Bloomfield (Migration)

Bloomfield (Migration) [2020] AATA 4882 (9 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Wai Ping Bloomfield
CASE NUMBER:  1823784
HOME AFFAIRS REFERENCE(S):          BCC2017/1941084
MEMBER:David Crawshay
DATE:9 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 09 October 2020 at 1:44pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – unaware that second student visa application had been refused – evidence of engagement with purported agent – long-standing relationship – separation and hardship – sponsor’s health and well-being – ties with the sponsor’s family – 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

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 is Mrs Wai Ping Bloomfield, 58, who is a citizen of Hong Kong Special Administrative Region of the People’s Republic of China.
The applicant applied for the visa on 31 May 2017 on the basis of her relationship with her sponsor, Mr Wayne John Bloomfield, 59. 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d) because the applicant lodged the application for the visa while she was not the holder of a substantive visa and there were no compelling reasons for not applying the criteria under schedule 3001. The delegate also made a finding against cl.820.211(2)(a), although no reasons were provided for this finding.
The applicant appeared before the Tribunal on 17 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, and from Mr Greg Bloomfield, the sponsor’s son, who appeared as a witness. The Tribunal was assisted by an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the hearing by way of a remote hearing on Microsoft Teams video (MS Teams). The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
EVIDENCE AT HEARING
Before hearing, the Tribunal received submissions from the applicant’s representative dated 9 September 2020 which argued that compelling reasons existed for not applying the Schedule 3 criteria owing to the actions of a former migration agent whom she engaged to deal with a second student visa application in June 2016 (the applicant was granted a first student visa in June 2015 and this was to be a renewal). According to the submissions, this migration agent made the applicant believe that her visa application was successful, when in fact it was refused in November 2016. The submissions said that the applicant did not find out about the refusal until August 2018 when it was documented in the decision record of the Department for the present matter. The submissions argued that this lack of knowledge about the applicant’s visa status due to “misinformation” provided by her former agent was a factors that was beyond her control.
At hearing, the applicant developed further on this point. She told the Tribunal that when she was applying for her second student visa, she thought that everything was fine with her former agent. She said that, because she was not informed of anything, she thought all was going well. When asked by the Tribunal who the agent was whom she had engaged, she said that he was Sydney-based. She said that his name was Jason. The Tribunal asked the applicant to clarify that the agent did not tell her anything about the second student visa application, and she said that nothing was communicated and she was misled to some degree. The Tribunal asked the applicant to clarify if there was perhaps a miscommunication between the agent and her. She replied that she thought she was misled, treated unfairly and scammed in some way. The Tribunal asked whether the applicant went to complain to the relevant association, and she said that she only became aware of the rejection much later in 2018 at which point she was in another location and looking after the sponsor on a daily basis, although she did say that she asked a friend in Sydney to track the agent down.
The Tribunal asked the applicant if there was any evidence in relation to the agent, including engaging the agent, or talking to friends about tracking down the agent. The applicant said that her telephone was stolen and she does not have the evidence of correspondence for that period. The Tribunal put it to the applicant that emails are mainly kept with the email service itself and not the device. The applicant said that her correspondence with the agent was mostly over the telephone and emails were not used. The Tribunal asked her how she would have sent evidence to the agent without using email. The applicant said that she did not think this evidence would be important, so it was not taken when she moved. The Tribunal said that it would have thought that she was sending evidence through emails. The applicant replied that she had no emails between her and the agent. She said that they talked over the telephone, and that she went to the office to hand over documents.
The Tribunal asked the applicant what the agent’s address was in Sydney, and she said that she was not sure as she had only been there once. She said that it was somewhere in the city, in a building of 13 floors. She said that she handed over money and signed something. The Tribunal put it to her that this statement contradicted somewhat her earlier evidence that she had gone to the office once to hand documents over. It asked her whether she had, in fact, visited there more-than-once. The applicant replied that she only visited there once with a friend of hers to hand money and to sign something. The Tribunal put it to the applicant that there were two applications. The applicant replied that she only went there for the first student visa application and was not there for the second visa application. The Tribunal asked the applicant how she was able to send evidence to her agent. She replied that this was why she was scammed, because she visited once and handed over money and there was nothing else. The Tribunal asked the applicant how she paid for the second student visa application, and she replied that the money was handed over at a restaurant in Chinatown after having talked over the telephone. The Tribunal asked when this was, and the applicant replied that she thought it was in June 2015, before saying that it was in June 2016.
