Chang (Migration)

[2021] AATA 4312

Chang (Migration) [2021] AATA 4312 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jin Chang

CASE NUMBER:  1820866

HOME AFFAIRS REFERENCE(S):          BCC2016/4257196

MEMBER:David Barker

DATE:28 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal  remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

·Reg 1.20J for the purpose of cl.820.221 of Schedule 2 to the Regulations

Statement made on 28 October 2021 at 11:30am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limit – two previous sponsorships – long-standing and genuine relationship – compelling circumstances affecting sponsor – sponsor’s medical condition and applicant’s emotional support and contribution to sponsor’s business – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations, r 1.20J; Schedule 2, cl 820.211(2)(c), 820.221

CASE
Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77

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 (Cth) (the Act).

2. The applicant applied for the visa on 16 December 2016 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 (Cth) (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.820.221(4) because they determined there were no compelling reasons to not apply the sponsorship limitations arising out of the finding that the sponsor had sponsored two previous partners for Partner visas. 

4. The applicant appeared before the Tribunal  on 28 September 2021 by videoconference to give evidence and present arguments. The Tribunal  also received oral evidence from the sponsor. The Tribunal  hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   Background

6. The applicant is a national of China and is 48 years old. She first arrived onshore in January 2013 on a TU-573 Student visa, valid to  August 2014. The applicant was previously married from September 2008 to January 2014, with that marriage ending by divorce.  Her first husband did not  accompany her when she came to Australia. There were no children from that relationship. The applicant was granted a subsequent TU-573 visa, valid to August 2015, and in October 2015, a VC-485 Temporary Graduate  Work visa, valid until October 2017.  Form 80 Personal particulars for assessment, completed by the applicant  in association with her Partner visa application indicates that she was employed as a teacher in Fushuan City in China  from July 1995 to January 2013 and in Australia, from March 2013 to the date of visa application, as  a bookkeeper for Connect Xu Electrical Pty Ltd.

7. The sponsor arrived in Australia in 1989 and became an Australian citizen by grant in 2000. He was born in China and is 61 years old.    In the parties’ marriage certificate the sponsor is described as a self-employed electrical mechanic. The sponsor has previous relationships.

8. The sponsor was first married, from 23 August 1986 to 16 August 2000, with that marriage ending by divorce.  The applicant successfully sponsored his first wife for a Partner visa, resulting in the grant of a permanent Partner visa on 29 January 1998. This is not contested by either the sponsor or applicant.

9. The sponsor’s second marriage was from 4 November 2000 to 24 July 2014, with that marriage ending by divorce. The applicant successfully sponsored his second wife for a Partner visa, with her being subsequently  granted a Permanent Partner visa on 18 May 2001. This is not contested by either the sponsor or applicant.

10. The visa application states the parties first met  face to face in September 2012 in Singapore and committed to a relationship with each other to the exclusion of all others in May 2013.  At hearing the parties gave evidence that they initially connected online at a time they were separated, but not formally divorced from their previous partners. They were married in Parramatta, NSW in July 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant’s sponsor meets the sponsorship requirements.

12. At the time the application was made, 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).

13. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

14. On the basis of the available information the Tribunal  is satisfied the applicant meets the criteria established in cl.820.211(2)(c), because at the time of application the applicant was sponsored by an Australian citizen over the age of 18 years.

15. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.820.221.

16. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a Partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the family violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal  on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

17. The evidence demonstrates that the sponsor previously sponsored a partner in relation to her application for a Combined Spouse (Subclass 309/100) visa, which was granted  on 29 January 1998; and a further partner in relation to her application for a Combined Spouse (Subclass 820/801) visa, which was granted  on 18 May 2001. The Tribunal  is satisfied that these previous visa applicants were respectively granted a relevant permission, in relation to a Combined Spouse (Subclass 309/100) visa and a Combined Spouse (Subclass 820/801) visa on the basis of their being, at the time, the spouse of the sponsor. Accordingly, as the sponsor has previously successfully sponsored two former spouses the Tribunal  finds that the approval of this sponsorship is limited under r.1.20J(1)(a).

18. Regulation 1.20J(2) however provides that the Tribunal  may approve the sponsorship of an applicant if the Tribunal  is satisfied that there are compelling circumstances affecting the sponsor.

19. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal  must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal ] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

20. The legislative intention of r.1.20J can be found in the Explanatory Statement which indicates that the Minister can approve sponsorships or nominations if ‘compelling circumstances’ affecting the sponsor exist (Explanatory Statement to SR 1996 No. 211 - Migration Regulations (Amendment) 1996 No. 211).  These include:

    ·The previous spouse or interdependent partner has died.

    ·The previous spouse or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support.

    ·The new relationship is long-standing.

    ·There are dependent children of the new relationship.

21. These examples are not exhaustive. Departmental guidelines emphasise that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions.

    Departmental guidelines also emphasise that every aspect of the sponsor’s circumstances is relevant to the existence of compelling circumstances and that no definitive list can be given. The guidelines, do, however, note the following aspects which may be particularly important.

    ·     the nature of the hardship or detriment that would be suffered (by the sponsor) if the sponsorship were not approved; and

    ·     the extent and importance of the ties the sponsor has to Australia, and the consequent hardship or detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

22. Neither of the spouses the sponsor previously sponsored is reported to be deceased.  Both of these previous marriages are reported to have ended in divorce.  There are no children from the parties’ relationship. The Form 40SP ‘Sponsorship for a partner to migrate to Australia’ provided to the Department with the visa application states there was a child from each of the sponsor’s first two marriages, born respectively in 1987 and 2000. However, there is no evidence before the Tribunal  to demonstrate the applicant has any care responsibilities towards these children, or as to any detrimental impact on her, in terms of these children, if the sponsorship is not approved.

    The length of the parties’ relationship

23. The parties claim to have been in a committed relationship since they established a household together in May 2013 and have provided a range of documentary evidence and photographs to support this claim. The Tribunal  has  reviewed this evidence and is satisfied it supports the parties claim that their relationship is genuine and that they have an emotionally close and committed relationship.  In making this finding the Tribunal  is satisfied the applicant has provided photographs documenting the parties’ relationship over time, which display a degree of spontaneity, variety and naturalistic qualities which leads to a view that they were not produced purely for the purpose of supporting a visa application.  The Tribunal  accepts the support letters and declarations from friends demonstrate the parties present to the community as a genuine couple and that the witness support and photographs show the parties share interests and social activities. The Tribunal  accepts the applicant  works in the sponsor’s business, Connect Xu Electrical Pty Ltd, but has no concern that this indicates that their connection is purely through the workplace.

24. In relation to this factor the Tribunal  finds the parties’ relationship has a duration in excess of eight years and is appropriately regard as a  genuine and long standing relationship.  The Tribunal  has placed weight on this factor as an indicator there are compelling circumstances affecting the sponsor which warrant the Tribunal  exercising the discretion to approve the sponsorship.

    Detrimental impacts if the sponsorship not approved

25. At hearing the parties emphasised the emotionally close and supportive nature of their relationship. The sponsor gave evidence that he suffers from [Medical condition] and relies on support from the applicant in relation to controlling his diet and monitoring this condition.  He said that in the event the sponsorship is not  approved and the applicant  needs to return to China, he would not  be able to accompany her long term, as he is an Australian citizen and would not be able to easily access health care in China, or remain there indefinitely.  He said this would result in the breakdown of their relationship at a stage of his life where he is getting older and has increasing need to be able to rely on a partner for practical support and companionship.

26. The sponsor gave evidence that he is an electrical mechanic and runs a business with a focus on installing air-conditioning in commercial facilities.  It has been significantly impacted by the current Covid-19 pandemic and the applicant’s role as the bookkeeper in the business is something the sponsor has grown to rely on.  He gave evidence that the business would likely fail if the applicant  had to return to China, through the withdrawal of her role in the business, but also as disruption associated with such a scenario would affect his  wellbeing such that he would have difficulty running the business.

27. The Tribunal  accepts the parties’ evidence that they are in an emotionally close and supportive  long standing relationship and that the sponsor would experience adverse impacts upon his physical health, emotional wellbeing and business interests in Australia if the sponsorship is not approved. The Tribunal  has  considered these factors cumulatively and is satisfied that provide compelling circumstances as to why the Tribunal  should exercise the discretion available to it to approve the sponsorship. The Tribunal finds that the provisions of r. 1.20J(2) are satisfied.

28. On the evidence before the Tribunal  the requirements of cl 820.211(2)(c) and r 1.20J for the purpose of cl 820.221 are met.

29. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

30. The Tribunal  remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(c) of Schedule 2 to the Regulations

    ·Reg 1.20J for the purpose of cl 820.221 of Schedule 2 to the Regulations

    David Barker
    Member