1711977 (Migration)

[2019] AATA 4199

1711977 (Migration) [2019] AATA 4199 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711977

MEMBER:Hugh Sanderson

DATE:16 April 2019

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) visa:

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

Statement made on 16 April 2019 at 12:52pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – did not hold a substantive visa – compelling reasons – significant hardship – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211(2)(d), Schedule 3 criteria 3001, 3003, 3004

CASES

Babicci v MIMIA (2005) 141 FCR 285

MZYPZ v MIAC [2012] FCA 478

Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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 11 June 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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 the applicant did not hold a substantive visa at the time of the application and did not satisfy 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 China and is currently [age] years old. He has been previously married on two occasions (although he did not disclose any marriage in his application although provided the divorce certificate from his second marriage). He has a son from his first marriage, [who] is currently [age] years old and resides in Australia. He divorced his second wife in 2011. The applicant entered Australia on 29 September 2007 holding a Tourist visa. When that visa expired on 9 October 2007 he remained in Australia as an unlawful noncitizen. He has not held a substantive visa since that date.

5. The sponsor of the applicant is [name deleted]. She was born in China and is currently [age] years old. She became an Australian citizen in 1992. She was previously married and has two children from that relationship, [Name deleted] currently 23 years old and [name deleted] currently 16 years old. She claims to have separated from her husband in 2008 and they were divorced in 2013. Her parents and two siblings reside in Australia.

6. The parties claim they first met each other in October 2011 through the applicant’s sister, [name deleted], who was a friend of the sponsor. A relationship developed between the parties and they started living together in February 2012. They purchased a home together and moved into that home on 3 January 2014 with the sponsor’s parents.

7. The applicant applied to the Department to waive the 8503 Condition on his Tourist visa which restricted him from filing any further application. The Department waived that condition on 4 June 2014. The current application was then filed.

8. The applicant acknowledged that he did not hold a substantive visa at the time of the application and did not meet the Schedule 3 criteria. The applicant provided a report from [Medical Professional 1], dated 3 March 2014. This noted the following:

   ·The sponsor had been in a poor first marriage and she and her former husband had lived separately and apart under the same roof from 2008 for a number of years;

   ·Over that period, the sponsor had to be referred to [specialist because of medical condition] and had [Medical Condition 1];

   ·While the sponsor was working four days a week, the applicant had been assisting in the care of her children and also the care of her elderly parents;

   ·The sponsor had been treated for [various medical conditions] since January 2014 and was diagnosed as having symptoms consistent with  [another medical condition];

   ·The applicant has always accompanied the sponsor to her appointments with [a medical professional];

   ·Within the relationship, the sponsor is more stable when with the applicant;

   ·Without the applicant, the sponsor is in [details deleted] and unable to care for her parents and children; and

   ·Without the applicant, there is a significant risk that the sponsor would suffer a relapse.

9. The delegate who considered the application noted the following issues:

   ·The applicant remained unlawfully in Australia for five years prior to making the application;

   ·There was no information which would indicate the parties had established a de facto relationship before their marriage in 2013;

   ·It appeared the applicant had attempted to manipulate his circumstances to be able to remain in Australia with no valid reason; and

   ·Although the sponsor was diagnosed as suffering from [Medical Condition 2], there was no information as to how she coped with this condition prior to her claimed relationship with the applicant which indicated she was not dependent upon him for any support.

10. Taking these matters into account, the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.211(2)(d) and refused the application.

    Information to the Tribunal

11. The applicant applied for a review of that decision before the Tribunal (differently constituted). The Tribunal was not satisfied there were compelling reasons for not applying the Schedule 3 criteria and affirmed the Department’s decision on 18 January 2017. The applicant appealed against that decision and the matter was remitted by consent on the grounds that the Tribunal found that being in a long-standing relationship would not be a reason to satisfy the Schedule 3 criteria.

12. The application came before the Tribunal (differently constituted) and the applicant appeared before the Tribunal on 23 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and other friends and relatives of the parties. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

13. Before a decision was made by the Tribunal, the Member to whom the matter had been constituted left the Tribunal and accordingly the matter was reconstituted.

14. The applicant has provided further information to the Tribunal including the following:

    ·Evidence of the sponsor being treated for [Medical Condition 3] including the issue of the disability parking permit;

    ·Registration details of [details deleted] in the names of the applicant and the sponsor;

    ·Mortgage details of the parties;

    ·Evidence of the sponsor’s admission into hospital in February 2017 after [Medical Condition 1] where the sponsor [details deleted];

    ·Information as to the medication being taken by the sponsor;

    ·Information as to the sponsor’s continuing treatment for [Medical Condition 2] and [Medical Condition 3];

    ·Report from [Medical Professional 1], dated 20 July 2017; and

    ·Statements by friends and relatives in support of the application.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

17. 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).

18. 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

19. 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 last day when he held a substantive visa.

20. The last substantive visa of the applicant was his Tourist visa which expired on 9 October 2007. This was more than five years prior to the filing the Partner visa application.

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

    Compelling reasons

22. 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.

23. 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]. 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.

24. The circumstances whereby the applicant did not hold a substantive visa at the time of the application have no merit. He has ignored Australia’s immigration laws by remaining in Australia as an unlawful noncitizen. It appears that he has manipulated his circumstances to be able to claim compelling reasons for not applying the Schedule 3 criteria. This includes buying a home in the joint names of himself and the sponsor, despite not holding any right to reside permanently in Australia. He opened a business with the sponsor, again despite the fact that he did not hold work rights. He has shown himself to be a low moral character.

25. The applicant has provided extensive information as to his relationship with the sponsor. Although there is limited information that the parties were living together in a de facto relationship prior to their marriage, the Tribunal accepts that from at least July 2013 the parties have been living together in a spousal relationship. The parties have now been married for almost 6 years.

26. The sponsor has multiple medical issues. This includes suffering from [Medical Condition 3] and being diagnosed as suffering from [Medical Condition 2]. She was admitted to hospital in February 2017 after she was reported as suffering from [Medical Condition 1]. She has been receiving treatment since then for [Medical Condition 2]. She is continuing to receive treatment for [Medical Condition 3] and was required to give up her job due to the pain she was suffering from [Medical Condition 3]. She is in receipt of a disability parking permit confirming her incapacity.

27. The evidence in respect of her depression indicates a significant part of her condition is caused by a concern that the applicant would be required to return to China to file an offshore Partner visa application. The Tribunal accepts the applicant has been actively involved in the treatment and care of the sponsor and that any prolonged separation would adversely affect [the] sponsor.

28. The Tribunal accepts the applicant has been integral over the six years the parties have been married in providing assistance and care to the sponsor’s parents and her youngest child. The Tribunal accepts that any prolonged separation would adversely affect the care the applicant is able to be provided to the sponsor’s parents. The support provided by the applicant to the sponsor and her family is not only physical and emotional, but also financial. If the applicant were required to return to China to file an offshore Partner visa application it is likely to significantly adversely affect the sponsor and her family and cause significant hardship to them.

29. The Tribunal has considered all the circumstances of the applicant and the sponsor and her family. The Tribunal places significant weight on the information provided as to the sponsor’s mental health situation and in particular the admission to hospital in February 2017. When considered together, the Tribunal is satisfied that based on the circumstances described above there are compelling reasons for not applying the Schedule 3 criteria.

30. As the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria, the applicant meets cl.820.211(2)(d)(ii).

31. 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

32. 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) visa:

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

    Hugh Sanderson
    Member