Fu (Migration)
[2025] ARTA 669
•9 May 2025
Fu (Migration) [2025] ARTA 669 (9 May 2025)
Decision and Reasons for Decision
Tribunal number: 2319943
Applicant: Ms Wenwen Fu
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2319943
Tribunal: Senior Member A Murphy
Place: Melbourne
Date: 9 May 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Partner (Temporary) (Class UK) visas for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
· cl 820.211(2) of Schedule 2 to the Regulations
Statement made on 09 May 2025 at 12:36pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – compelling reasons to waive Schedule 3 criteria – no substantive visa at the time of application – applicant departed Australia on a cruise – multiple entries permitted – genuine and long-standing relationship – limited non-compliance – reasonable steps to comply with visa conditions – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 65, 80
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 3, Condition 3001; rr 1.15, 3.07CASES
Babicci v MIMIA (2005) 141 FCR 285
Fu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 964
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32
Wu v MICMSMA [2021] FCCA 1091
Statement of reasons
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 4 May 2017 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 4 March 2017 on the basis of her relationship with the sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not meet cl. 820.211(2)(d)(ii) and therefore did not meet cl. 820.211(2)(d). The delegate assessed that the applicant did not meet the Schedule 3 Criterion 3001, which required the visa application to be made within 28 days of the last day she held a substantive visa. The delegate did not consider there to be compelling reasons for not applying the Schedule 3 criteria. The delegate’s decision was affirmed by the Administrative Appeals Tribunal (differently constituted) on 15 March 2019.
On 31 October 2023 the Federal Circuit and Family Court of Australia (FCFCA), by judgment, quashed the Tribunal’s decision and remitted the matter back to the Tribunal to determine according to law. In essence the FCFCA upheld the Tribunal’s analysis as to the operation of s 80 of the Act, but held that the Tribunal had erred in the manner in which it had approached its assessment of whether there were compelling reasons not to apply the Schedule 3 criteria.
Upon constitution to me, I made directions for the provision of further information and evidence. Having considered the updated information provided by the applicant in response to the Tribunal’s direction, it appears to me that the issues for determination in
the proceeding can be adequately determined in the absence of the parties. As the only parties to the proceeding are the applicant and a non-participating party to the proceeding and the decision is wholly favourable to the applicant, I consider it is appropriate to make a decision without hearing pursuant to s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
Background to the review
The applicant first entered Australia on 28 July 2016 as the holder of a visitor visa, subsequently departing Australia on 1 August 2016 before returning on 12 September 2016. On 9 December 2016 she embarked on a cruise to New Zealand, re-entering Australia on 23 December 2016. She married the sponsor on 18 January 2017 and lodged the visa application on 4 March 2017.
At issue before the delegate and the first Tribunal was whether by departing Australia on a cruise ship from 9 December 2016 until 23 December 2016, the applicant is taken to have
left, or not to have left, Australia. This is significant because the visitor visa held by the applicant permitted her to enter Australia on multiple occasions for a period of up to three months on each occasion.
As the applicant entered Australia on 12 September 2016, she was required by the conditions of the visitor visa to depart by 12 December 2016. The delegate found that the applicant was taken not to have left Australia when she embarked on her cruise to New Zealand, with the consequence that her visitor visa ceased on 12 December 2016. The delegate considered that as the applicant did not hold a substantive visa at the time she applied for the partner visa on 4 March 2017, she was required to meet the Schedule 3 criteria and there were no compelling reasons for not applying those criteria.
On review the first Tribunal affirmed the delegate’s decision, finding that section 80 of the Act operated with the effect that the applicant was taken not to have left Australia in December 2012, that her visitor visa ceased on 12 December 2012 and that she did not hold a substantive visa in the 28 days prior to making the partner visa application. The Tribunal concluded that the applicant did not meet the Schedule 3 criteria and that there were no compelling reasons for not applying those criteria.
The applicant’s departure from Australia on 9 December 2016
At issue in the review is whether the applicant left Australia when she embarked on her cruise to New Zealand on 9 December 2016.
