1814651 (Migration)

1814651 (Migration) [2019] AATA 4216 (29 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1814651
MEMBER:Rosa Gagliardi
DATE:29 July 2019
PLACE OF DECISION: Melbourne

DECISION:
The Tribunal affirms the decision not to grant the

applicant a Partner (Temporary) (Class UK) visa.
Statement made on 29 July 2019 at 1:40pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – genuine relationship – exclusion period – lengthy unlawful status – history of misleading immigration authorities – credibility issues – lack of supporting evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211; 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

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).
The applicant applied for the visa on 14 July 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations because it was considered that there were no compelling reasons for waiving the Schedule 3 criteria to enable the applicant to lodge a Partner visa onshore.
The applicant appeared before the Tribunal on 8 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsor and putative spouse, [name deleted], an Australian citizen. The sponsor’s mother and brother also gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
SCHEDULE 3 CRITERIA (cl.820.211(2)(d))
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.
Background
The applicant first arrived in Australia as the holder of a Student (subclass 571) visa which ceased on 15 March 2010. On 13 November 2009 she lodged an application for a further stay Student (subclass 572) visa which was refused on 26 March 2010. The refusal decision was reviewed by the Migration Review Tribunal (MRT), as it was then called and the decision was remitted to the Department with the direction that the applicant met certain criteria for the grant of the visa.
On 6 March 2012 the further stay Student visa was refused as the applicant failed to meet the outstanding criteria and her migration agent was unable to contact her. She had this decision reviewed at the MRT but the request for review was withdrawn on 17 September 2013. The applicant then remained in Australia unlawfully for over 4 years, during which time the applicant did not attempt to regularise her status in Australia.
On 30 June 2017 the applicant lodged a Partner (subclass 820/801) application. This application was found to be invalid and the applicant then lodged a subsequent Partner application on 14 July 2017 which is subject of this review.
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.
The applicant last held a substantive visa on 15 March 2010. This application was lodged on 14 July 2017. As the visa application was not made within 28 days of the relevant day, the applicant 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.
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.
In passing, the provisions are not intended to facilitate persons who:
·Fail to comply with their visa conditions; or
·Deliberately manipulate their circumstances to give rise to compelling reasons; or
·Can leave Australia and apply for a Partner visa outside Australia.
Prior to the Department making its decision on 7 May 2018, the applicant put forward in a letter that she had travelled to Australia to obtain a better education. She stated that while commencing her final year of high school in 2009, her student visa required an extension but she was unable to satisfy the requirements. She continued to study for a [Certificate 3] but could not obtain the diploma as the education provider had closed down due to financial issues in 2010.
The applicant stated that as she had not heard from the Department she changed her course and commenced studying at [another institution]. She stated that she was homesick during this time and did not want her parents to keep spending so much money on her, therefore she commenced working part-time.
The Department placed little weight on the applicant’s assertions as she was unable to provide evidence to support her claims. The Tribunal similarly places limited weight on the applicant’s assertions that she was unable to continue her education for reasons beyond her control. The applicant’s credibility in this regard is marred given the subsequent events where she continued to remain in Australia unlawfully for four years until she decided to engage with immigration officials again because her circumstances were conducive to her applying for a Partner visa on 14 July 2017.
In any event, even if the Tribunal accepts that the applicant had indeed had difficulties as she claims, the Tribunal is unable to ascertain how such circumstances are compelling as to move the Tribunal to waive the Schedule 3 based on her evidence only.
The Tribunal was disturbed to know that the sponsor had been married previously to a non-citizen and that he continued to sponsor that woman even though the relationship had broken down and he had started a relationship with the applicant. The applicant and sponsor were both open about the fact that the sponsor continued to sponsor his former wife for the sole purpose of enabling her to obtain permanent residency, and that she did gain permanent residency on the basis of the sponsor’s misleading conduct.
The applicant stated that she met the sponsor in 2012 and that the reason she waited until 2017 to file a Partner visa on the basis of her relationship with the sponsor, was because the sponsor was barred from sponsoring a further partner immediately because he had sponsored another person within the previous 5 years. The sponsor stated that he felt he ought to keep sponsoring his former wife because he owed it to her.
