Chi (Migration)

[2019] AATA 6378

Chi (Migration) [2019] AATA 6378 (30 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yu Chi

CASE NUMBER:  1819992

HOME AFFAIRS REFERENCE(S):           BCC2016/3792596

MEMBER:Brendan Darcy

DATE:30 October 2019

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 30 October 2019 at 12:11pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) - Federal Circuit Court remittal – compelling reasons to waive Schedule 3 criteria – visa applicant’s unlawful residence for several years – financial hardship – impact of separation on young Australian citizen family – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.221; Schedule 3

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 Immigration and Border Protection 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 12 November 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 (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. On the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations because he did not meet Schedule 3 criterion 3001 in that he ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate was not satisfied that there were compelling reasons that justified the waiver of the Schedule 3 criteria.

4. The visa applicant, Mrs Yu Chi, applied to the Tribunal to appeal the delegate’s refusal decision on 5 March 2017. She and the sponsor, Mr Hai Xu, appeared before the Tribunal on 1 August 2017. The Tribunal affirmed the decision not to grant the visa on the same day.

5. The visa applicant successfully appealed to the Federal Circuit Court the matter was remitted by consent back to the Tribunal for reconsideration on 4 July 2018.

6. The visa applicant was invited to appear before the Tribunal on 1 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

7. Having reviewed the representative’s submitted legal submission, the Tribunal has decided that it can proceed favourably without having a scheduled hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether there are compelling reasons to waive the Schedule 3 criteria.

10. The Tribunal has considered the documentary evidence that was submitted with the primary application and the additional evidence before the Tribunal.

    Background

11. The visa applicant, a citizen of the People’s Republic of China (China), first arrived in Australia on 23 February 2008 while holding a visitor visa. On 21 April 2008 the applicant was granted a Subclass 571 visa for vocational education. This visa ceased to have effect on 15 March 2010. The visa applicant then became an unlawful non-citizen for a substantial period of time up and until the date of this partner visa application.

12. The visa applicant, it is claimed, met the sponsor in April 2010. They claimed that they were not aware of her unlawful status until the couple planned to travel overseas at the end of 2010. Neither the visa applicant nor the sponsor acted to address her unlawful migration status. At the time, the sponsor did not have permanent migration status until he was granted a Subclass 892 visa on 29 May 2014.

13. The parties then married on 1 August 2014 and their first child, Cheng Matt Xu, was born on 25 September 2014. The sponsor became an Australian citizen on 18 May 2016.  

14. The visa applicant did not apply for this Subclass 820 temporary partner visa until 12 November 2016 with Mr Hai as the sponsor.

15. The vosa applicant and the sponsor claimed to have a second child, Jai Thea Xu, on 27 December 2018 in the State of Victoria. A copy of the birth certificate is on the Tribunal’s file.[1]

    [1] AAT 1819992 Folio 69.

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

16. 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).

17. 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

18. 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.

19. The visa applicant’s movement records verify that in this case her last substantive visa (Class TU Subclass 571 student visa) ceased to have effect was 15 March 2010. The visa applicant was aged 20. This partner visa was not lodged until 12 November 2016. Clearly the application was not made within 28 days of the relevant day.

20. Therefore, the applicant does not satisfy criterion 3001. This is not disputed by the applicant. It is there 

    Criterion 3003

21. Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004 and compelling reasons to waiver Scheduled 3

22. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

23. The dreadful visa history of the review applicant is outlined above. For seven years the visa applicant was an unlawful non-citizen. This is a significant amount of time in which the visa applicant did not make attempts to regularise her migration status or provide any compelling or compassionate reasons for this serious non-compliance or that the circumstances were beyond their control. Even though she risked being detained and forcibly removed, neither the applicant nor the sponsor took timely action. It does demonstrate a degree of contempt towards the Australia’s migration laws which, in turn, casts doubt on the visa applicant’s capacity to uphold conditions imposed on this visa if it were granted.  

24. It is deeply disturbing to the Tribunal and the visa applicant’s behaviour as well as the sponsor has invited it to consider that this spousal relationship was contrived, at least in part, with a degree of malice of forethought for migration purposes.

25. The visa applicant has claimed that there are compelling reasons for this Schedule 3 to be waivered. The expression ‘compelling reasons’ is not defined for these purposes.

26. 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]. While cl.820.211(2)(d)(ii) is a time of application criterion, 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. This authority is significant in the present case.

27. The Tribunal notes that at the time of application, the visa applicant had already given birth to her first child and had claimed to have already been a relationship for many years prior to application.  

28. Primarily, the visa applicant has argued she will be unreasonably separated from her children for at least one year while she waits for an offshore partner visa to be assessed and then granted. She will not be able to provide direct care and nurturing which will adversely impact on the children, as well as negatively affect her emotionally. It is further claimed that she does not want to be separated from the sponsor who she deeply loves and that the family unit will face financial hardship.

29. Curiously, it has been argued that the eldest child is enrolled at a prestigious fee-paying school, Wesley College, and they would be forced to cancel or postpone the enrolment. This is not a compelling reason in itself for the waiver to be granted. It is also argued that requiring the visa applicant to apply for a visa offshore will endure hardship arising from strained finances of the family. However, that problem could be addressed by enrolling her eldest child in a lower fee paying school or a state school who has no fees.

30. It is not necessarily unreasonable for the applicant and her children to travel to China with her while the sponsor continues to work in Australia. Strong and durable genuine relationships can endure such strains and challenges arising from such separations. In this regard, the Tribunal note the applicant’s family back in China will be supportive.

31. However, the Tribunal notes that the sponsor does not appear to be a high income earner as ride-share driver and that he has probably overextended himself and his family with debts. The Tribunal accepts his hardship, both emotionally and financially, would be compounded by not waiver Schedule 3 exclusion.  This hardship would be even more exacerbated if his children remained in Australia while his putative spouse moved to China.

32. The Tribunal is most mindful of the impact of the visa applicant’s two minor children. It assesses the wellbeing of the visa applicant’s children overrides its abiding concerns that neither of their parents have demonstrated much respect for Australia’s migration laws. The Tribunal finds the young children in this matter are Australian citizens whose better interests are served in not having their parent’s temporarily separated and that they will better enjoy the nurturing and care of both parents without interruption.

33. The Tribunal has also notes the waiver was introduced to provide flexibility for the Minister where compelling circumstances arise, but only where there are reasons of a ‘strongly compassionate’ nature.[2] The Statement referred there being Australian citizen children from the relationship as one of the examples of where a waiver may be justified.

    [2] While the Explanatory Statement provides background information, the focus should remain on the wording in cl.820.211(2)(d)(ii). It would be erroneous to ask if there were reasons of a ‘strongly compassionate’ nature when the wording of the provision asks if there are ‘compelling reasons’.

34. When cumulatively considering the compelling circumstances of the Australian citizen children in this matter, the Tribunal considers this to be a sufficiently compelling reason to not apply the Schedule 3 criteria and meets cl.8202.211(2)(d)(ii).

35. The visa applicant and the sponsor should be aware that the Tribunal has reached this finding only marginally in their favour and despite the visa applicant’s contemptible behaviour towards Australia’s migration laws.

36. The Tribunal makes no assessment in this matter that the couple belong to a genuine mutually committed marriage to the exclusion of all others, either at the time of application or at the time of this decision.

    Conclusion

37. 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).

38. 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

39. 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

    Brendan Darcy
    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.