The Tribunal at this point told the applicant that it was struggling to believe that there would not be some kind of evidence to show that she engaged the agent not once, but twice, and over two years. The applicant told the Tribunal that she was telling the truth. The Tribunal put it to the applicant that her version of events may be implausible where there is no evidence to show that she ever engaged the agent and the Tribunal considers it reasonable that there would be evidence where she had engaged the agent twice over the space of a couple of years. The applicant again replied that she was telling the truth, that all communications with the agent were over the telephone and this telephone was stolen, and that she had met the agent twice – once in the office where she gave him money for the first application which went well, and the second time for the second application which was done in a restaurant.
The Tribunal adjourned and following the adjournment the Tribunal again put its concerns to the applicant. She replied that she wanted to clarify because she was a bit nervous before and was not understanding the Tribunal’s questions correctly. She said that the first time she met with the agent was to give money and her passport details. She said that the second time was an exchange of money. The Tribunal put it to the applicant that a student visa would involve giving over quite a bit of evidence, and asked her what kind of evidence she needed to give over. She replied that because she was coming over from Hong Kong, she only gave over evidence that she was permitted to enter into Australia from Hong Kong and her passport. The Tribunal asked whether she needed to give over evidence of being able to fund herself, and she replied that the agent did not ask for this evidence, and that was why in hindsight she thought she was being scammed. The Tribunal asked why they would scam her the second time but not the first time, and the applicant replied that she only realised she was being misled when the second visa did not come through.
The Tribunal asked the applicant what her email address was, and she replied that she had a Gmail address with her name and a four-digit number (the claimed email address). The Tribunal asked if she had ever had any other email addresses, and she replied no. The Tribunal later showed the applicant a letter dated 17 June 2016 relating to her Bridging A visa which was associated with her second student visa application. The letter indicated that it was sent to a Gmail address that included the applicant’s name (the additional email address) – but this address was not the same as her current Gmail address. The Tribunal explained to her that this letter was on the Department file as it was sent by the sponsor (who at the time he sent it was her authorised recipient) to the Department during the application process for the present visa. It said to her that the fact that this letter was in the possession of her or of the sponsor suggested that the Department was sending correspondence in relation to the second student visa application to her and not to a representative. It told her that it suggested there was no representative in relation to her second visa application or, if there was a representative, the representative was not also the authorised recipient of correspondence. The applicant said that she did not receive the result of the second student visa application. The Tribunal asked if this was because she had changed email addresses. The applicant said that she had no idea, but repeated that she did not receive the result of the second student visa application.
The Tribunal put it to the applicant that, if correspondence from the Department such as the approval letter in respect of her first student visa were sent to her agent, it should have the agent’s address on it.
The Tribunal asked the applicant if there were any other compelling reasons for not applying the Schedule 3 criteria. The applicant said that the parties are a close family unit – they have spent four years together, including time where she has looked after the sponsor’s grandchildren. She said that she has a plan to undertake further study of English so that the parties can communicate better with each other. She said that if she were to return home, it would be just herself as she had no children and her other family members all have their own families. She said that the sponsor had just found a new job and she thought it would be hard on the sponsor because he would travel with her if she were to leave Australia.
The Tribunal then interviewed the sponsor.
When questioned on the applicant’s second student visa application, the sponsor said that she used the services of a man called Jackie in Sydney. He said that the first time he saw that the second student visa application was rejected was in August 2018. He said that he was not aware of the applicant operating any other email address, including the additional email address.
The sponsor told the Tribunal that the parties had been together for four-and-a-half years and they had settled in as a family with his nine grandchildren. He said that because of the pandemic he cannot travel anyway and the applicant would not be able to travel. He said that the parties had done everything by the book and he would be devastated if she were sent to China.
The Tribunal interviewed the sponsor’s son, Mr Greg Bloomfield, as a witness. Mr Bloomfield told the Tribunal that he was not aware of the student visa situation regarding the additional email address. He said that the sponsor was distraught. He said that the sponsor was the fittest, happiest and healthiest that he had ever seen. He said that the parties are happy and genuine.