The Tribunal has had regard to the reasons submitted as to why the applicant had deliberately delayed lodging her Partner visa application but is not persuaded that these circumstances amount to exceptional circumstances. On the contrary, the parties had deliberately enabled someone to become a permanent resident who was not eligible to meet the criteria, and then waited 5 years before the applicant emerged from her unlawful status, when the sponsor was able to sponsor her because the exclusion period was extinguished by virtue of the lapse of time. The Tribunal considers that it was open at any time for the applicant to go offshore after she became unlawful to pursue the relationship with the sponsor rather than wait onshore until the sponsor was able to sponsor her again.
The Tribunal does not attribute complete blame to the applicant for the sponsor’s conduct in manipulating Australia’s migration regime for the sole purpose of achieving a migration outcome for his former spouse. Indeed, it appeared that the sponsor’s continued loyalty to his former wife was a source of tension and conflict in their relationship. Prior to the parties entering the relationship the applicant had asked the sponsor whether he had a girlfriend and he had told her he did not. She then found out that he was actually married to someone else at the time they initiated their relationship, and that he wanted to continue to remain married so that his then-spouse would attain residency. Nonetheless, the applicant was aware of her unlawful status and there does not appear to have been any compelling reasons as to why she could not, as she was required to do, leave Australia and lodge an offshore application well before she did so in 2017. Certainly, waiting onshore without a visa so that the exclusion period for sponsorship lapsed is not compelling.
The applicant stated after five years they thought to apply offshore (the Tribunal stated that there was no sign that they had made an effort to do so) and they had sought advice and she decided to leave the country, but then she found out that she was pregnant and she was advised that if she was pregnant she could apply onshore. She wanted to have her own family and the sponsor wanted to be present at the birth of his child. She also did not want to return to China to have the baby on her own. The applicant, however, had a miscarriage and it was a difficult time for her. The Tribunal asked the applicant why she and the sponsor were attempting to have children when she knew that she did not have any lawful basis for being in Australia. The applicant stated that she had been in Australia for a long time. She had been upset that the sponsor had decided to sponsor his ex-wife in favour of herself. They argued but ultimately she gave in to the sponsor because he and his ex-wife had been in a relationship.
The Tribunal accepts that it is a fundamental right to have a family and also accepts that the miscarriage would have been a traumatic experience for her and the sponsor. Nonetheless, the Tribunal has little medical evidence before it that the miscarriage of the child so crippled the applicant that after a period she could not return to her home country and lodge a Partner visa offshore.
Having passed up the opportunity to lodge an offshore visa after the miscarriage, the applicant again became pregnant. The applicant at hearing stated that her father was in the construction industry in Fujian Province, China and there is little to indicate that she would not have been accepted into her family home on return and that her family would not have assisted support her during her pregnancy while the visa was being processed, even though the applicant argued that when she was pregnant the second time she would not have been able to get a job in China.
The Tribunal does not doubt that moving offshore on learning that she was pregnant may have caused some difficulty for the applicant and that she may not have had access to the same medical services she would have had in Australia. Nonetheless, the Tribunal does not consider that at that point in time, the applicant’s circumstances would have entailed such hardship as to find that they amounted to compelling reasons for waiving the Schedule 3 criteria. While the parties would have been separated for a period and the sponsor would have been separated from his child also, such separations are not uncommon, for example, in the case of persons who lodge a Partner visa offshore and conceive a child and the sponsor is required, due to work or other commitments, to return to Australia. The Tribunal is not persuaded that the applicant’s desire to have her child in Australia at that time, of itself, constitutes compelling reasons for waiving the Schedule 3 criteria.
The applicant also stated that her child had eczema and was treated in Australia. She stated that the condition had now stabilised but that while the creams in Australia only cost around $7 in China they cost $30. The Tribunal notes that the applicant and the sponsor confirmed at hearing that the condition of the child was under control and the Tribunal does not discount that it might not flare up again in another environment. Nonetheless, the sponsor did say that the condition could be managed in China except that she and her child would not have access to Medicare. Having weighed these current set of circumstances, the Tribunal is not satisfied that the child’s condition, which is now well managed and on the evidence of the applicant would continue to be managed in China, constitutes compelling reasons for the applicant not to be able to go offshore while her visa application is being processed. This is particularly so as the applicant stated that during a particularly rough patch in the relationship she had considered taking the child back to China to live with her mother and father leading the Tribunal to find that the applicant herself did not see any major obstacles to herself and her child living in China at any time, and possibly even permanently.
