her marriage where she states “My mother gave her wishes to me. We planned to hold another wedding party when I go back to China.” Furthermore she has not provided any detail of the claim at the hearing. The Tribunal finds her response, therefore, implausible and not a ‘forceful’ or ‘compelling reason’ for waiver.

20. The other ‘compelling reason’ advanced by the parties was that they were in a housing lease. The sponsor had just moved to a new job from the country. His witness indicated he had found him the job. He was enjoying it and had been able to find work after being unemployed.  This would be a problem of financial hardship it was suggested to the Tribunal. The Tribunal finds no evidence that the sponsor would have suffered ‘financial hardship’ at time of application if the applicant were forced to travel overseas temporarily. The lease referred to by the sponsor was submitted to the Tribunal and dates from 2015 when the date of application is 2013.

21. The Tribunal is not satisfied that the disruption to the sponsor’s and applicant’s life by the need for the applicant to temporarily relocate to China to make a new application is a ‘compelling reason’ for waiver.

22. 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).

23. Having concluded that the applicant does not meet cl.820.211(2)(d)(ii), the Tribunal has considered whether the alternative criteria in cl.820.211(3) – (9) (people entering Australia to marry and who have subsequently married, and death, family violence, child exceptions) are met by the applicant before affirming the decision under review. The Tribunal finds no evidence that the applicant can meet the alternative criteria.

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

    DECISION

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

    Michael Cooke
    Member

    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.