The representative told the Tribunal that the starting argument in relation to the Schedule 3 criteria was the actions of the applicant’s previous agent which he characterised as being out of her control. He told the Tribunal that he wanted to “investigate” the email issue which meant gathering some more supporting documents as he felt the applicant was stressed at the hearing and there may have been some things she could not remember.
The representative said that email was not a major way of communication for the applicant, rather she used telephone calls and WeChat. He said that this might have explained why she had no visibility of the correspondence from the Department and why she appeared to have very little knowledge about what happened with her emails. He said that if the representative were to go down the path of being unethical, of which he admitted there was no evidence, he may well have just filled out the application with her email address back then.
The representative submitted that the applicant has established her life here and it would be very hard for her to start again in Hong Kong or Shanghai where she has no support. He said that there would be an impact on the sponsor and on the sponsor’s nine grandchildren. He said that the sponsor is willing to go with the applicant to China and so this would also have an impact on the business that the sponsor is working for.
The representative lastly submitted that the travel ban would not be in the applicant’s favour.
The representative asked for the opportunity to investigate. The Tribunal asked what he intended to investigate, and he replied that he was trying to get more supporting evidence to say that the agent did not do his job. He said that he might be able to recover the password of the additional email address to find the emails. He said that he might be able to get evidence to show that someone other than the applicant lodged the application with the additional email address as the contact. The Tribunal put to the representative that the applicant should have received the refusal letter if other correspondence were received at the additional email address – unless something happened but there was no evidence to show this. The representative replied that he understood the Tribunal’s point. He said that it might not be a matter of the email not being delivered to the additional email address, rather that she did not check the email service. The representative told the Tribunal that, if this were the case, she may not have known to check her emails for correspondence. The representative told the Tribunal that he was minded to lodge an FOI request for evidence of lodgement of the second student visa application and details that might reveal the agent. The Tribunal replied that while it was happy to allow some time to gather information, it was not prepared to give an open-ended amount of time for this purpose given that the representative had already had notice of this issue. The Tribunal gave the applicant 14 days to provide further evidence.
On 30 September 2020 the applicant’s representative provided documents on her behalf that comprised submissions, medical documents in respect of the sponsor, an undated letter from the sponsor, letters from the sponsor’s son, daughter and daughter-in-law, and three photographs of the applicant around the sponsor’s family.
In his submissions of 30 September 2020, the representative made the following further claims in support of compelling reasons:
·The sponsor would be forced to depart Australia so that the parties can continue to live together in Shanghai; however, given difficulties associated with obtaining visas for China it is unlikely he would be able to travel for the foreseeable future;
·Even if they were both able to travel to China, it is unlikely that they would obtain employment, and would not have the capacity to establish and continue their lives there;
·The applicant’s immediate family members all have their own commitments and it would not be possible for the parties to draw any substantial support from them;
·The sponsor, who has suffered from a heart failure incident in 2019 and who is on several types of prescription medicine, would see his health and well-being severely impacted if he were to travel to China – where healthcare is seen as subpar; and
·The applicant has developed deep personal ties with the sponsor and the sponsor’s family, and she provides care and support to all of the applicant’s nine grandchildren, some of whom have health conditions.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the relevant Schedule 3 criteria and, if not, whether those criteria should not be applied.
Does the applicant meet Schedule 3 criteria, or should those criteria not be applied?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.
The applicant’s migration history, as extracted from the delegate’s decision which was given to the Tribunal by the applicant, is as follows:
·On 28 October 2014, she arrived in Australia on a Visitor visa (UD-601);
·On 13 May 2015, she applied for an Independent ELICOS Sector visa (TU-570), which was granted on 23 June 2015 and ceased on 29 June 2016;
·On 17 June 2016, she applied for a Vocational Education and Training Sector visa (TU-572), which was refused on 22 November 2016;
·On 31 May 2017, she applied for a Partner (Temporary) visa (UK-820)/ Partner (Residence) visa (BS-801).

As above, the applicant’s last substantive visa – her Independent ELICOS Sector visa (TU-570) – ceased on 29 June 2016. This means that the relevant day was 29 June 2016. The application for the present visa was made on 31 May 2017, which is not within 28 days of
29 July 2016.
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.