Section 80 of the Act relevantly provides:
Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than the prescribed period.
For the purpose of s.80(c), r.3.07 states the prescribed period is 30 days.
Lengthy submissions were made to the first Tribunal to the effect that the applicant had left Australia during the period of the cruise in December 2016 as a consequence of which her visitor visa had not ceased and she held a substantive visa at the time she made the application for the partner visa.
The first Tribunal conducted an extensive analysis of the relevant facts, law and policy, concluding that s 80 operated so that the applicant was taken not to have left Australia when she embarked on her cruise to New Zealand. It followed that her visitor visa ceased on 12 December 2016, as a result of which the applicant was required to satisfy cl.820.211(2)(d). In considering whether the applicant satisfied cl.820.211(2)(d), the Tribunal determined that she did not satisfy criterion 3001 and there were no compelling reasons to not apply the Schedule 3 criteria to the applicant’s application for the partner visa.
In a judgment dated 30 October 2023, the Federal Circuit Court and Family Court of Australia further considered the issue as to whether the applicant had left Australia during the period of the cruise in December 2016, determining that the first Tribunal had not erred in its construction of section 80:
83. The Tribunal was correct in determining that the ordinary meaning given to the term ‘transit’ encompasses the applicant’s entry into New Zealand. The Tribunal was correct in rejecting the submission by the applicant that the Department’s policy on this issue in PAM 3 were unlawful policies. . .
94. The clear and plain intention of Parliament since the enactment of the Act has been to deem, for migration purposes, certain categories of persons to have not left Australia. That category of person has, not surprisingly, included fisherman (and possibly persons travelling in airspace: Gajjar v Minister for Immigration and Border Protection (2013) 281 FLR 370) and facilitating tourism, providing for brief transitory travel of a vessel travelling from an Australian port to a foreign port with passengers and crew.1
There is no dispute that the applicant was a passenger on a cruise ship that sailed between Australia and New Zealand between 9 December 2016 and 23 December 2016. The evidence presented to the first Tribunal is that the cruise ship stopped at a number of locations in New Zealand for periods of no longer than 12 hours and the applicant returned to the cruise ship on each occasion.
The Tribunal finds that the applicant went outside the migration zone on a vessel for a period of less than 30 days; that her entry to New Zealand was for transit purposes only; that she did not go to any other foreign country and that she remained a passenger on that vessel while outside the migration zone. Accordingly she is taken not to have left Australia by operation of section 80 of the Act.
The applicant was granted a Subclass 600 Visitor visa on 12 July 2016 allowing her multiple entries to Australia, with a stay period of three months on each entry. As the effect of s 80 is that the applicant is taken not to have departed Australia on 9 December 2016, her visitor visa ceased on 12 December 2016. As such she must meet the criteria set out in cl.820.211(2)(d).
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.
SCHEDULE 3 CRITERIA (cl 820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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).
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) and in the present circumstances the ‘relevant day’ is the day she last held a substantive visa: 3001(2)(c).
The applicant last held a substantive visa on 12 December 2016, being the date her visitor visa ceased. As she applied for the partner visa on 4 March 2017, the Tribunal finds that she
1 Fu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 964
did not make the application within 28 days of the relevant day and therefore she does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet criterion 3001, she does not meet the relevant Schedule 3 criteria and it is not necessary to go on to consider whether she meets the other Schedule 3 criteria. Rather she will not meet cl 820.211(2)(d) unless the Tribunal is satisfied that there are compelling reasons for not applying those criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24].
Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
It is not open to the Tribunal to assume the existence of a genuine spousal relationship for the purposes of the waiver assessment without giving full and proper consideration to the factors under reg 1.15A(3), as doing so may expose relevant compelling or compassionate reasons.2 In considering whether the applicant and her sponsor are in a genuine and continuing spousal relationship I have had regard to the information provided by the applicant to the Department as well as both the first and current Tribunals. I note that the first Tribunal recorded in its reasons that having viewed the evidence of the financial and social aspects of the relationship as well as the nature of the household and the parties’ commitment to one another, it was satisfied that the applicant and the sponsor were in a genuine and continuing relationship.
On the evidence before me I find that the applicant and the sponsor met in April 2016 and married in January 2017. As at the time of this Tribunal’s decision, I find that they continue to live together in rented premises in NSW. Current bank statements submitted to the Tribunal and addressed to them at the same address indicate they operate a joint bank account which is used frequently to make purchases of food, groceries and other items of the kinds that might be expected of a couple. I note that the applicant has not had work rights in Australia since her visa was refused and I accept she is financially dependent on the sponsor. A utilities bill indicates that their internet service is held in both names at that same address. The Tribunal finds that the applicant and sponsor live together at an address in NSW, that they operate a joint bank account which they use to pay for their household expenses and that the applicant is financially dependent on the sponsor. There is no evidence that they have any joint ownership of real estate or other major assets or any joint liabilities.
The Tribunal has considered the detailed statements of the applicant and the sponsor, who each provide an enormous amount of detail about their lives together over the past eight years. In considering the nature of the household I find there the applicant and the sponsor have no joint responsibility for the care or support of children, that they have lived together in rented premises and that they share responsibility for the housework.
In considering the social aspects of the relationship, I find that they represent themselves to other people as being in a married relationship with each other and that it is the opinion of their friends and acquaintances that they are in a genuine and continuing spousal
2 Wu v MICMSMA [2021] FCCA 1091 at [36]
relationship. In making that assessment I note the statutory declaration from the applicant’s mother which states among other things that she attended the wedding of the applicant and the sponsor and that the sponsor’s parents visited the applicant’s parents in Hainan in March 2018. She states she is in daily contact with her daughter and regular contact with the sponsor and the sponsor’s mother, the sponsor’s father having since died. I have also had regard to the statement from Wungsheng Yu, who describes herself as a good friend of the couple, notes the difficulties the couple have experienced since the visa application was refused and states that those close to them including their friends, family and community recognise the genuineness and strength of their relationship
It is apparent from the material before the Tribunal that the applicant and sponsor have experienced some hardship in recent years, including the death of the sponsor’s father in 2021 and the death of a number of the applicant’s relatives in China during a time her bridging visa did not permit her to travel. The Tribunal finds that the applicant and sponsor is a long standing relationship of more than eight years, that they provide each other with a significant degree of companionship and emotional support and that they see their relationship as long term.
For these reasons the Tribunal finds that the applicant and sponsor are in a genuine and continuing relationship, that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others and they do not live separately and apart on a permanent basis. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) were met at the time the visa application was made and continue to be met at the time of the Tribunal’s decision.
Departmental policy provides that as a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship that may be suffered if the parties are separated and the applicant is forced to apply for a partner visa outside of Australia, are not compelling reasons to avoid applying the Schedule 3 criteria. This is because a genuine relationship forms the basis of all partner visa applications, and hardship caused by separation, is common in the partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.3
The policy further notes that the regulations do not prescribe the circumstances that need to be considered when assessing whether or not ‘compelling reasons’ exist to not apply Schedule 3 criteria and as such, circumstances need to be considered on a case by case basis. It is noted though that the intent is to allow persons whose circumstances are genuinely compelling to regularise their status and the provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:
·fail to comply with their visa conditions, or
·deliberately manipulate their circumstances to give rise to compelling reasons or
·can leave Australia and apply for a partner visa outside Australia.
The Policy goes on to note that it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. It is intended that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a partner visa. Matters that officers should take into consideration when assessing whether the applicant’s circumstances may be considered compelling include but are not limited to:
3 Policy - Migration Regulations - Sch2 Visa 820 - Partner - The UK-820 primary applicant – Eligibility at [8.7]
·any history of non-compliance by the applicant;
·the length of time the applicant has been unlawful;
·the reasons why the applicant became unlawful;
·the reasons why the applicant did not seek to regularise their status sooner;
·what steps, if any, the applicant has taken to regularise their status (other than applying for a Partner visa).
In this case, the material available to the Tribunal does not suggest that the applicant has any history of non-compliance other the circumstances that led to the cessation of her visitor visa. She became unlawful after accidentally overstaying her visitor visa because of the effect of s 80 as discussed above. She was an unlawful non-citizen only briefly between the cessation of the visitor visa on 12 December 2016 and the grant of a bridging visa on 6 March 2017 and she did not apply for that bridging visa earlier because she believed her visitor visa remained in effect.
The Explanatory Statement accompanying the introduction of the Schedule 3 criteria states that the inclusion of a ‘waiver’ provision was in recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply for a partner visa, but would otherwise be forced to leave Australia and apply offshore, referring to the following circumstances as examples of where a waiver may be justified:
·there are Australian-citizen children from the relationship; or
·the applicant and his or her nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer
The Policy does not refer to a long-standing spouse relationship, but gives the example of where there is an Australian citizen child with a demonstrable link to the applicant, a decision may be made to waive Schedule 3 criteria in the best interests of the child.4 While there is no Australian citizen child of the relationship in this case, the Tribunal considers there to be a number of factors which cumulatively constitute compelling circumstances in this case.
The first of those is the circumstances in which the applicant ceased to hold a substantive visa. As recorded above, she embarked on a cruise to New Zealand on 9 December 2016, believing that was a departure from Australia for the purposes of resetting the three-month stay condition on her visitor visa. Had that been the case her visitor visa would not have ceased on 12 December 2016 and she would have continued to hold a substantive visa at the time the partner visa application was made.
While the applicant’s belief was legally incorrect, it is not difficult to understand how she may have formed that view given that s 80 is a relatively arcane provision of the Act and it is a common practice for persons holding visitor visas to depart Australia for short periods in order to comply with the three-month stay condition. There can be no doubt that it is the responsibility of visa holders to take reasonable steps to ensure they comply with the conditions of their visas, however the Tribunal considers that the applicant was attempting to take such steps when she embarked on a cruise in December 2016.
Secondly, the relationship between the applicant and the sponsor is now a long-standing relationship of more than eight years. In such a long-standing relationship, the Tribunal accepts there will be genuine hardship caused by the separation if the applicant is required
4 Policy - Migration Regulations - Sch2 Visa 820 - Partner - The UK-820 primary applicant – Eligibility at [3.3.2.7] 1 May 2025
to go offshore and apply for the visa. While a long-standing relationship is not referred to in the Department’s Policy, it is specifically referenced in the Explanatory Statement as cited above.
Thirdly, the evidence indicates that the applicant and the sponsor have been trying to have a child since 2017, including by receiving treatment from an IVF doctor and a Chinese medicine practitioner. Medical evidence also suggests that the sponsor is receiving treatment for severe anxiety and depression due to stressors in his life, most notably the protracted nature of the visa proceedings and the couple’s ongoing financial difficulties due in part to the applicant’s inability to work while her visa remains unresolved.
In considering the other matters set out in the Department’s policy, the Tribunal does not consider this to be a case of an applicant who deliberately manipulated her circumstances to give rise to compelling reasons and there is no evidence before the Tribunal that would suggest she has otherwise failed to comply with any visa condition. She was an unlawful non-citizen only briefly between the cessation of the visitor visa on 12 December 2016 and the grant of a bridging visa on 6 March 2017 and she did not apply for that bridging visa earlier because she believed her visitor visa remained in effect.
Considered cumulatively the Tribunal is satisfied that the unusual circumstances that resulted in the applicant becoming unlawful, the long-standing relationship between the applicant and the sponsor, together with the financial and health issues that they have experienced as a result in part of the protracted nature of these proceedings constitute compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii) and she therefore meets cl 820.211(2)(d).
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for Partner (Temporary) (Class UK) visas for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2) of Schedule 2 to the Regulations
Representative for the Applicant: Mr Tony Su Xiong (MARN: 0531691)
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