Chen (Migration)

[2020] AATA 4197

Chen (Migration) [2020] AATA 4197 (28 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hua Chen

CASE NUMBER:  1814713

HOME AFFAIRS REFERENCE(S):          BCC2017/5010526

MEMBER:Christine Kannis

DATE:28 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 28 July 2020 at 1:21pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – two extended periods as unlawful non-citizen – compelling reasons for not applying criteria – sponsor’s mental health and applicant’s care for Australian citizen children – sponsor’s employment, resilience and family members in Australia – 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

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 (the Act).

2. The applicant applied for the visa on 30 December 2017 on the basis of his relationship with his sponsor, Ms Juan Wu. 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 primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant failed to meet the criteria in cl.820.211(2)(d)(ii). That provision requires the applicant to satisfy Schedule 3 criteria 3001, 3003 and 3004. The delegate found the applicant failed to satisfy criterion 3001 and therefore did not consider criteria 3003 and 3004. 

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review. 

5. The applicant appeared before the Tribunal by telephone on 21 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

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. Departmental records show that the applicant last held a substantive visa on 15 March 2011, being the relevant day. This Partner visa application was lodged on 30 December 2017. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

13. To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 criteria, that being Criteria 3001, 3003 and 3004.

    Compelling reasons

14. 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.

15. 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.

16. The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant’s circumstances as a whole are to be taken into account. At the hearing the Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria. 

17. As discussed with the applicant at the hearing, the focus of the original decision maker was whether there were compelling reasons to waive the Schedule 3 criteria and no formal assessment was undertaken to determine whether the applicant and the sponsor were in a genuine relationship at the time the application was lodged. Accordingly, the Tribunal has also refrained from formally considering this issue.

18. Prior to the hearing the applicant provided documentation which included but was not limited to a joint written submission signed by the applicant and sponsor, written statements from family members and friends, medical reports, joint bank account statements, photos and evidence of cohabitation.

    The applicant’s evidence

19. The delegate referred to the applicant remaining unlawfully in Australia for two extended periods, the first being nearly two years in duration and the second being two years and nine months. When asked to comment on his significant disregard for Australian laws in remaining here unlawfully for extended periods of times, the applicant said his family had been unable to pay for his continued study in Australia when his student visa ceased on 15 March 2011. He also said he was not knowledgeable about visas. The Tribunal pointed out that after his student visa ceased he applied for a protection visa and sought administrative and judicial review of the decisions to refuse that visa.  He said he wanted to stay in Australia and achieve his study dream and if he returned to China he would not achieve the dream.  The applicant conceded that he was aware of his unlawful status during the periods from 15 March 2011 to 27 February 2013 and from 24 March 2015 to 30 December 2017 and offered no reasons other than those stated for not seeking to legalise his visa status.

20. The applicant told the Tribunal that he met the sponsor in July 2016. They married on 26 March 2017 and their son was born on 8 September 2019. The Tribunal asked him the reason he waited until he was married to lodge the Partner visa application. He said when they married he did not know he could apply for a Partner visa. The Tribunal asked him the reason he and the sponsor chose to have a child at a time when his visa status was yet to be determined. He said the child was conceived by accident and the Tribunal accepts this evidence.

21. When asked about the compelling reasons for not applying the Schedule 3 criteria in his case the applicant said he and the sponsor have three children, being the children from the sponsor’s first marriage currently aged 5 and 6 and the child of their relationship currently aged ten months. He said he cares for the children because the sponsor is in full-time employment. She works in quality control in a food processing factory. He currently has no work rights. The applicant said the sponsor cannot look after the children alone because she suffers with severe depression. He said she often has difficulty controlling her emotions and becomes angry or cries.

22. When asked if the sponsor will accompany him if he is required to leave Australia temporarily to apply for an offshore visa the applicant said she will stay in Australia. The Tribunal asked the applicant how he would pay for his living expenses in China. He said he would stay with his family but said he could not rely on them completely. He said he would not work.  The applicant said he cannot leave Australia because the sponsor and the children need him. The Tribunal pointed out that if he is required to depart Australia, it is likely to be on a temporary basis and the available technology would mean he could remain in daily contact with the sponsor and the children.

23. The evidence provided prior to the hearing included written statements from the sponsor’s mother and sister. The sponsor’s mother and sister both referred to the support and care the applicant provides to the sponsor and the children. In response to being asked whether the sponsor’s mother and sister would help the sponsor if he is required to depart Australia the applicant said although they live nearby they currently only help with the children sometimes because they have their own lives.

    The sponsor’s evidence

24. The sponsor told the Tribunal that she suffers from depression. She said the impact of this condition on her ability to function is that she has problems sleeping and finds it difficult to control her emotions. She said she often becomes angry and cries. She said her general practitioner has prescribed antidepressant medication (Efexor) which helps her sleep and helps her to calm down.

25. The evidence before the Tribunal included a medical report dated 8 July 2020 from the sponsor’s general practitioner, Dr Aung Aung in which he said the sponsor suffered post-natal depression and was currently seeing a psychologist.  A report dated 6 July 2020 from registered psychologist Ms Archana Bhat was provided. Ms Bhat stated that the sponsor was having counselling sessions and administration of tests by telephone. Her first session was 18 April 2020. Ms Bhat said the sponsor was administered the DASS 21 and her score indicated severe levels of depression and stress and extremely severe levels of anxiety. Her Edinborough Post Natal Depression Scale (EPDS) score was 20 indicating the likelihood of depression to be high. Ms Bhat said the sponsor reported having occasional suicidal thoughts (when frustrated) however confirmed that she was aware that she had to be around for her children and parents. She confirmed no plans or continued rumination in this regard. Ms Bhat stated that the sponsor presented as resilient during her sessions. 

26. The sponsor told the Tribunal that she has had three sessions with Ms Bhat, the first being on 18 April 2020, one in May and most recently in June. The sponsor told the Tribunal that she is employed on a full-time basis. She is in receipt of family tax benefit. She said the applicant’s father has also provided financial support to them.  She does not receive child support from the father of her two older children, he has not had contact with them for four years and she does not know his current whereabouts.

27. When asked if she will accompany the applicant if he is required to temporarily depart Australia she said she will stay in Australia. She said she will not be able to look after the children properly without the applicant’s help. When asked to explain this statement she said she suffers from depression and she needs the applicant in Australia for her psychological well-being. She said her moods fluctuate and she needs someone to watch over her. In response to the Tribunal asking whether her mother and sister would help her with the children she said it would be impossible for them to do so because they have their own lives. The sponsor said although she takes her medication she needs the applicant to be happy.

    Overall assessment

28. The Tribunal has considered the factors relevant to the case including those raised by the applicant and the sponsor.

29. The applicant’s primary compelling reason for waiving the requirement to meet the Schedule 3 criteria in this case was his contention that the sponsor and the three children are reliant on his care. He said the sponsor suffers from depression and he cannot leave her alone to look after the three children.

30. In relation to the sponsor’s mental health the psychological report referred to an assessment of the sponsor using the DASS-21 tool. The Tribunal noted the tool is a self-report instrument and the evidence was that the sponsor has only spoken to Ms Bhat on three occasions. Ms Bhat’s report also referred to the sponsor’s EPDS score. The Tribunal notes that the EPDS is also based on self-report. Written statements from the sponsor’s mother and sister also referred to the sponsor suffering from depression.

31. The Tribunal accepts that the sponsor has spoken to a registered psychologist on three occasions and that she is taking antidepressant medication. The Tribunal places weight on Ms Bhat’s statement that the sponsor presented as resilient. The Tribunal also places weight on the sponsor’s ability to participate in and maintain full-time employment.  Despite the DASS-21 and EPDS results (based on self-report) the Tribunal is satisfied that the sponsor’s employment and resilience indicate that her psychological condition is not so debilitating so as to cause her to be unable to function on a day-to-day basis. The Tribunal considers the sponsor’s mother and sister, who according to the applicant’s evidence live nearby, may provide her with emotional support. The Tribunal accepts that the applicant plays a positive role in the sponsor’s life, including from a psychological health perspective.  The Tribunal finds that the applicant can continue to provide the sponsor with emotional and psychological support whilst offshore lodging a Partner visa application through a wide range of technologies.  The Tribunal accepts that the sponsor would prefer the applicant to provide his support in-person and understands it may be a challenge for her.  The Tribunal however does not consider the sponsor’s mental health and the in-person support the applicant provides her is a compelling reason for it to waive the Schedule 3 criteria.

32. The sponsor told the Tribunal she will not be able to look after the children alone if the applicant temporarily departs Australia. The Tribunal is of the view that some degree of hardship is to be expected when applying for an offshore Partner visa application.  The Tribunal accepts that the sponsor will be taking on greater responsibility for the children if the applicant is compelled to return offshore temporarily to lodge a Partner visa application however notes that she has previously managed the care and support of two children whilst a single parent.  On the evidence before the Tribunal, the Tribunal is not satisfied that the sponsor will be unable to repeat this whilst the applicant lodges a Partner visa from offshore. In addition, the Tribunal accepts the applicant’s evidence that the sponsor’s mother and sister currently provide help sometimes and considers it likely that they will provide some assistance.