The applicant’s main claim in relation to compelling reasons for not applying the Schedule 3 criteria is that she was not aware that her second student visa had not been refused, and that she had fallen victim to a representative who had not informed her of this refusal. But for this unfortunate situation, argued the applicant, she would have lodged the present application within the allowed time. However, and to the extent that these circumstances would amount to compelling reasons by themselves or cumulatively, the Tribunal does not accept that they existed. While the Tribunal has heard and considered the applicant’s evidence, it finds that there is a ring of implausibility about it. The applicant had few details about the purported agent, including his name and the address of his offices. She also gave seemingly inconsistent information about the meeting or meetings that she had at the purported agent’s office, first stating that she went there once to hand over documents, but then later saying that she went there to hand over money and sign something. This implied that either another meeting took place or she gave inconsistent information about the one meeting that took place. Lastly, the Tribunal has difficulty accepting that there would be no evidence of her engagement with the purported agent where she claimed to have engaged him on two occasions. Furthermore, the Tribunal prefers and gives more weight to other evidence, including especially the notification letter for the Bridging A visa associated with the second student visa application, that points to the applicant being nominated to receive correspondence in relation to that application and not a representative as claimed by her.
Based on the evidence before it, the Tribunal is not satisfied that the applicant engaged an agent to help her with at least the second student visa application. It finds that the refusal letter for the second student visa application was sent to an email address associated with the applicant. Even if the applicant engaged an agent who unknowingly nominated her email address, as appeared to be advanced by her representative at hearing as at least being a possibility, the evidence in front of the Tribunal demonstrates that the applicant was at some time able to access emails from the additional email address. In these circumstances, it is not satisfied that the applicant failed to receive the refusal letter. It finds that she was either aware of the refusal of the second student visa or ought to have been aware – in both cases, it considers that these circumstances were not out of her control as claimed by her representative. To the extent that the circumstances claimed by the applicant amount to compelling reasons, they do not exist here.
Another claim put forward by the applicant in support of having compelling reasons in that the parties’ relationship is genuine. At the Department stage, the parties had submitted some evidence that sought to attest to the genuineness of their relationship, including declarations and other letters from friends and family, relationship statements, correspondence addressed to one or both of the parties, bank statements, evidence of trips taken together and photographs of the parties with family and friends. The parties have since presented additional evidence, such as subsequent relationship statements, letters and statements from friends and family and an undated letter from the sponsor. At hearing, the parties and the sponsor’s son provided testimony as to the genuineness of the parties’ relationship.
The Tribunal has chosen to not make a finding on whether the parties’ relationship is genuine and continuing. It notes in this regard that a genuine relationship between the parties would not, of itself, satisfy it that compelling reasons exist for not applying the Schedule 3 criteria – not least because a necessary criterion for the grant of a partner visa under cl.820.211(2)(a) is that the relationship between the parties be genuine (among other things). Moreover, while there may be some level of hardship experienced by parties who are separated due to the applicant applying for a partner visa offshore, such separation and hardship is common to most if not all parties in this situation and, frankly, it would be unusual if there were not some level of hardship involved. In this way, the fact of the separation or even the hardship involved would not, of itself, satisfy the Tribunal that compelling reasons exist for not applying the Schedule 3 criteria unless there was something about the separation or hardship that made it so.
Although the Tribunal has not made a finding on the genuineness of the parties’ relationship, it is mindful that a relationship that is a long-standing relationship of two years or more may justify not applying the Schedule 3 criteria due to the hardship that results if those criteria were applied: Explanatory Statement, Migration Regulations (Amendment) 1996, No. 75, cl.10. A cursory glance over the evidence of the parties’ claimed relationship shows that they claim to have met in June 2015, to have committed to a shared life together to the exclusion of all others in June 2016 and to have married later that year in November 2016. The Tribunal finds that, as at the time of application in 31 May 2017, the parties had known each other for just under two years and to have been in a committed relationship for less-than-one year. With the passage of time between the date of application and now, the parties’ relationship has been on-foot for almost four years. The Tribunal considers that the parties were not in a long-standing relationship at the time of application, although through evidence showing that the relationship is continuing, it accepts that the relationship is long-standing at the time of this decision. Notwithstanding, while the Tribunal accepts that the parties’ relationship is a long-standing one (albeit at the time of this decision), it is not satisfied that this fact alone amounts to compelling reasons for not applying the Schedule 3 criteria. Other incidents of the separation and hardship, either individually or cumulatively, must cause the Tribunal to be satisfied that those compelling reasons exist.
As above, further claims were put forward by the representative to the applicant in his submissions of 30 September 2020. Much of these submissions centred on the difficulties the parties would face in being able to stay together if the applicant were forced to leave Australia, or the difficulties they would face if in spite of this they were able to live together in China (including but not limited to financial difficulties). The submissions also spoke about the ties that the applicant has developed with the sponsor’s family.
The Tribunal has considered these submissions and the claims put by the parties and their representative on their behalf.
The Tribunal deals firstly with the claim that the parties would be unlikely to obtain employment in China, which in turn centres on the claim that the parties are both over the age of retirement (the pension age in China is 60 years for men, 55 for white-collar women and 50 for blue-collar women). Although this is not entirely true, as the sponsor is 59 years of age at the time of this decision, the Tribunal accepts that he is soon to hit the pension age. However, and even after taking this into account, the Tribunal finds that the representative’s claim is largely speculative. It finds that there is no evidence (including from the document submitted by the representative) to show that one or both of the parties would not be able to obtain employment even if they were at or near to the age of retirement. Alternatively, there is no evidence to show that the parties do not have the financial resources to support themselves while in China in the event one or both were not able to secure employment.
Aside from the above, the Tribunal notes that the decision for the sponsor to travel to China to live with the applicant is one for him to make. He may wish to travel with the applicant and risk not securing a job over in China or he may wish to remain in Australia and remit money to the applicant from his salary should he get a job here or from his savings.
The Tribunal deals next with the claim by the representative and repeated in the undated letter of the sponsor as well as by the applicant at hearing that the applicant’s immediate family members would not be able to support the parties because of their own commitments and because the applicant has been away for so long. The Tribunal accepts that the applicant’s immediate family members all have families of their own and/or are already involved in supporting roles. However, it does not accept that this fact alone precludes them from offering one or both of the parties (as the case may be) support when they are in China. Equally, there is no evidence that the applicant is estranged from her family so that she would not be able to ask for support. Although the parties and their representative point to the fact that the applicant has been away from her family for a while, evidence from the sponsor’s undated letter to the Tribunal suggests that the applicant and he enjoy a good relationship with them, speaking to them three-times-a-week. The evidence does not satisfy the Tribunal that the applicant’s family could not provide support to the parties.
Even if this were the case, the decision for the sponsor to travel to China is up to him. Were he to remain in Australia where he could provide financial support to the applicant by way of money transfers, then the Tribunal reasonably considers that her need for support from family, at least financially, would be lessened.
The Tribunal notes the claim by the representative that the sponsor’s health and well-being may suffer if he were to live in China given his pre-existing conditions and the state of the Chinese medical system. It accepts that the sponsor suffered from a diagnosed heart failure in May 2019 and that he was prescribed a range of medications of which he is still prescribed several, although no evidence has been provided about how his condition has been managed recently which would be important in ascertaining his need for ongoing care. This evidence may have included results of blood tests that were requested on 22 July 2020, but these have not been forthcoming despite the request form being on file.
The Tribunal is not satisfied, however, that his health and well-being would be severely impacted if he were to live in China due to its system of healthcare as claimed by the representative. The report cited by the representative in his submissions in support of the “subpar” nature of the Chinese healthcare system is dated January 2011 and would be highly unlikely to reflect the current situation of China’s healthcare. For this reason alone, the Tribunal has diminished the weight it places on the report. To the extent that the Tribunal relies on the report, however, it finds that it does not appear to substantiate the agent’s claims regarding the “subpar” performance of the Chinese healthcare system. Although it states that “[t]he quality of medical services remains to be seen”, the report is broadly positive about China’s progress towards meeting goals in healthcare, stating that “PRC leaders have made significant progress in a relatively short period to improve the healthcare system”. The report also spoke about one of those goals being to provide affordable healthcare to the country’s entire population by 2020.
Moreover, the part of the report quoted in the submissions, namely:
Chinese citizens had become increasingly dissatisfied with the healthcare system—which suffered from chronic government underfunding, urban and rural inequalities, and overpriced, low-quality products and services. The system had consequently left much of the population without access to medical care. [emphasis in submissions]
spoke to the situation as it existed in China at the beginning of the 21^st Century, and not as it existed in 2011 or even now. Lastly, the Tribunal does not consider it unreasonable to assume that healthcare would be more accessible in places such as Shanghai where the parties anticipate the sponsor will live if he accompanies the applicant to China.
