CHEN (Migration)

[2020] AATA 5470

CHEN (Migration) [2020] AATA 5470 (3 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs CATHY CHEN

VISA APPLICANTS:  Mr LONGCAI HUANG
Miss YIYING HUANG

CASE NUMBER:  1800564

DIBP REFERENCE(S):  BCC2016/2225000

MEMBER:Kira Raif

DATE:3 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 03 September 2020 at 9:23pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – ‘compelling circumstances’ – review applicant’s and her daughter’s health condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cl 309.222

CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

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 Immigration on 30 October 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) is a national of China, born in November 1962. He applied for the visa on 30 June 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.222 because the sponsorship has not been approved. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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.

4. The review applicant appeared before the Tribunal on 3 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter. The review 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.

   Relevant law

5. At the time the application was made, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’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).

7. At the time of decision, this sponsorship must have been approved and still be in force. Approval of sponsorship is subject to limitations contained, relevantly, in r.1.20J of the Regulations. Regulation 1.20J of the Regulations 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 domestic 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 5 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).

8. 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.

   Are the sponsorship requirements met?

9. The review applicant provided to the Tribunal a copy of the primary decision record. According to it, the sponsor previously sponsored two partners. The delegate wrote to the visa applicant seeking his comments. The sponsor provided a statement in which she claimed that her first partner, whom she sponsored in 1995, abandoned her and their child in 2001 and that her child has been dependent on her since that time.

10. The review applicant confirmed in oral evidence that she had previously sponsored two partners. The Tribunal finds that more than one person has been granted the relevant permission on the basis of the review applicant’s sponsorship. The Tribunal is not satisfied the requirements of r. 1.20J(1)(a) are met.  The Tribunal must consider whether the sponsorship should nevertheless be approved in accordance with r. 1.20J(2).

11. On 25 August 2020 the review applicant provided to the Tribunal a number of medical reports relating to herself and her daughter. With respect to the review applicant, the medical evidence shows that she suffers from insulin-dependent diabetes and diabetic retinal problems and requires continuing treatment. With respect to the review applicant’s daughter, the medical certificate refers to her suffering from diabetes. A report dated January 2018 states that she is ‘both physically and mentally unsound currently’.

12. The review applicant’s oral evidence to the Tribunal is that she has been living with diabetes for over 30 years. Her symptoms include numb feet, making walking difficult, and poor vision. She needs regular injections for her poor vision. The review applicant told the Tribunal that her daughter is also diabetic and has severe depression and had several suicide attempts leading to hospitalisation. Neither of them is able to work. The review applicant states that because of these conditions, she needs someone to look after them. The review applicant told the Tribunal that her daughter’s father left her when she was 2 years old and she had been bullied and this had been a traumatic experience for her.

13. The review applicant told the Tribunal that the visa applicant had spent two months in Australia previously and looked after her during this time. He tried to come to Australia again but was prevented by Covid-19. She also visited China a number of times and they may have lived together with a visa applicant for about a year during her visits. The review applicant told the Tribunal that while the visa applicant is overseas, her son looks after them, for example he regularly does grocery shopping and takes her to medical appointments. When her husband arrives in Australia, he can help with driving and doing housework. The review applicant said that the visa applicant did help with these tasks when he was in Australia.

14. The applicant states that her daughter’s father has not been helpful and has not played any role in the child’s life after abandoning the child at the age of two or three. The review applicant submits that his sponsorship should not be counted. However, once the sponsorship has occurred, the nature of the review applicant’s relationship with her former partner is not part of the Tribunal’s consideration.

15. The review applicant told the Tribunal that she cannot stay in China because she cannot obtain medical insurance in China. Also, she cannot leave her daughter in Australia because her daughter needs ongoing supervision. The daughter’s evidence to the Tribunal is that they support each other and rely on each other. The review applicant told the Tribunal that these things affect her physical and mental well-being. The review applicant’s representative submits that the review applicant has been living in Australia for over 30 years and her daughter was born here and it is not practicable for her to relocate to China.

16. The Tribunal has considered the medical evidence and the oral evidence of the review applicant. The Tribunal accepts, having regard to the various medical reports, that the review applicant and her daughter have medical conditions. The Tribunal is prepared to accept the review applicant’s evidence that her daughter’s condition is ‘life-threatening’. The Tribunal accepts the presented medical evidence. The Tribunal also accepts that for a variety of reasons, it would be very difficult, if not impossible, for the sponsor to live in China on a long-term basis.

17. However, the Tribunal is mindful that the review applicant and her daughter have been able to manage their conditions through professional treatment in Australia and with the help of family members. The review applicant’s evidence to the Tribunal is that the visa applicant has spent only about two months in Australia previously when he helped with domestic chores, and the review applicant herself had spent about a year in China during several visits. When the visa applicant and the review applicant do not live together, the review applicant and her daughter appear to be able to deal effectively with the issues that arise from their health conditions. They do not claim that they would be unable to continue to do so in the future, whether or not the visa applicant is granted the visa. The review applicant has not satisfied the Tribunal that her health would deteriorate unless the visa applicant is granted the visa.

18. The Tribunal also accepts that the review applicant’s former spouse has abandoned her and the child and has not played any meaningful role in the life of the review applicant’s daughter.

19. Thus, the Tribunal accepts the entirety of the review applicant’s evidence concerning her and her daughter’s health condition and other circumstances. However, having regard to the particular situation of the review applicant, the Tribunal is not satisfied that the health condition, and the circumstances flowing from it or from the review applicant’s previous divorce, are of such severity as to evoke interest or attention in a powerfully irresistible way or so powerful to necessitate a positive finding. That is, the Tribunal is not satisfied that the review applicant’s and her daughter’s health condition and general circumstances are of such severity as to be compelling.

20. The Tribunal also accepts the review applicant’s evidence that her former husband abandoned her and had not been involved with their child. The Tribunal is mindful that quite a number of years has passed since these events and the review applicant appears to have been able to “move on” with her life. She has formed another relationship. The Tribunal is not satisfied that the nature of the review applicant’s relationship with her former spouse constitutes a compelling circumstance.

21. Overall, the Tribunal accepts the entirety of the evidence before it but is not satisfied that the circumstances, whether taken singularly or cumulatively, constitute compelling circumstances affecting the sponsor.

22. The Tribunal has found that more than one other person had been granted a relevant permission as a spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination. The Tribunal is not satisfied there are compelling circumstances affecting the sponsor. The Tribunal is not satisfied the requirements of r. 1.20J are met. The Tribunal is not satisfied the visa applicant meets cl. 309.222.

    Conclusion

23. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Kira Raif
    Senior Member