33. The sponsor said she might suffer financial hardship if the applicant is required to temporarily depart Australia. The Tribunal considers it is likely she will be able to access additional government assistance. The Tribunal notes that she is currently in receipt of family tax benefit and that the applicant’s father previously provided financial assistance. The Tribunal accepts that making an offshore Partner visa application involves a degree of financial sacrifice for both parties and may necessitate the applicant and sponsor having to adjust their finances.  The Tribunal accepts that an offshore Partner visa application does represent a financial burden for the sponsor and the applicant.  This however is not an unusual situation for many people applying for a range of visas.  The Tribunal does not view the financial disadvantages or loss (if any) arising from the applicant’s temporary absence from Australia as a compelling reason for not applying the Schedule 3 criteria.

34. The relevant Departmental policy requires consideration in this case because of the applicant's migration history. The policy stresses that; …the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:

    oFail to comply with their visa conditions or

    oDeliberately manipulate their circumstances to give rise to compelling reasons or

    oCan leave Australia for a partner visa outside Australia.

35. Further relevant policy states that the purpose of the Schedule 3 criteria are three-fold; first to encourage persons to apply for a further substantive visa before their existing visa ceases to have effect, second to discourage persons from overstaying their visas and third to prevent non-citizens from benefiting by remaining in Australia unlawfully.

36. The delegate noted that the applicant remained unlawfully in Australia from 15 March 2011 to 27 February 2013 and from 24 March 2015 until 30 December 2017. The Tribunal notes the applicant was therefore an unlawful non-citizen for two extended periods before lodging the Partner visa application. The applicant told the Tribunal that his family could not continue to pay for his study in Australia and he did not want to leave Australia without fulfilling his study dream. He said he did not know he could apply for a Partner visa when he married the sponsor. The Tribunal does not accept this evidence given his history of applying for student visas, a protection visa and bridging visas. The Tribunal has concerns about the applicant’s conduct in regard to the Partner visa and considered whether the timing of the application was an attempt to manipulate the migratory outcome by waiting until after the marriage to establish a likely compelling reason to meet the visa requirements. However, on balance the Tribunal accepts the parties’ evidence that the only motivation for marriage was mutual love and that the timing of the application was not an attempt to manipulate visa criterion.

37. Notwithstanding, the applicant did not seek to legalise his visa status and the Tribunal considers the periods of unlawfulness were not insignificant. The Tribunal places some weight on the applicant maintaining an ongoing presence in Australia without having a lawful right to do so as there does not appear to be any valid reason why his visa status was not dealt with. The Tribunal does not view the lack of financial support from his family and the desire to study as compelling reasons for not applying the Schedule 3 criteria.

38. Although not raised by the parties the Tribunal has considered whether the fact that the parties have been married for three years constitutes a compelling circumstance. The Tribunal is mindful that the Explanatory Statement to the 1996 Schedule 3 amendments, in providing examples of compelling reasons, states: where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).

1. The criteria which must be met for a Subclass 820 visa include that the applicant is the spouse or de facto partner of the sponsoring partner and this, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. Accordingly, simply the fact that the parties are in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria as it is already a criteria which must be satisfied in order to meet the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has not considered the genuineness of the parties’ relationship however in the circumstances of this case the Tribunal does not consider that there are any particular aspects of the relationship between the applicant and the sponsor, even if a genuine relationship was established, which constitute a compelling reason for waiver.

2. Although not raised by the parties the Tribunal has considered whether the three Australian citizen children in this matter represent a compelling reason for it to waive the Schedule 3 criteria. The Tribunal is mindful that the Explanatory Statement to the 1996 Schedule 3 amendments, in providing examples of compelling reasons, states that the existence of children may constitute a compelling reason for the exercise of the waiver. The parties did not contend that the applicant’s departure will have a detrimental impact on the children however the Tribunal accepts that he plays a positive role in the children’s lives insofar as he provides practical support. In the pre-hearing joint submission the applicant said he is a role model for the two older children because they have no contact with their biological father. The Tribunal however notes that the children are young and any physical separation between the applicant and the children is likely to be temporary.  The applicant can continue to provide emotional support to the children and the sponsor whilst his offshore Partner visa is being assessed. He can remain in contact with the children and the sponsor via a wide range of modes of communication.  The Tribunal does not consider a temporary absence in these circumstances and its impact upon the three Australian citizen children are compelling reasons for the Tribunal to waive the Schedule 3 criteria. 

   Conclusion

3. The Tribunal has balanced the applicant’s migration history with his and the sponsor’s current circumstances. The Tribunal is mindful that the applicant has found himself in this position due to his breach of Australia’s immigration law however considers that it cannot make a decision predominantly based on the applicant’s migration history.  In assessing whether there are compelling reasons for waiving the Schedule 3 criteria, the Tribunal is required to assess the evidence as a whole.

4. 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).

5. There is no evidence or suggestion the alternative criteria in cl.820.211 (2A), (2B), (5)-(9) apply. 

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

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Christine Kannis
   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.