1513220 (Migration)

[2016] AATA 3487

1513220 (Migration) [2016] AATA 3487 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shang GAO

CASE NUMBER:  1513220

DIBP REFERENCE(S):  BCC2014/3387057

MEMBER:Fiona Meagher

DATE:29 February 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 29 February 2016 at 12:55pm

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 7 September 2015 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 10 December 2014 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). 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) because the delegate found that there were no compelling reasons not to apply the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Qian Li. 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 his registered migration agent, who attended the hearing.

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 the applicant meets the Schedule 3 criteria and if not, are there compelling reasons not to apply the Schedule 3 criteria.

   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.

11. The application for a Partner visa was lodged on 10 December 2014. According to the delegate’s decision, a copy of which was provided by these applicant’s registered migration agent with his application for review, the visa applicant last held a substantive visa on 17 July 2010. The last relevant day (as defined in criterion 3001(2)) therefore is 17 July 2010. 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].

14. The Tribunal has also had regard to policy guidance in the Department’s Procedures Advice Manual (PAM3), revised from 1 July 2014, in relation to “compelling circumstances” under cl.820.211(2)(d)(ii), which now focuses on the circumstances that resulted in the applicant becoming unlawful. The expectation of the revised policy is that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. The policy notes that the compelling reasons provision is not intended to give an unfair advantage to people who “fail to comply with the visa conditions, deliberately manipulate their circumstances to give rise to compelling reasons or can leave Australia and apply for Partner visa outside Australia”.

15. The Tribunal is not bound by Department policy. What amounts to compelling reasons in each case is a question of fact. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case. As noted by Bromberg J in MZYPZ v MIAC [2012] FCA 478 “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”.

16. The applicant told the Tribunal that his wife works full-time in a remote location. When asked by the Tribunal where the remote location is, the applicant advised that it is Nerang. He advised that the sponsor owns a home at Sunnybank Hills so she has a 1.5 hour commute each way to work. The applicant said that due to the length of his wife’s commute, he has to take over the house work, and looks after the house, the cleaning, the garden and everyday work, because she does not have much time left to do anything else.

17. The applicant also told the Tribunal that he and his wife had only been married for two years and they would hate to be separated for a longer period. The applicant told the Tribunal that his sponsor’s job is quite busy and it is difficult for her to ask for time off to come and visit him in China. The Tribunal put to the applicant that Australian law requires Australian employers to negotiate reasonably with employees regarding leave, and the applicant stated that his wife could ask for longer, but did not wish to do so as it would put her company in a difficult position.

18. The sponsor gave evidence to the Tribunal that at the time of the application for the visa, the parties were living together but that her job was a long way away in Nerang (which is a “remote area”). The sponsor told the Tribunal that she bought a house in Sunnybank Hills, which settled in February 2015. She was unable to remember when she entered into the contract. The sponsor explained that she and the applicant chose to buy in Sunnybank Hills rather than the area around where she worked because it was more convenient for starting a family and had better schools.

19. The sponsor said that she simply could not stand being separated from the applicant, and she can’t travel back to China as much as she would want. She said that she would feel miserable living alone without the applicant. She said that her work is very busy which is why they do not have a child yet. She said that if the applicant has to leave they cannot do anything about having a child. The sponsor said that she has no other family in Australia - she is the only child in her family. She said that her parents would be worried about her if her husband was away and she lived alone. The Tribunal asked her where she lived previous to meeting the applicant. The sponsor replied that she lived in a share house and that the applicant was one of her housemates in the share house.

20. The sponsor told the Tribunal that if she was by herself her life would be more difficult, because she spent so much time travelling every day. She said that the applicant helps her with everyday living and she is not very good at cooking. She also said that the house that she purchased was not new and needs repairs and he can look after those much better than she can.

21. At the end of the hearing the applicant’s registered migration agent told the Tribunal, when asked, that he had nothing to add.

22. After the hearing, on 21 January 2016, the Tribunal received a submission from the registered migration agent attached to a covering email dated Thursday, 21 January 2016. The covering email stated: “We attach a submission for the following visa application lodged with DIBP and advise that the review applicant is relying on the same reasons provided in that submission in this present AAT review.

    We also submit that the sponsor required substantial care and assistance from the applicant at the time of application as both were living at Wishart Road, Upper Mount Gravatt then. The sponsor needed to drive to Nerang daily to work and she was required to continue to work there for at least two years under relevant migration law or her visa would be subject to cancellation.

    We shall therefore be grateful if the application is remitted to DIBP for further consideration.

    The attached submission stated as follows:

    COMPELLING REASONS FOR NOT APPLYING SCHEDULE 3 CRITERIA TO THE APPLICANT UNDER REG 820.211(2)(d)(ii)

    The applicant’s former student visa ceased on 17/7/2010. The applicant advised that he did not have sufficient funds to pay for a visa application or buy a flight ticket to return home by the due date (Appendix 1). The applicant did not take immediate steps to regularise his status because of his ignorance. He did not realise that he was allowed to lodge another student visa within 28 days from the expiry date of his last student visa or lodge another visa application to regularise his status. After he had become an illegal non-citizen he was so afraid to seek help as he did not know what would happen if his status became known to DIAC.

