1802245 (Migration)

[2019] AATA 4957

1802245 (Migration) [2019] AATA 4957 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802245

MEMBER:Ann Duffield

DATE:23 August 2019

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 23 August 2019 at 1:08pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – not holder of substantive visa at time of application – unlawful non-citizen – compelling reasons for waiver – genuine spousal relationship at time of application – motivation at inception of relationship – development of genuine loving relationship – sponsor’s health condition – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

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 Home Affairs 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 3 March 2017 on the basis of her relationship with her 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). 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 because the delegate was not satisfied that the applicant was the spouse of the sponsor within the meaning of the Act or that there were any compelling circumstances to waive the requirements of Public Interest Criteria (PIC) 3001.

4.    The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

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 matter should be remitted for reconsideration.

BACKGROUND

7.    The parties provided the Tribunal with a copy of the delegate’s decision along with the application for review.

8.    The applicant is a citizen of China born on [date]. She has declared a previous marriage and a son from that marriage. She first arrived in Australia [in] September 2009 as a visitor. She returned in January 2010 and has remained here since. She divorced from her first husband in 2013.

9.    The applicant made an application for a Protection visa in 2010 claiming persecution as a member of Falun Gong. She neither appeared in person for an interview with the delegate or at the review hearing to which she had been invited by a previously constituted Tribunal. She was granted bridging visas in association with these applications which ceased on 4 March 2011. The applicant remained unlawful until she lodged the application for the partner visa subject to this review on 3 March 2017.

1. The applicant claims that she met the sponsor on 23 August 2013 through a friend’s connection to a marriage agency called “[Agency 1]”. They were married [in] December 2013 at the agency.

2. Despite speaking no English the applicant accepted an invitation to the sponsor’s home for the weekend on the day that they met. He invited her to move in with him by the end of their first week together and she agreed. The parties claim to have been living together since that time, firstly in [City 1] until May 2015 and then in [City 2]. She claims not to have done any paid work until they purchased a [shop] together in 2016. The parties claim to be running that business together since that time.

3. The sponsor is a citizen of Australia born on [date]. He has declared a previous marriage which ended in divorce in 1998. There is one child from this relationship, a son born in [month, year].

4. The sponsor has also declared that when he was [age] years old he served [number of] years for armed robbery and manslaughter. He claims he killed the man who raped and killed his god daughter. His armed robbery convictions were to pay for his heroin addiction.

5. The sponsor claims to have committed no violent crimes since then and has not imbued alcohol or illicit substances. He obtained a [degree] whilst in prison and had an impressive career in a variety of fields over the years.

6. The sponsor claims that around 2010 to 2013, memories of his past came back to him and he tried to commit suicide twice. He said that the applicant is the only reason he is alive and he doesn’t need to have anyone else in his life to speak to or be with. He claims that if she is required to leave Australia he will commit suicide.

7. The parties claim that the sponsor was hospitalised in September 2014 for two and a half weeks. The sponsor has provided further medical reports dated November 2018 which also record a hospital visit in September 2014.

8. The sponsor has [Medical Condition 1] and suffers from [Medical Condition 2] and takes significant medication for a variety of other ailments.

9. The sponsor has provided a psychological report on the sponsor dated 16 January 2017 stating that the sponsor and the applicant are co-dependent and cannot survive without each other.

10. The sponsor has provided a letter dated 26 September 2018 stating that the sponsor was hospitalised in April 2018 with [Medical Condition 3].

11. The sponsor has also provided a copy of his will naming the applicant as his beneficiary. Prior to the Tribunal hearing the sponsor also provided a statutory declaration (undated and unsigned but assumed to be in around mid-2019)  wherein he made a number of claims including the following:

    a.He was admitted to hospital in early 2018 suffering from [Medical Condition 3];

    b.He has not been able to work since then and has limited mobility;

    c.The applicant has provided him with ongoing 24 hour care for many months;

    d.In early 2019 he was admitted to hospital again after the applicant called an ambulance because he was suffering from chest pains. He had surgery and heart stents were inserted into his heart. He was discharged from hospital in July 2019 and is recovering at home. There is a letter from [Hospital 1] confirming his admission; and

    e.The sponsor and his doctors submit that the sponsor has a multitude of health problems along with his [Medical Condition 3], including [Medical Condition 4], which remains untreated.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the parties are in a genuine, ongoing and exclusive spousal relationship envisaged by the Act and whether there are compelling reasons to waive the requirements of Schedule 3 to the Regulations.

SCHEDULE 3 CRITERIA (CL.820.211(2)(D))

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

1. 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).

2. 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

1. 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.

2. There is no question that the application was made well after 28 days of the relevant day, being the cessation of her substantive visa, and there are no compelling reasons outside the applicant’s control for not lodging a relevant visa or not regularising her immigration status during her more than six years of being unlawful. The applicant does not satisfy criterion 3001.

Compelling reasons

1. 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.

2. 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.

3. The Tribunal is not persuaded that the marriage between the applicant and the sponsor was entered into with genuine intentions on either part to enter into a marriage envisaged by the Act. They essentially moved into together the day they met and were married a short time afterwards at the agency that arranged their match. Whilst both parties claim it was love at first sight when they met, the more likely explanation is that the sponsor was looking for a carer and the applicant for an opportunity to regularise her migration status. Indeed the applicant herself admitted in the hearing that she joined the agency with the specific purpose of finding someone to marry so she would not have to go back to China.

4. The review applicant claimed that he was aware of the applicant’s illegal status for many years but did not want to rock the boat as he was afraid of what would happen to the applicant. He said he could not bear to be parted from her.

5. The Tribunal has very strong views about the use of the Act and program in this way and is also strongly of the view that such brazen abuse should not be rewarded.

6. Be that as it may and despite its inauspicious beginnings, the Tribunal does accept that the relationship between the sponsor and the applicant has developed over their many years together into a genuine loving and mutually committed spousal relationship.

7. The parties married some four years after their initial meeting in 2013. At the time of application in 2017, therefore, the Tribunal is also satisfied that they were in a genuine, ongoing and exclusive spousal relationship at the time of the application.

8. The evidence to support this finding is admittedly thin. The applicant having been unlawful until she was granted a bridging visa in relation to this application in 2017 has no banking or employment records nor is she a signatory on any legal documents in relation to rental agreements or the purchase of their [shop]. She is essentially invisible.

9. It is clear that the sponsor has a number of critical health conditions and it is equally clear that the applicant has been his constant source of support and care during times of his critical illness, staying with him in hospital and taking him to his frequent appointments at the hospital and medical centre.

10. The Tribunal asked the applicant what made her relationship with the sponsor a marital relationship as opposed to her being a housekeeper and carer. The applicant told the Tribunal that they love each other and have a strong emotional investment in one another. She said that she can’t imagine being separated from him.

11. The sponsor is currently limited in his mobility and walks assisted by the applicant and a frame. His health prospects are such that he would be unable to travel to China if the applicant were required to depart. The sponsor told the Tribunal that he was in a coma for seven weeks and the only thing he remembered was the applicant holding his hand. He said that she was there every day all day. The hospital confirms this.

12. The Tribunal put to the applicant that he would be able to access in home care and the benefits of Australia’s medical system. The sponsor said that he was too young to benefit from a package and would be left to fend for himself during a time of precarious health and be denied the extensive care and attention provided to him by his wife.

13. In the Tribunal’s mind, there is no purpose to be served to require the applicant to go offshore to lodge a partner visa application, particularly in light of the fact that the Tribunal has found that they are in a genuine, ongoing and exclusive spousal relationship.

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

CONCLUSION

1. Given the findings above, the Tribunal finds that the correct and preferable decision is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

DECISION

1. 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 of Schedule 2 to the Regulations

   ·cl.820.221 of Schedule 2 to the Regulations

Ann Duffield
Senior 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.