1419236 (Migration)

[2015] AATA 3856

1419236 (Migration) [2015] AATA 3856 (16 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chun CHEN

CASE NUMBER:  1419236

DIBP REFERENCE(S):  BCC2014/40508

MEMBER:Helena Claringbold

DATE:16 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 16 December 2015 at 7:28am

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 11 November 2014 to refuse to grant Ms Chun Chen, the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Chen applied for the visa on 6 January 2014 on the basis of her relationship with Mr Joseph Pino Valensise.

3. At the time of application, 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.

4. Ms Chen requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record. She appeared before the Tribunal on 10 December 2014 to provide evidence and present arguments.  The Tribunal also received oral evidence from Mr Valensise.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Departmental case file BCC2014/40508, folios numbered 1-293, and the Tribunal’s case file 1419236, folios numbered 1-95 and the oral evidence given  at the Tribunal hearing.

   ISSUE

7. The delegate refused to grant the visa on the basis that Ms Chen did not satisfy cl.820.211(2) and cl.820.221 because the delegate was not satisfied that Ms Chen satisfied the applicable Schedule 3 criteria.  Specifically Ms Chen was granted a substantive visa which ceased on 10 February 2012.  She applied for the visa under review on 6 January 2014.   Therefore, at time of application, it was more than 28 days since Ms Chen held a substantive visa.

   What is the background of this case based on the evidence before the Tribunal?
   
   

8. Ms Chen aka Spring Chen was born on 14 February 1981 and is 34 years old (refer: D1 f56).  She is a national of China.  Her parents, brother and a sister reside in China.

9. On 9 November 2005, she arrived in Australia as the holder of a student visa which ceased on 19 January 2006. She was granted further visas including, Subclasses 573, 572 and 485 visas. On 10 February 2012, the last substantive visa she held ceased. On 22 January 2012, she lodged a Subclass 885 visa application; and on 12 December 2013 withdrew that visa application.  On 6 January 2014, she lodged the partner visa under review.

10. Mr Valensise was born on 4 April 1958 and is 57 years old (refer: D1 f95).  He is an Australian citizen, born in Australia (refer: D1 f97).

11. On 4 April 2013, the parties met.  On 26 October 2013, the parties married (refer: D1 f103)

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

12. 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).

13. 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

14. 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. Specifically Ms Chen was granted a substantive visa which ceased on 10 February 2012.  She applied for the visa under review on 6 January 2014.   Therefore, at time of application, it was more than 28 days since Ms Chen last held a substantive visa. Therefore, as detailed in the delegate’s decision record Ms Chen does not satisfy criterion 3001.

    Compelling reasons

15. 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.

16. 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 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] FCA 438 at [39].

17. On 31 July 2014, the Department invited Ms Chen via her migration agent to provide information as to whether at the time of application compelling reasons existed not to apply the Schedule 3 criteria.

18. On 11 November 2014, the date of the delegate’s decision, Ms Chen or her migration agent had not responded.

    At the Tribunal hearing

19. The Tribunal put to Ms Chen the evidence provided in the decision record about her background in Australia as detailed at paragraphs 8-9.  The Tribunal asked Ms Chen about her circumstances at the time of the visa application and discussed with her, in detail the Schedule 3 criteria and whether there are compelling reasons for not applying the criteria. 

20. Ms Chen provided evidence that at the time of application she was married to Mr Valensise and took care of him by cooking, cleaning and washing.  She said that she really didn’t understand the difference between a substantive visa and a non substantive visa.  She stated that they really hadn’t thought much more about it and there were no other reasons to put forward.

21. Mr Valensise provided evidence that at the time of application he didn’t really understand much about immigration.  He stated that the parties married on 26 October 2013 and lived together in a very good relationship since that time.  He said his wife takes care of him and they take care of each other.  He continued that he is financially independent and does not rely on the government for anything.  He stated that he didn’t understand the immigration situation or his wife’s visa status. 

22. Ms Chen’s migration agent stated she did not assist in the lodgement of the visa.  She continued that when Ms Chen came to her, she realised that the visa would be refused because there are no compelling reasons.

    FINDINGS

23. At the time of application, the married relationship between the applicant and her sponsor was approximately ten weeks.  As a spousal relationship is the basic requirement for a partner visa application, and there is no evidence before the Tribunal from the parties that the longevity of their relationship is somehow, in and of itself, a circumstance that should compel the Tribunal to not apply the Schedule 3 criteria. Therefore, the Tribunal is not satisfied that, at the time of application, the duration of the parties’ relationship is a reason to not apply the Schedule 3 criteria.

24. In considering Mr Valensise’s evidence that the parties married on 26 October 2013 and lived together in a very good relationship since that time.  The Tribunal encourages the parties to remain is contact during any time of separation and to provide comfort and support to each other in order to limit any hardship they may experience during times they are apart.  Separation is a particularly common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian partner (or eligible person). Although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, the parties have not provided the Tribunal with any evidence to substantiate the claim of “significant impact” and to demonstrate the severity of the anticipated hardship. Accordingly, the parties have not satisfied the Tribunal that, at the time of application, their separation is a compelling reason not to apply the Schedule 3 criteria in this case.

25. With regard Ms Chen’s lack of knowledge about substantive and non-substantive visas and Mr Valensise’s lack of knowledge about immigration process and his wife’s visa status; it is unfortunate that Ms Chen’s previous migration agent did not inform the parties about the difference between a substantive and non-substantive visa and the importance of being the holder of a substantive visa at the time of application for a partner visa.  The Tribunal is not satisfied that, at the time of application, this reason at the time of application is a compelling reason not to apply the Schedule 3 criteria.

26. The Tribunal also had regard to another claim that the genuine and continuing nature of the parties’ relationship should be considered a reason not to apply the schedule 3 criteria in their case. As this kind of support is the minimum requirement for any spousal relationship, the Tribunal does not consider, at the time of application, this is a compelling reason for not applying the Schedule 3 criteria.

27. With regard to the support Ms Chen provides in completing household duties and assisting  Mr Valensise, the Tribunal encourages the parties to put arrangements in place that will assist Mr Valensise during any separation from Ms Chen.  The Tribunal is not satisfied that, at the time of application, this is a compelling reason for not applying the schedule 3 criteria.

28. Another claim is that of Mr Valensise’s financial independence and his non reliance on government at the time of application.  The Tribunal congratulates Mr Valensise on his financial success.  The Tribunal is not satisfied that, at the time of application, this is a compelling reason for not applying the Schedule 3 criteria.

29. The Tribunal has considered the evidence individually and as a whole.  The Tribunal is not satisfied that, at the time of application, there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). The Tribunal has considered alternative subclauses as follows.

30. There is no evidence before the Tribunal that Mr can satisfy any of the alternative Subclauses 820.211(3), Subclause 820.211(4), Subclause 820.211(5) Subclause 820.211(6), Subclause 820.211(7), and Subclause 820.211(8) or subclause (9).

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

    DECISION

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

    Helena Claringbold
    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.