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

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).
Ms Chen applied for the visa on 6 January 2014 on the basis of her relationship with Mr Joseph Pino Valensise.
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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?
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.
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1419236 (Migration) [2015] AATA 3856
Case: [2015] AATA 3856
Decision Date: 16 December 2015

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal concerns the refusal by the delegate of the Minister for Immigration and Border Protection to grant a Partner (Temporary) (Class UK) visa to Ms Chen. The Tribunal was required to consider whether the delegate’s decision was lawful and whether there were any errors of law. The primary issue was whether Ms Chen satisfied the criteria set out in Schedule 3 to the Migration Regulations 1994. Specifically, the Tribunal needed to determine whether Ms Chen met criterion 3001, which requires the visa application to be made within 28 days of the relevant day. The relevant day for Ms Chen was 10 February 2012, the date her last substantive visa ceased. She applied for the visa under review on 6 January 2014, which was more than 28 days after her last substantive visa ceased. Therefore, Ms Chen did not satisfy criterion 3001. The Tribunal also considered whether there were compelling reasons for not applying the Schedule 3 criteria. However, it found that there were no compelling reasons to waive the criteria in this case.

Based on the evidence, the Tribunal concluded that the decision of the delegate was lawful and correctly made. Ms Chen did not satisfy the criterion for the grant of the visa, and there were no compelling reasons to waive the criteria. The Tribunal affirmed the delegate's decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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? 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. 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. 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). 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? 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). 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 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 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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? 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. 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. 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). 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? 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). 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 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

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Helena ClaringboldMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Helena ClaringboldMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.