Other compelling reasons provided were that the sponsor’s mother had [Medical Condition 1] and required [treatment] every day. The sponsor’s brother also was [impaired]. The sponsor’s mother was the sponsor’s brother’s carer. The Tribunal accepts that in these circumstances it would be difficult for the sponsor to leave his mother’s household for any extended period and go offshore to see the applicant and his child. The Tribunal has taken the sponsor’s family responsibilities in this regard into account. Furthermore, it was argued at hearing as given the applicant and sponsor lived with the sponsor’s mother and brother that the applicant did play a role in assisting in the household with chores and taking both the applicant’s mother and brother to medical appointments.
Furthermore, the sponsor stated at hearing that they assisted his mother and brother with bills as the sponsor was working in [Industry 1]. The Tribunal noted that the sponsor’s financial position would be strong if he had worked previously as a Manager in [named company] and now in [Industry 1] and neither he, nor the applicant had ongoing commitments such as rent or mortgage repayments. The sponsor stated that he financially assisted their household, even though the Tribunal noted that the applicant’s mother and his brother would be in receipt of Centrelink payments in respect of their circumstances. The sponsor stated that they had not looked into care for his mother and his brother within the community because they were close.
The sponsor stated that actually he was not in a good financial position as he had been in a lot of debt due to his ex-wife’s expenditure and the fact that he had purchased a car for her. He also had many traffic fines to pay for that had in fact been incurred by his ex-wife, so it was only now that he was starting to get back on his feet financially.
The Tribunal has taken into account the sponsor’s mother’s evidence and that of his brother who is dealing with [an impairment]. The Tribunal has carefully considered whether the applicant’s presence in Australia is so necessary as to compel the Tribunal to waive the Schedule 3 requirements on account of their circumstances. While the Tribunal is in no doubt that the applicant plays a supportive role in the household of her sponsor, the Tribunal is not persuaded that any assistance the family may require would not be provided through community assistance, and depending on the severity of the sponsor’s brother’s [impairment], he would be eligible to receive services under the National Disability Insurance Scheme.
Finally, the sponsor stated that there was another factor that constituted compelling reasons for waiving the Schedule 3 criteria. He had been struggling with [drug abuse] and was now on a program monitored by his medical [practitioner]. He stated that the applicant and his child motivated him to try to deal with his problem and to continue to work. He was concerned that if the applicant went offshore he might lose his way and fall in with the wrong crowd again and might start re-using. He claimed that he had not used [Drug 1] for four months. The applicant was the one who had assisted him to get out of addiction. The Tribunal noted that this matter had not been raised by the applicant. Further, the Tribunal had little evidence before it that he was in fact on a program to withdraw from drug abuse.
The applicant confirmed that she had struggled in the relationship significantly due to the applicant’s untruthfulness about being in a marriage when she met him, as well as his addiction. The Tribunal found the applicant’s evidence in this regard credible. He had initially told her he was using [another drug] when in fact he had been using [Drug 1] since 2014. Nonetheless, the Tribunal asked for at hearing, and would have liked to see, medical evidence that the sponsor was currently being treated for serious drug addiction and that the applicant was playing a key role in his recovery. The Tribunal was clear at hearing that it would wait to receive such information but the parties have not submitted any such evidence as requested within several weeks of the hearing. Nor have they contacted the Tribunal to seek an extension for them to be able to provide such evidence.
The Tribunal accepts that the sponsor has had, and might still have, some difficulties with drug addiction, nonetheless, it is difficult to see how his circumstances are compelling without some authoritative evidence that it is compelling that the applicant and his child remain in Australia while he is undergoing the treatment, even if the Tribunal accepts that it is his preference.
The Tribunal encouraged the sponsor to talk about his bond with his child and why it was important for him that the applicant and his child remain in Australia while the applicant’s visa application was being progressed. He stated that he played in the afternoon with his child. He also stated that his concern was that the applicant would be taking his child away from him if she were to go offshore.

The applicant stated that when she had moved out previously for a period, the sponsor had been so desperate to get back with her he started drinking heavily and was not turning up for work. At that stage she had thought there was no chance they would get back together but he promised her he would get back on the program for addiction.
The Tribunal has considered the sponsor’s complex set of circumstances at home involving two of his family members requiring assistance. The Tribunal has also considered that the sponsor may not be able to visit China during the processing of the applicant’s visa given that he does not want to leave his mother and brother alone, and given that he claims to be on a program to help him with his drug addiction. Importantly, the Tribunal has also taken into account that an Australian citizen child is involved in this case and that the Tribunal ought to take into account how this decision will affect that child who has now also made an almost full recovery from difficulties with eczema. Nonetheless, having regard to the information before it, the Tribunal is not satisfied that either individually or cumulatively, the circumstances presented by the applicant represent compelling reasons for waiving the Schedule 3 criteria.
The parties had the opportunity to apply offshore for the applicant’s visa on several occasions (prior to having a child) to regularise her status after becoming unlawful in Australia. Her continued inaction in this regard led to her having a child in Australia who she now claims represents compelling reasons for waiving the Schedule 3 criteria.
The Tribunal has no doubt that the applicant and sponsor and their child will be inconvenienced and may experience some hardship for a period of time while the applicant’s Partner visa application is being considered while she and her child are offshore, but the Tribunal does not consider that such hardships amount to compelling reasons for waiving the Schedule 3 criteria. This is particularly so as the applicant has stated that she had considered in the past leaving Australia with the child, albeit possibly on a permanent basis.
The Tribunal also accepts that the sponsor would like the support of the applicant and his child while he deals with drug addiction but it appears that the sponsor has been struggling with this issue since 2014. However, there is little medical evidence before the Tribunal to assess whether the applicant is actually undergoing a program and how well the sponsor is progressing on any such program as to be of support to the applicant and his child, as well as his mother and brother as claimed.
The Tribunal also accepts that the sponsor’s mother and brother enjoy a degree of comfort in having the applicant in their home to provide support with household chores and transport to medical appointments, but there is little evidence that the applicant’s mother and brother are not entitled to some sort of governmental assistance given their circumstances.
The Tribunal is not making an assessment about whether the relationship is genuine or not. The fact the relationship has been troubled does not mean that it is not genuine. The struggles experienced by the parties exist even when two persons are strongly committed to one another. But given that it is a prerequisite that persons are in a genuine and continuing spousal relationship (as defined) for the grant of the visa, the Tribunal is not satisfied that of itself, or in combination with other factors, that the genuineness of the relationship gives rise to compelling reasons.
The Tribunal has also taken into account the applicant’s long history of evading Australia’s immigration authorities to facilitate the attainment, by a third party, to gain permanent residency in circumstances where that person was not entitled to do so. The Tribunal does not find this aspect of the applicant’s and the sponsor’s conduct determinative of the review, however, it plays a part in the Tribunal’s concerns about the parties deliberately manipulating their circumstances to give rise to compelling reasons, particularly when the applicant had several occasions, when she could easily have returned to her home country to apply for a Partner visa. The Tribunal appreciates that these matters are now historical and that as per Waensila the Tribunal needs to consider the applicant’s current circumstances.
Nonetheless, it cannot be said that the parties did not contribute to the circumstances in which they find themselves. Furthermore, even putting aside the sponsor’s conduct in misleading the immigration authorities, the Tribunal does not find that any of the circumstances either individually or holistically are such that they constitute compelling reasons for waiving the Schedule 3 criteria. The Tribunal concedes that the circumstances currently may be difficult, but the Tribunal does not accept that they are compelling.
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).
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.
Rosa Gagliardi
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.

[2019] AATA 4216

29 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal