Chau (Migration)

[2021] AATA 1500

Chau (Migration) [2021] AATA 1500 (12 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Ngoc Huong Chau

CASE NUMBER:  1903708

HOME AFFAIRS REFERENCE(S):          BCC2016/1366908 CLF2019/27881

MEMBER:Stephen Conwell

DATE:12 March 2021

PLACE OF DECISION:  Melbourne

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

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

Statement made on 12 March 2021 at 6:41pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – strong degree of companionship and emotional support –– long-term genuine relationship – ongoing serious mental health issues –applicant was not the holder of a substantive visa at the time of application – applicant’s departure to Australia can cause severe psychological and mental distress to sponsor– compelling reasons exist – Schedule 3 requirements  waived –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 820.211, Schedule 3

CASES
He v MIBP [2017] FCAFC 206

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

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 4 April 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 (applicant) did not satisfy cl.820.211(2)(d)(ii) because it was considered that there were no compelling reasons to waive the Schedule 3 criteria. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video conference. The Tribunal exercised its discretion to hold the hearing by video conference. The applicant raised no objections as to conducting the hearing in this manner.

5. The applicant participated in the hearing by video conference on 11 March 2021 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. All  parties attended the hearing by video conference.

6. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. Based on the documentary evidence and the oral testimony of the applicant and sponsor the Tribunal set out the following summary of their relationship and of the applicant’s immigration history:

   ·   The sponsor, Mr Thanh Tam Hong  is an Australian citizen, born in  in Vietnam. He arrived in Australia as a refugee with his parents. He was previously in a de facto relationship which ended in 2013. There is a daughter from that relationship who is now 12 years old. His previous partner left the relationship in 2012, taking the daughter with her. The sponsor has not seen his daughter since then.

   ·   The sponsor’s parents are both alive although his father remarried. His mother lives nearby with one of his sisters. He has five siblings but is not close to any of them.

   ·   The applicant is a citizen of Vietnam and is currently 42 year old.  She has three siblings, one of whom lives in New Zealand. Her two other siblings and her father live in Vietnam. Her mother passed away earlier this year.

   ·   The applicant has declared no previous relationships.

   ·   The applicant came to Australia on a Student visa (Subclass 573), arriving on 11 January 2011. Due to her poor academic performance, the applicant’s student visa was cancelled shortly thereafter, on 05 July 2012.

   ·   The applicant remained in Australia unlawfully for almost four years; she concedes that she made no attempt to contact the Department to rectify her illegal status.

   ·   The applicant and the sponsor met for the first time at a Buddhist temple in February 2015. They married in January 2016; on 4 April 2016, the applicant applied for a Partner visa subclass 820/801 with the sponsoring of her spouse.

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

9. 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).

10. 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

11. 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.

12. In this case, the relevant day is the day the applicant last held a substantive visa, being 04 July 2012, the day before her student visa was cancelled on 05 July 2012. On 4 April 2016, the applicant lodged the Partner visa application which is the subject of this review. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

13. 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.

14. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

15. The Department’s Procedures Advice Manual (PAM3) guides decision-makers to consider the circumstances which led to the applicant becoming unlawful and whether the circumstances are beyond the applicant’s control. However the Tribunal is mindful that it is not bound to follow PAM3 guide-lines, rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether there are compelling reasons for not applying the Schedule 3 criteria.

16. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of the statutory provisions, gave two examples of circumstances in which a waiver may be justified. One of these examples being any Australian-citizen children from the relationship. As there are no children from the relationship between the applicant and the sponsor this factor is not relevant to this merits review. The other example proposed is where the applicant and sponsor are already in a long-standing partner relationship which has been in existence for two years or longer.

    The partner relationship is long-standing

17. The Tribunal has regard to the information and evidence on the Departmental and Tribunal  files pertaining to the claimed relationship, including the applicant’s statutory declaration  dated 4 March 2021 and the statutory declaration of the sponsor dated 9 March 2021. The former document in particular sets out the applicant’s immigration history and the sponsor’s personal issues involving severe depression and drug abuse. It is evident that the sponsor is heavily reliant upon the applicant for physical care, emotional support, as well as financial support reliance since the sponsor has been unemployed for the past few years. The applicant has been employed full-time as a farm-worker since 2016. Whilst the sponsor receives government financial assistance, the applicant has been the main bread-winner in recent years.

18. From the documentary evidence and their oral testimony the Tribunal is satisfied that the applicant and the sponsor are in a long-standing relationship and they are committed to a shared life together to the exclusion of all others. The Tribunal also notes the information and evidence that has been submitted to the Tribunal, such as photographs of the applicant and the sponsor together, including some with others; some evidence of joint liabilities (such as an electricity bill from March 2020 and a telephone bill for December 2020 – January 2021); joint bank statements from 2019-2020; the sponsor’s recent Centrelink records and the applicant’s recent income tax returns. The Tribunal notes that it has had the benefit of much more evidence in support of the parties’ claimed genuine partner relationship than what was before the delegate.

19. At the hearing, the Tribunal questioned the applicant and the sponsor about their relationship. The parties gave consistent and credible testimony about these various matters. The applicant told the Tribunal that, at the beginning, she suspected that the sponsor had some mental or emotional fragility, however she found him to be sincere and their relationship developed. The Tribunal found both parties to be credible and gives weight to their oral evidence. 

20. From all the evidence before it, the Tribunal is satisfied that the applicant and sponsor are in a long-standing, committed partner relationship which has been in existence for five years. The Tribunal considers that the length of the parties’ partner relationship is a compelling reason to waive the Schedule 3 criteria.

    The sponsor’s mental health issues

21. The representative’s written submission of  9 March 2021 argues that, in the circumstances of this case, there are compelling reasons why the Schedule 3 criteria should not apply. It was submitted that the sponsor has ongoing serious mental health issues which are exacerbated by a history of drug abuse.

22. A report dated 22 February 2021 from the sponsor’s psychiatrist, Dr. Thomas Luong, states that the sponsor has been diagnosed as suffering from psychotic depression. The sponsor first consulted Dr. Luong in June 2019 and has continued to consult with him at regular intervals. Dr. Luong observes that the applicant always accompanies the sponsor for his consultations.

23. The report notes that the sponsor’s mental state deteriorated after his de facto partner left him, taking their daughter with her. The sponsor’s life began to unravel, as he fell into heroin and alcohol addiction. Dr. Luong opines that since meeting the applicant, the sponsor’s mental health has improved. In his professional opinion, the applicant’s care, financial and emotional support and physical presence are crucial to the sponsor’s wellbeing:

    She is pivotal in stabilising his health (physical and mental). He became motivated in caring for his health. He stayed clean[sic] of heroin addiction. .. Mr. Hong’s health is very vulnerable to deteriorate in the context of major life events. He decompensated and subsequently became self-destructive after the [de facto] relationship break up in 2013. Over the last 6 years, his mental health has gained markedly from his relationship with Ms. Chau. Likewise, he will decompensate again should he be separated from Ms. Chau.

24. The representative’s submission notes that the sponsor was charged in 2019 for driving under the influence of drugs. He was charged and was issued a Community Correction Order which remain in place to the end of this year. Consequently the sponsor is unable to depart Australia this year should the applicant be required to depart Australia.

25. Mr Minh Tran, of Fairfield Community Corrections Office provided a letter dated 2 March 2021 in support of the applicant’s review application. In Mr Tran’s opinion the applicant plays a crucial role in assisting the sponsor with his long-term rehabilitation and reintegration process.

26. It was also submitted that the sponsor’s ongoing mental health problems and dependence on the applicant’s continuous care, emotional support and physical presence for his well-being, are compelling reasons as to why the applicant should remain in Australia.

27. In the representative’s submission, the sponsor would have suffered significant emotional hardship if the applicant had had to depart Australia in order to apply for the Partner visa from overseas as the sponsor’s health and emotional well-being were highly dependent upon the applicant’s ongoing care and support. The submission explained that If the applicant were to be forcibly removed from Australia in the event her applicant is refused, their separation would be significantly adverse not only to his mental health and overall wellbeing, but also retard his rehabilitation and re-integration process.

28. At the hearing, the applicant and the sponsor gave credible evidence about the various challenges the sponsor has faced due to the breakdown of his previous de factor relationship and his separation from his daughter, and his ensuing substance abuse and subsequent mental health issues.

29. The sponsor gave credible oral evidence that the applicant’s presence in Australia has helped him greatly; he fears he would be unable to cope physically or emotionally should she be required to depart Australia. He was concerned that he would become suicidal in such circumstances. The Tribunal notes that the couple live by themselves, although they visit his mother and sister most weeks. They clearly rely upon each other, with the sponsor appearing to be completely reliant upon the care and support of the applicant.

30. The sponsor told the Tribunal that the couple have not dared to consider the prospect of the applicant being unsuccessful with her review. They could not afford for both of them to travel and live in Vietnam whilst the applicant applied for a Partner visa. Furthermore, the sponsor’s Correction Order prohibits him from leaving Australia for the rest of this year. The sponsor was also unlikely to receive the same quality of medical and psychiatric care that he is currently benefitting from.

31. The Tribunal finds the applicant and sponsor to be sincere and credible witnesses. In view of the evidence before it, the Tribunal considers that the sponsor’s mental and emotional issues result in his significant dependence upon the applicant, which the Tribunal finds to be a compelling reason not to apply the Schedule 3 criteria.

    The applicant’s immigration history

32. The primary decision notes that the delegate gave great weight to the applicant’s immigration history, observing that the applicant had been an unlawful non-citizen in Australia for almost four years, during which time she made no attempt to regularise her illegal status. The Tribunal has regard to the Department’s policy and views the applicant’s lengthy period of previous unlawfulness in a grave light. However, in this case, having considered all the evidence before it, and having found the couple to be credible witnesses, the Tribunal gives greater weight to the sponsor’s personal circumstances and to his financial and emotional dependence on the applicant than it does to the applicant’s poor immigration history.  

    CONCLUSION

33. 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). 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

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

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

    Stephen Conwell
    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.