    According to the applicant and the sponsoring partner, they had known each other since late 2008 but only started to have a relationship since 30/11/2011.

    After dating for more than 2 years, they decided to marry each other and the marriage took place on 12 May 2014.

    The sponsoring partner is holding a SC187 visa which requires her to work for her nominated employer in a regional area for 2 years. Because the location of the shop is remote, it is not easy for the employer to find staff to work there. Therefore, it is very hard for Qian to have an annual leave more than eight consecutive days. Please find enclosed a letter from her employer, Mr TANG, Xiaoxi for your consideration (Appendix 2)

    Even though the sponsoring partner can visit the applicant if he returns to China to apply for the partner visas application offshore, special consideration should be given because of the following reasons:

    1.    The sponsoring partner is a SC 187 visa holder and the location of her work as it Nerang. She needs to travel to Nerang from Brisbane at least five days a week.

    2.    After having carefully considered the current house value and future value of the properties in Nerang and Brisbane, Qian bought her first house in Sunnybank Hills.

    3.    Gardening and most of the house chores are performed by Shang in order to reduce the workload of Qian.

    4.    Qian needs to be responsible for the expenses of their family and mortgage payments of the house. Therefore, her financial burden is very heavy right now.

    Shang will likely not be granted a visitor visa to return to Australia to visit his wife during the processing time if he lodges his application offshore as he is subject to condition 4014.

    It is almost impossible for Qian to stay in China with Shang in the near future because she is holding a SC 187 which requires her to work for her nominated employer in a regional area for two years.

    As it is not easy for Qian to have long annual leave because of the shortage of staff in her workplace, the maximum time for her to stay overseas to visit Shang is 5 days after deducting the flight time. When considering the price of return tickets if she wants to visit her husband on each annual leave, it will become a heavy burden on her especially if she needs to pay off her house mortgage. She also needs to look after the house by herself only.

    Although it may be argued that Shang can find a job in China to help Qian if he lodges his partner visas offshore, the average salary in Qingdao is only RMB3,117 a month (Appendix 3). His salary may be even not enough to cover his own expenses in China and of course will be unable to provide financial help to Qian if he lodges his visa application offshore.

    Although Shang is not allowed to work in Australia and therefore, he is also unable to provide direct financial help to Qian, he can at least help Qian to do all the housework and provide emotional support to her.

    Most offshore sponsoring partners and applicants visa applications have not been living together for a long time, therefore, the feeling of dependency on each other will not be as strong as that of onshore visa applications.

    Although different forms of social media, such as Skype, Facebook, Whatapp or Wechat offer opportunities for people to remain in contact when they are part, there is a lot of scientific proof that significant changes in living arrangements are more likely to cause mental health problems, including depression and anxiety disorders. Using social media to keep in touch is not the same as living together as husband and wife.

    In view that offshore partner SC 309 visa application will take at least 12 to 18 months to process, Shang and Qian decided to lodge the visas application onshore to avoid physical and mental distress due to prolonged separation after being newlywed.

    Accordingly, the sponsoring partner requests the minister to exercise his discretion and waive the Schedule 3 criteria for the visa applicant.

    The Tribunal notes that none of the appendices referred to were attached to the submission sent to the Tribunal.

23. The applicant’s claims can thus be summarised as follows:

    a.The sponsors commute (about three hours each day) means that the applicant does the house work as the sponsor has little time for it and is not a very good cook. The Tribunal notes that the distance between Upper Mount Gravatt (where the applicant and sponsor were living at the time of application) is approximately 58 kilometres. The Tribunal is not satisfied that the sponsor’s commute, and the fact that therefore the applicant does the house work, and the fact that the sponsor is not a very good cook are compelling reasons for not applying the Schedule 3 criteria.

    b.The house the sponsor bought is old and needs repairs. The Tribunal observes that the condition of the sponsor’s house and the repairs which might need to be undertaken in relation thereto are matters which it is precluded from considering, as they are not matters in existence at the time of application. Based on the submission of the registered migration agent on behalf of the applicant, at the time of application, the parties were living in a rental property at Wishart Road, Upper Mount Gravatt.

    c.The parties do not wish to be separated. Prolonged separation being newlywed could cause physical and mental distress. The sponsor would be miserable. The applicant provides her with emotional support. She has no other family in Australia. Temporary separation and resultant hardship is common to all offshore applicants for partner visas. The Tribunal is not satisfied in this case that any unhappiness or otherwise resulting from a temporary separation from a person’s partner, in order to make an offshore partner visa application, amounts to a compelling reason not to apply the Schedule 3 criteria.

    d.The sponsor will find it difficult to obtain as much time off as she would like to visit the applicant in China, if he has to go back. Even if she is entitled to longer periods of leave, to take them would leave her employer in a difficult position. The sponsor needs to look after her house herself. The Tribunal observes that the sponsor does not have to leave her house while the applicant is offshore, if she prefers to stay home and look after it herself. That is a matter for her, and in any event not an issue for the Tribunal, as it does not apply to the time of application for the visa, at which time the parties were renting a different house. The Tribunal notes that if the sponsor does experience difficulties in arranging long holidays with the applicant, that will only be for a temporary period whilst obtaining the visa. It is not unusual for parties in a genuine relationship to experience some hardship, if one of them is required to go offshore for a temporary period to make the visa application. The Tribunal is not satisfied in the circumstances of this case that this amounts to a compelling reason not to apply the Schedule 3 criteria.

    e.The Tribunal notes that while it is open to the parties to keep in touch by telephone, Skype and whatever means are available to them, the submission states that;

    While social media offers opportunities “for people to remain in contact, there is a lot of scientific proof that significant changes in living arrangements are more likely to cause mental health problems including depression and anxiety disorders. Using social media to keep in touch is not the same as living together as husband and wife.”

    However, the Tribunal notes that some form of hardship, including in relation to communicating with one another is typical in cases where a party has to go offshore to make a visa application. It does not, in the Tribunal’s view, amount to a compelling reason not to apply the Schedule 3 criteria.

    f.If the applicant were to return to China the sponsor’s parents would be concerned about her if she lived alone. The Tribunal observes that it is open to the sponsor to have a housemate for the duration of any temporary separation necessary to obtain the visa. On the parties’ evidence, they met while sharing a house. Therefore the sponsor has lived in a share house in the past. Accordingly, to the extent that this argument relates to the time of application, the Tribunal does not find this a compelling reason not to apply the Schedule 3 criteria. To the extent that it applies to the situation now, the Tribunal is precluded from considering it as it does not relate to the time of application.

    g.The parties cannot have a baby if the applicant is in China. The Tribunal notes that according to the delegate’s decision, a copy of which was provided by the visa applicants registered migration agent, the sponsor is almost 26 years old. The Tribunal also notes no claims were made in relation to age-related maternity issues. It is common for parties to have to modify their lifestyles and plans for the future if one of them has to go offshore to apply for a partner visa. Therefore, the Tribunal is not satisfied that this is a compelling reason not to apply the Schedule 3 criteria.

    h.The applicant was ignorant of the law regarding visas, he did not have enough money to pay for the visa application or fly home by the due date. Ignorance of the law, or fear of the consequences of not adhering to it, are not excuses as to why the law should not be applied. It is the responsibility of each person entering Australia to be aware of the conditions of any visa granted to them. As to the question of shortage of funds required to travel and  file a partner visa offshore, the Tribunal observes that many couples who are required to file offshore partner visas are likely to face some financial difficulties. This is particularly so when the applicant is required to return to their home country to file that application. However, in this case the parties were able to find the funds to marry and the sponsor has bought a house. The sponsor is working.  Accordingly these do not amount to compelling reasons not to apply the Schedule 3 criteria.

    i.Because the parties have been together onshore they have a stronger dependency than parties making an offshore application. The Tribunal finds that any dependency of the parties due to the applicant being unlawfully onshore is not a compelling reason not to apply the Schedule 3 criteria. The parties have been in relationships since November 2011. The Tribunal does not accept that in this case that any dependency by the sponsor on the visa applicant, or vice-versa, which developed over that time amounts to a compelling reason not to apply the schedule three criteria. Being temporarily separated geographically from a partner upon whom one has become dependent is a hardship common to many visa applicants in this situation.

    j.The parties have been in a long-standing relationship. The Tribunal observes that the parties married in May 2014, after dating for more than two years. Longevity of the relationship is something that the Tribunal does take into account, although not in isolation, and without consideration of other factors that outweigh the claim that the schedule three criteria or to be waived on this basis. The Tribunal considers it significant that the relationship was conducted whilst the applicant was an unlawful noncitizen, when it would have been evident to the parties that the applicant’s status in Australia had not been regularised. In these circumstances the Tribunal is not satisfied that there are compelling reasons for waiving the schedule three criteria at the time of application, on the basis that the applicant and his sponsor had been in a lengthy relationship in Australia.

    k.The visa applicant is unlikely to be granted a visitor visa to return to Australia to visit his wife, while his offshore Visa is being processed. The Tribunal is unable to speculate on the outcome of visa applications which have not yet been made. In any event, the possible outcome of a future Visa application does not amount to a compelling reason not to apply the schedule three criteria.

1. All parties in a genuine relationship, while an application for a partner visa is filed offshore must face some degree of emotional and financial hardship. This includes a period of separation while the partner visa application is processed and the associated costs of separate households.

2. Having taken into account the above matters, both individually and cumulatively, the Tribunal is not satisfied that at the time of the visa application there were ‘compelling reasons’ for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

3. 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).

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

   DECISION

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

   Fiona Meagher
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.15A     Spouse

   (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day to day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long term one.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

   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.