Even if the Tribunal is wrong about this and the sponsor’s health and well-being were to be impacted, it is open to the sponsor to not live in China but to remain in Australia while the visa application is being processed where he has access to Australia’s healthcare system.
Most circumstances identified by the representative above that purport to be compelling are based on the sponsor moving to China to live with the applicant. As alluded to in the Tribunal’s responses above, such a decision is for the sponsor to make. Importantly, however, such a move may or may not happen based on the ability of the sponsor to secure a visa for China. In this regard, the representative has argued that the Chinese Visa Assessment Service Center in Adelaide is currently closed to applications other than those for necessary economic, trade, scientific or technological activities or emergency humanitarian needs. The Tribunal accepts that this is the case. It has not verified if the sponsor would be able to secure a visa by other means but accepts for present purposes that he might not be able to do so for a while. In any case, controls on Australian citizens and permanent residents trying to leave may restrict the sponsor’s ability to travel to China.
In light of this, the Tribunal concedes that it might be difficult for the sponsor to visit the applicant in China (at least in the foreseeable future). However, it is not uncommon for couples to spend time apart, even on an extended basis, during an application process, and the Tribunal accepts that the current pandemic poses additional challenges to parties being able to see each other while an off-shore application is being processed. Although the Tribunal accepts that there would be hardship involved with the parties having to live apart, it is not satisfied based on the evidence in front of it and in particular the parties’ circumstances that this hardship would amount to compelling reasons.
The Tribunal turns to the representative’s claim in relation to the deep personal ties the applicant has developed with the sponsor’s family. In support of this claim are three letters from members of the sponsor’s family as well as a letter from the sponsor and three photographs of the applicant with members of the sponsor’s family. The letters collectively attest to the level of interaction that the applicant has had with family members. The Tribunal notes this claim was also advanced orally by the representative and the sponsor at hearing.
The Tribunal has read and considered this information It accepts that the applicant has developed a relationship with the sponsor’s family. It accepts that she provides some level of care and support to most, if not all, of the sponsor’s grandchildren, including two that have ongoing health conditions. It accepts that these family members have responded positively to the applicant’s presence, especially since August 2020 when the parties moved to Adelaide.
However, the Tribunal is not satisfied that these circumstances are compelling. While the applicant has provided support to the sponsor’s family since the parties began living in South Australia in August 2020, it remains the case that for the vast majority of the time that the parties claim to have been in a relationship they have lived away from the sponsor’s family and most communications were by telephone. Based on this evidence, the Tribunal does not believe that the reliance these grandchildren and their parents have on the applicant will have developed to the point where it could be considered a compelling reason. Furthermore, it is open to the sponsor’s family to continue their relationship with the applicant (or both parties as the case may be) and for her to provide support via telephone or video calls, or by other media – in much the same way that occurred before August 2020 when the parties and the sponsor’s family were living in different states and time zones.
The Tribunal lastly deals with the claim, made orally at hearing by the representative, that the sponsor’s departing Australia to travel to China would have an impact on an Australian business. This argument appears to be based on the sponsor currently being employed, although it is not entirely clear from the evidence that he has commenced employment yet. In his undated letter to the Tribunal, the sponsor said that he has job offers in Western Australia and South Australia but not until mid-October 2020. At hearing, the applicant told the Tribunal that the sponsor had just found a new job. If the sponsor has indeed commenced employment, then the Tribunal reasonably considers that he would not have been in his job for long enough for his absence to have had a major effect on his employer. Without more evidence, these circumstances do not give rise to compelling reasons.
The Tribunal has had regard to evidence on the Department and Tribunal files, as well as the parties’ testimony and the testimony of one of the sponsor’s sons as their witness at hearing. It has considered the claims of the parties individually and cumulatively. It does not doubt the sincerity of the sponsor’s evidence and that he has only tried to help the applicant during the process. It also does not doubt that there will be some level of hardship if the parties are separated during the process of an off-shore partner application. However, while the Tribunal accepts that the parties have been in a long-standing relationship at the time of this decision, it is not satisfied that this and other claims, either by themselves or collectively, constitute compelling reasons for not applying the Schedule 3 criteria.
Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
The Tribunal is not satisfied that the applicant meets any of the alternative subclauses in cl.820.211.
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.
David Crawshay
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.

[2020] AATA 4882

9 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction