Chen (Migration)

Chen (Migration) [2018] AATA 2262 (7 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lin Qi Chen
CASE NUMBER:  1608006
DIBP REFERENCE(S):  BCC2015/3330450
MEMBER:Justin Owen
DATE:7 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 07 May 2018 at 2:34pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Compelling reasons to waive Schedule 3 criteria – Sponsor’s medical condition – Medical evidence – Health plan – Support to stepchildren – Financial hardship – Employment opportunities – Length of absence from home country – Family ties in home country – 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 of a delegate of the Minister for Immigration on 16 May 2016 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 12 November 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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). The delegate found that the applicant was not the holder of a substantive visa at the time he lodged the partner visa application. The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the application, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria.
The applicant appeared before the Tribunal on 27 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Yumei Zhao and witnesses Niki Zhao and Yonghui Pan. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them.
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.
The applicant provided to the Tribunal a copy of the Departmental decision record. It indicates that the applicant entered Australia on 8 July 1997 on a subclass 456 Business (Short Stay) visa that ceased on 8 August 1997. The applicant then lodged an application for a [permanent] visa on 21 July 1997, and this application was refused on 15 January 1998. The applicant lodged an application for review of this decision with the [tribunal] on 4 February 1998. The [tribunal] affirmed the decision to refuse the visa on 24 November 1998. The applicant was found not to meet the criteria for a Public Interest Guidelines Assessment on 9 December 1998. The applicant then resided unlawfully in Australia for almost seventeen years from 29 December 1998 to 11 November 2015. The applicant lodged a subsequent application for a [permanent] visa on 22 February 2000. This application was found to be invalid on 25 February 2000. The applicant holds a Bridging visa C in association with this Partner visa application.
There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that she entered Australia unlawfully on or after 1 September 1994.
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 Tribunal finds that the applicant last held a substantive visa on 8 August 1997 when his subclass 456 Business (Short Stay) visa ceased. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.
As the Partner visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.
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.
At its hearing on 27 April 2018 the Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria.
The applicant stated to the Tribunal that he could not leave Australia due to his wife the sponsor and her [mental illness]. He spoke in some detail about how and he and the sponsor met in June 2013, and how their relationship developed. The applicant said that they lived together as a couple from November 2013 and married on 19 February 2014.
The applicant told the Tribunal that the sponsor had told him that she had developed [the mental illness] because of work issues. He said in oral evidence that she had been seeing the doctor every week and was taking medicine for her condition every day. The Tribunal enquired of the witness Ms Niki Zhou as to how long her mother the sponsor had been [ill]. She said that it was for as long as she could remember and she knew the sponsor had been on medication when she was in Primary school and now she was 24 years-old. Her younger sister Monica Zhou wrote that her mother the sponsor had suffered [mental illnesses].
The claimed [mental illness] of the sponsor was asserted by the applicant as a compelling reason for the Tribunal to waive the Schedule 3 criteria. He said that he was looking after the sponsor every day. The sponsor referred to her condition as ‘very serious [mental condition]’ and stated she had been suffering from it for ‘ten to twenty years’.
The Tribunal asked the applicant and the sponsor what treatment the sponsor was undergoing. The applicant replied the sponsor was seeing a psychologist but he didn’t know the psychologist’s name. He said that his wife told him but he couldn’t remember beyond it being a man and a Sri Lankan name. The Tribunal asked how often she was seeking treatment and what evidence was there to present to the Tribunal. The applicant said that he drove her to the psychologist once or twice when her [mental illness] was bad. The applicant claimed to the Tribunal that the sponsor was afraid of seeing the doctor and sometimes he would drive her to the medical professionals but she wouldn’t go in to the appointment. He said that the sponsor’s most recent appointment with the psychologist was two weeks ago after he received the invitation to attend the Tribunal’s hearing. The Tribunal asked the sponsor how often she had visited the psychologist. She responded that she had been about three times in the last four or five years.
The applicant said that sometimes the sponsor was fine when she visited the psychologist but was upset when she came out. The Tribunal asked the applicant what specific treatment his wife the sponsor was undertaking. He said she was having ‘mental adjustments’; and her doctor had prescribed a pharmaceutical. The applicant stated that the sponsor’s doctor had told her to take these pharmaceuticals and to come back and see them if they failed to work effectively. The sponsor informed the Tribunal hearing that she was taking [named pharmaceutical].
It was noted by the Tribunal that it is claimed that the sponsor has suffered from [mental illness] for some years whilst she did not meet the applicant until 2013. The Tribunal asked the applicant if he knew how the sponsor dealt with [the mental illness] before she met him. He responded that the sponsor would lie in bed for long periods of time, neither sleeping nor eating. The Tribunal asked if she was receiving treatment at this time. The applicant said the sponsor had told him that she would occasionally see a doctor. The sponsor in oral evidence said that she had been seeing a psychologist for seven years.
The Tribunal has carefully considered the evidence before it concerning the sponsor’s claimed [mental illness] and whether that represents a compelling reason for it to waive the Schedule 3 criteria.
The Tribunal has noted the correspondence from the sponsor’s GP [Dr A] of [Medical Clinic 1] (T1, Folio. 160) who writes simply the applicant ‘suffers from severe [mental illness] that she has had for a long time and is on treatment.’ The correspondence does not refer to any specific treatment the applicant is undertaking or has been undertaking over the significant period of time the sponsor claims she has suffered ‘severe [mental illness]’.
The Tribunal is aware of the correspondence from GP [Dr B] of [Medical Clinic 1] of 8 February 2016 (D1, Folio.49) that states the sponsor has been attending the Clinic to consult her and her colleague about symptoms of [a mental illness] since 2013. [Dr B] writes that the sponsor describes the applicant as ‘a tremendous support for her through an episode of severe [mental illness] as her carer. Mr Lin Qi Chen’s (the applicant) carer duties during this time have been assisting Ms Yu Mei Zhao (the sponsor) with activities of daily living.’ The Tribunal notes that this assertion of [Dr B] appears to be based on the commentary of the sponsor to her GP rather than an independent specialist medical assessment of her claims concerning [a mental illness].
The Tribunal does take account of [Dr B’s] subsequent commentary that the applicant’s ‘[mental illness] is a chronic condition which follows a relapsing, remitting course and she is likely to require conditioned support in the future.’ The Tribunal notes however the paucity of evidence before it concerning the sponsor’s treatment for [mental illness] over not just the period since she meet the applicant in 2013, but the last ‘ten to twenty years’ she claims to have suffered from [a mental illness]. The Tribunal furthermore notes that both pieces of medical correspondence that have been submitted were after receiving the Schedule 3 Natural Justice correspondence from the delegate in 2016 and after receiving the Tribunal’s invitation to attend the hearing on 11 April 2018. The Tribunal is of the opinion that the medical evidence that was submitted appears to have been done so with the intention of strengthening the applicant’s claim that the sponsor’s depression is a compelling reason to waive the Schedule 3 criteria rather than as evidence of the sponsor’s long-term and ongoing battle with [mental illness].
The Tribunal notes the rambling claims by the sponsor and Ms Niki Zhou in response to the Tribunal’s questioning concerning the existence of a Mental Health Plan for the sponsor. The sponsor and Ms Zhou said that they believed a Mental Health Plan was in place. No corroborative evidence however was presented at the Tribunal hearing. After the hearing however on 1 May 2018 the Tribunal received correspondence from the applicant’s representative stating claims ‘a mental health plan is in place…and it would be sent to you as soon as his wife (the sponsor) receives it.’ The submitted correspondence included a letter from the applicant’s GP [Dr A] dated 30 April 2018 stating that he had examined the sponsor and ‘she is unwell and is getting ongoing help as her health needs dictate. A mental health treatment plan is in place for her.’
Photographs of a GP Mental Health Treatment Plan in the name of the applicant were provided. The plan is dated 30 April 2018 but unsigned by both the applicant and the treating GP. The provisional diagnosis by the GP is [mental illness] with a mental state examination of 26/30. (T1, Folio.165-168).
The Tribunal has reviewed this evidence submitted by the applicant carefully. The Tribunal notes that the applicant has attended her GP to obtain a Mental Health Plan on 30 April 2018 – three days after the Tribunal’s hearing and where the Tribunal asked specific questions concerning the existence of a Mental Health Plan. The unsigned Plan is dated this same day. There is no evidence before the Tribunal of any earlier Plan. The Tribunal is of the opinion the Mental Health Plan has been prepared after the Tribunal’s hearing and questioning and obtained for the purpose of adding strength to the applicant’s claim that the sponsor’s state of mind is a compelling reason for a waiver of the Schedule 3 criteria as opposed to a significant and ongoing mental health condition that requires specific and ongoing treatment. In terms of the claim that the sponsor’s long-term [mental illness] represents a compelling reason for the Tribunal to exercise the waiver, the Tribunal gives the Plan little weight.
Given the paucity of independent, specialist professional medical opinion concerning the claimed [mental illness] of the sponsor, the role of the applicant in helping her address this condition and her treatment for this claimed condition both in the past and currently, the Tribunal is not compelled to waive the Schedule 3 requirements for a Partner visa for these reasons. The Tribunal furthermore notes there is little corroborative evidence beyond the correspondence from the GPs that refers to the role of the applicant in assisting the sponsor address her [mental illness]. There is no mention of the role of the applicant in the sponsor’s new and unsigned Mental Health Plan dated 30 April 2018. The Tribunal notes that there is a wide range of medical, government and community support is available to the sponsor to assist her psychologically and emotionally address her claimed [mental illness] whilst the applicant is offshore if this is necessary. The Tribunal notes that he has the support of her family including a 23-year old daughter who lives with her. She can avail himself of a wide number of forms of communication to be in contact with the applicant at any time when she sees fit. The Tribunal is not satisfied that the claims of the sponsor’s [mental illness] and the support of the applicant represent a compelling reason to waive the Schedule 3 criteria.
The Tribunal furthermore is not convinced that emotional support can only be provided when the couple reside under the one roof. There is no reason why the same level of support could not have been provided if the applicant was to live and reapply for a Partner Visa outside Australia. That is, the Tribunal is not satisfied that the level of emotional support would be any different if the waiver is not applied. It is not unusual for couples to live separately for a period of time and that should not preclude the provision of emotional support, if this relationship was genuine. The Tribunal therefore does not consider these circumstances amount to compelling reasons justifying a waiver of the Schedule 3 criteria.
The Tribunal notes that the stepdaughters of the applicant, Ms Monica and Ms Niki Zhou have asserted the applicant provides them with strong emotional support and has helped them become a family. The Tribunal similarly considers that the applicant can continue to provide them with support whilst offshore temporarily. The Tribunal does not consider this a compelling reason to exercise the waiver.
The Tribunal asked the applicant what specific support he provided the applicant in addressing her [mental illness]. He said he comforted her in every respect and relieved pressure from her. He stated in oral evidence that with her condition the sponsor couldn’t handle stress and he couldn’t tell her bad news for fear of her having a relapse. He said he would invite his friends over to their home and walked their puppy with the sponsor. The Tribunal found the applicant’s evidence concerning the assistance he provided the sponsor both physically and emotionally very general, vague and unspecific. The Tribunal noted that the applicant’s friend Yonghui Pan told the Tribunal that the sponsor’s [mental illness] had improved because of the presence of the applicant in Australia. She said she had seen a marked improvement in the sponsor and he had played a huge role in helping the sponsor address her mental health issues. The sponsor she asserted was now a totally improved and different person. Similarly, the sponsor’s older daughter Niki Zhao spoke warmly about the applicant and stated that he had substantially changed the sponsor’s life for the better The Tribunal has considered these submissions but, on the totality of the evidence before it, does not consider this claimed assistance of the applicant to the sponsor is a compelling reason for it to exercise the waiver.
[Information deleted]
The applicant and sponsor have both claimed they are continuing to try – albeit unsuccessfully – for the sponsor to fall [pregnant] so they can have a child. They have claimed this as a compelling reason to exercise the waiver. The Tribunal is again mindful that if this relationship is genuine, the applicant will be able to apply for a Partner visa offshore and any period of separation is likely to be temporary. The Tribunal does not consider that the couple’s desire to have children to be a compelling reason to exercise the waiver. It is common to many relationships. The choice remains open for the applicant and sponsor to continue to attempt to conceive children either offshore whilst the Partner visa application is processed or in Australia in the future. Whilst acknowledging the sponsor’s arguments as to why departing offshore with the applicant would be problematic, the fact remains is that the sponsor does retain the option to travel offshore and remain physically with the applicant if they wished to continue trying to conceive a child. In the circumstances before the Tribunal, the Tribunal does not consider that the couple’s plans to have children represent compelling reasons for the exercise of the waiver.

Financial hardship was another reason raised as compelling by the applicant. He stated he had been unable to purchase property due to his immigration status and the sponsor’s income was too little for a loan. He stated that as a result he had purchased a property for his stepdaughter in her name. He said that if he leaves Australia then the property will have to be sold and the sponsor and her daughter will be left without a home. The sponsor’s daughter Niki Zhao confirmed that the applicant currently pays the mortgage. The Tribunal enquired of the applicant’s profession. He said he was a plasterer and had worked in the profession for twenty years.
The Tribunal acknowledges the extra financial challenges the applicant travelling off-shore and lodging an application represents to the parties but it does not consider these to be compelling reasons justifying a waiver. It is reasonable and not unusual to expect some degree of financial sacrifice and changed spending habits in the lodgement of a Partner visa offshore. The Tribunal notes that the sponsor financially supported himself for some years before she became involved in a relationship with the applicant. The Tribunal notes that the sponsor’s younger 23-year old daughter resides with the sponsor and applicant and works alongside the sponsor at a nursery. The Tribunal does not consider any changed household income and its temporary impact upon the sponsor whilst the applicant is offshore applying for a Partner visa represents a compelling reason for the exercise of the waiver.
The Tribunal furthermore notes that the applicant himself has a solid employment history working two decades as a plasterer. The Tribunal is not convinced that the applicant is unable to seek employment in the People’s Republic of China. There is nothing before the Tribunal to suggest that she suffers from any impediment that would preclude him from seeking gainful employment offshore whilst his Partner visa application is processed. The Tribunal is of the opinion that both the applicant and sponsor can continue to work whilst the applicant’s Partner visa is processed and they can choose, if they so desire, to provide each other with financial support if necessary. The Tribunal acknowledges the extra costs and sacrifices the lodgement of an offshore Partner visa application represents, but it is not convinced that these circumstances represent a compelling reason to waive the Schedule 3 criteria.
The applicant appreciates the argument that the applicant is making the mortgage payments on the home he, the sponsor and the sponsor’s daughter are currently living in. The Tribunal notes that the applicant has admitted he purchased this property in the name of his step-daughter as he could not do so due to his migration status. The Tribunal nevertheless has considered the financial hardship this could place on the sponsor and her daughter and whether this could be considered as compelling. The Tribunal is of the opinion that the option remains for the sponsor and her daughter to lease the property whilst the applicant is offshore and reside in a property that is more affordable. The option remains for the applicant to provide financial support and make payments towards the mortgage whilst he is offshore after finding employment. The Tribunal notes that the property is in the name of the older daughter of the sponsor, Niki Zhou. She also has the option of making a financial contribution to the mortgage if she sees fit. The Tribunal does not consider the financial impact on the mortgage if the applicant has to relocate to the People’s Republic of China to lodge an offshore Partner visa represents a compelling reason for it to waive the Schedule 3 criteria.
Fear of returning to the People’s Republic of China was raised by the applicant as a further compelling reason for a waiver of the Schedule 3 criteria. He said there was no security in the People’s Republic of China. [Information deleted] The Tribunal asked if he had any new evidence he wished to present to the Tribunal concerning these allegations. He said he did not. The Tribunal has considered his claims. Given the lack of any evidence before the Tribunal to substantiate any of the applicant’s claims, the Tribunal is not satisfied that these alleged dangers represent a compelling reason to waive the Schedule 3 criteria.
The applicant asserted the length of his stay in Australia was a compelling reason for the waiver. He said that he worked for an Australian company and was a taxpayer. He said he loved Australia. He never caused the Government trouble and had by now been away from the People’s Republic of China for more than two decades. He said he needed a chance to remain in Australia. The Tribunal is prepared to accept that the applicant has been a good employee. The Tribunal asked the applicant why, noting he was unlawful in Australia for almost seventeen years, he did not try and regularise his migration status. The applicant stated that in the past he had two separate girlfriends and tried to regularise his visa status but failed to do so. The applicant admitted to the Tribunal that he never actually did lodge any application but was only thinking about it. The Tribunal, whilst acknowledging his record of employment, is not of the opinion that the applicant’s long-term status in Australia as an unlawful non-citizen represents a compelling reason for it to waive the Schedule 3 criteria.
The Tribunal asked the applicant if he thought the sponsor would travel with him offshore if he was compelled to return to the People’s Republic of China and lodge a Partner visa application. He responded that he had been away from China for a long time and didn’t know how he would lead his life there today. The Tribunal recognises the lengthy period of time which has elapsed since the applicant was last in the People’s Republic of China. The Tribunal notes that this period however has occurred because the applicant through his actions decided to remain an unlawful non-citizen in Australia for about seventeen years. The Tribunal considers that the applicant has proven himself to be able to hold down in Australia regular employment and finance the purchase of a dwelling. The Tribunal does not see any reason why he would not be able to utilise those same abilities leading his life in the People’s Republic of China during a temporary offshore relocation for the lodgement of his Partner visa application. The Tribunal does not consider this length of time away and the supposed difficulties in leading his life today in the PRC amounts to a compelling reason for it to exercise the waiver.
The applicant furthermore claimed in oral evidence that he had no relatives in the People’s Republic of China anymore. The Tribunal notes however that in his application for the Partner visa the applicant claims his four siblings – two brothers and two sisters – each live in the People’s Republic of China (D1, Folio 14). At the time of decision these siblings are aged between 57 and 61 years of age and all are listed as married, suggesting the number of the applicant’s family members residing in the People’s Republic of China may be even greater. The Tribunal is of the opinion that in relation to this specific claim of having no relatives in the PRC, the applicant has been economical with the truth in his oral evidence. The Tribunal subsequently gives his claim that he has no relatives in the PRC no positive weight. The Tribunal is of the opinion that the applicant is not necessarily ‘alone’ in relation to family in the People’s Republic of China. The Tribunal furthermore is of the opinion that the option remains open for the sponsor to travel to the PRC to spend time with the applicant if they so wish. The Tribunal notes that the sponsor did travel to Guangzhou in the PRC in December 2015-January 2016 whilst married and cohabitating with the applicant. That same option to travel to the PRC remains with the sponsor. The processing of the Partner visa offshore however does not require the sponsor to relocate during this period. These are matters for the sponsor and applicant to ascertain. On the evidence before it the Tribunal does not consider these amount to compelling reasons to waive the Schedule 3 criteria.
The Tribunal accepts the sponsor may find moving offshore temporarily challenging and prefer to remain in Australia. Nevertheless there is no requirement that the sponsor and her children relocate to the People’s Republic of China as part of the offshore processing of the applicant’s Partner visa. The Tribunal does not consider the challenges the sponsor might face in relocating to the People’s Republic of China in relation to family support and physical presence represents a compelling reason to waive Schedule 3 for the applicant’s Partner visa application.
The genuine and continuing nature of the spousal relationship between the applicant and sponsor was articulated by all the witnesses that appeared before the hearing and in written submissions in support of the application including by the sponsor’s youngest daughter Monica Zhou (T1, Folio.158-159). The genuine nature of their relationship was also expressed in the strongest terms by the applicant and sponsor in oral evidence and in their written submissions to the Tribunal. The applicant pointed out in his written submission that he and the sponsor have been in a relationship for nearly five years and were married over four years ago. They have lived as a couple for almost four and a half years. (T1, Folio.161) The applicant submitted as a compelling reason to the Tribunal the relationship he was in with the sponsor. He said he loved his wife and could not leave her. The Tribunal has reviewed a wide range of materials the applicant provided the delegate and the Tribunal concerning her relationship with the sponsor. Dating back to 2015 they include photographs of the applicant and sponsor together and with family and friends; statements from the applicant and sponsor; numerous statutory declarations and letters from family and friends attesting to the genuine and continuing nature of the relationship; a Victorian marriage certificate; [information deleted]; joint bank statements; tax returns; superannuation letters where the sponsor nominated the applicant as a beneficiary; and utilities bills. The Tribunal accepts on the evidence that the applicant and sponsor are known to each other and there has been a relationship between the parties during the last three plus years. The Tribunal accepts that the parties have provided each other with support during their relationship and continue to do so. The Tribunal notes that a criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor. The definition of both a spousal relationship relevantly requires that the relationship be “genuine and continuing”. Accordingly, the existence of a genuine and continuing spousal relationship is itself a criterion for the grant of a partner visa. A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa. A genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria. The Tribunal has considered this evidence and the circumstances of the parties’ claimed relationship and is of the opinion that there is nothing in the individual circumstances of their particular case that should compel the Tribunal to not apply the Schedule 3 criteria. The Tribunal is not satisfied, on the evidence before it concerning the relationship of the sponsor and applicant, that there are compelling reasons not to apply the Schedule 3.
The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, 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).
There is no evidence or suggestion the alternative criteria in cl.820.211 (2A), (2B), (5)-(9) apply.
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.
Justin Owen
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)     the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b)on 31 August 1994, the applicant was either:
(i)       an illegal entrant; or
(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii)      any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i)       the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii)      the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f)either:
(i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

[2018] AATA 2262

7 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal