Gong (Migration)

[2018] AATA 5690

Gong (Migration) [2018] AATA 5690 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongwei Gong

CASE NUMBER:  1716029

HOME AFFAIRS REFERENCE(S):           BCC2017/1226727

MEMBER:Hugh Sanderson

DATE:19 December 2018

PLACE OF DECISION:  Sydney

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 19 December 2018 at 8:39am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons – poor migration history – father of an Australian citizen child ­– child’s medical needs – sponsor is pregnant with second child – decision under review remitted

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 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 31 March 2017 on the basis of his relationship with his 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found the applicant did not hold a substantive visa at the time of the application and did not meet criterion 3001 of the Schedule 3 criteria. Further, the delegate was not satisfied there were compelling reasons not to apply those criteria.

   Background

4. The applicant is a citizen of China and is currently 29 years old. His parents and a brother continue to live in China. He first entered Australia in January 2013 holding a Visitor visa. This visa ceased on 29 April 2013. He has not held a substantive visa since that date. The applicant remained in Australia as an unlawful noncitizen after his Visitor visa expired. He applied for a Protection visa in February 2014, however, this application was refused by the Department. The Bridging visa he had been granted while the Protection visa application was being assessed expired and he remained in Australia as an unlawful noncitizen.

5. The sponsor of the applicant is Huaiyu Liu. She was born in China and is a Chinese citizen although is currently applying for Australian citizenship. She is currently 34 years old. Her parents continue to reside in China. She first entered Australia in 2009 on a Student visa. She was previously married to Jiefeng Wu who sponsored her for a Partner visa. This was granted to her and she was granted a subclass 801 Partner (Residence) visa on 27 March 2012. She now has the right to reside permanently in Australia. She divorced Mr Wu on 27 November 2014.

6. The parties claim that they first met each other on 14 February 2016. They claim that they started living together in March 2016 and were married on 30 October 2016. There is nothing to indicate the marriage between the parties is not valid. The parties had a child together, Angela, born on 6 January 2017.

7. It was noted that the applicant did not hold a substantive visa at the time of the application and did not meet the Schedule 3 criteria. The applicant made submissions why the Schedule 3 criteria should be waived.

8. The delegate who considered the application noted the following issues when considering if the Schedule 3 criteria should be waived:

   ·There was limited information of the parties living together any time prior to their marriage;

   ·The fact that the parties may be in a genuine relationship is not, of itself, a compelling reason not to apply the Schedule 3 criteria;

   ·There is no information which would indicate the applicant made any attempt to engage with the Department after he was refused the Protection visa or made any attempts to obtain appropriate advice as to his immigration status;

   ·The claims made by the applicant in support of his Protection visa application were found to be without merit;

   ·Although providing photos of an injury he suffered, there is no independent evidence that the applicant was incapacitated to such an extent that he could not have engaged with the Department whilst he was an unlawful noncitizen;

   ·There was no information that the sponsor and their child could not wait in Australia while any offshore Partner visa application was being assessed;

   ·The skills the applicant has to obtain employment in Australia could also be used by him to obtain employment in China and provide financial support to the sponsor and his child in Australia;

   ·There is no information the sponsor could not support herself and her child in Australia without the applicant present or is dependent upon the applicant for any emotional support; and

   ·The applicant has a poor immigration history and appears to have manipulated his circumstances to be able to remain in Australia with no valid reason.

9. Taking these matters into account, the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. The delegate found the applicant did not meet the criteria in cl.820.211(2)(d)(ii) and refused the application.

   Information to the Tribunal

10. The applicant provided further information to the Tribunal including the following:

    ·Joint bank account statement of the parties;

    ·Photos of the parties together with their child and the sponsor’s mother;

    ·Registration of a business in the name of the applicant;

    ·Letter from Dr Bidarkar, paediatrician, dated 2 November 2018 noting that Angela had concerns of developmental delay with concerns of autistic features;

    ·Letter from Dr Liu dated 4 January 2018 noting the sponsor will require the removal of polyp;

    ·Letter from her Cabramatta John St Medical Complex confirming the sponsor was pregnant and due to give birth on 24 January 2019; and

    ·Ultrasound report indicating a bladder abnormality for the sponsor’s foetus.

11. The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and, if he does not, if there are compelling reasons for not applying those criteria.

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

14. 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).

15. 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.

    Criterion 3001

16. 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). In the circumstances of the applicant, the relevant day is the last day he held a substantive visa.

17. The applicant’s last substantive visa was his Visitor visa which expired on 29 April 2013. This is almost four years prior to the applicant filing the current application. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

18. 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.

19. 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.

20. When the delegate assessed the application, the delegate noted the applicant had a very poor immigration history He had failed to engage with the Department throughout the time that he was an unlawful noncitizen. Even during the period when he filed a Protection visa application and had been granted a Bridging visa did not maintain contact with the Department. The applicant appears to have been willing to abuse Australian laws and immigration assessment processes to enable him to remain in Australia for no valid reason.

21. There is no information before the Tribunal that any of the claims that the applicant made in relation to his Protection visa application have any merit whatsoever. It appears that this application was made by the applicant simply to allow him to remain in Australia and that there is no reason why he would not be able to return to China due to any circumstances that he would face there.

22. The fact is, however, that the applicant is the father of an Australian citizen child. The medical evidence provided by the applicant indicates this child may suffer from autism and certainly has some developmental delay. The child is currently receiving treatment and will continue to receive treatment to assess any developmental delay and receive appropriate treatment. It is not likely that this child will be able to obtain the treatment she will receive in Australia if she is required to live with the applicant in China while any offshore Partner visa application is filed.

23. The sponsor after giving birth to Angela suffered from postnatal depression. She received treatment for this condition at that time. The Tribunal accepts that if the sponsor were required to care for Angela without the assistance of the applicant it would put significant stress on her and also on Angela. That Angela appears to suffer from a developmental delay increases the burden that would be suffered by the sponsor in having to care for her by herself if the applicant were required to file an offshore Partner visa application.

24. The sponsor is currently pregnant and due to give birth to the parties second child in January 2019. There is a concern that this child may also suffer from some medical problems associated with an enlarged bladder. This will put further pressure on the sponsor and will increase the difficulties she faces if she is required to care for her two children without the presence and assistance of the applicant. There is a concern that as the sponsor suffered from postnatal depression after the birth of Angela, she may again suffer from this condition after the birth of her second child. The children will also be deprived of the presence of their father.

25. The sponsor previously had a business which failed. She has been declared bankrupt. As a bankrupt, this imposes restrictions on capacity to travel overseas. It would prevent her travelling to China to be with the applicant while any offshore Partner visa application was assessed.

26. In all the circumstances, the Tribunal finds that it would be impossible for the sponsor and her children to travel to China to spend any time with the applicant if he were required to file an offshore Partner visa application. The Tribunal finds that the sponsor is currently dependent upon the applicant for support to care for herself and also her child. Angela would suffer if deprived of the presence of her father, particularly in light of her developmental delay. The fact that the sponsor is pregnant and due to give birth in January 2019, and this child also faces a possible medical complications increases the need for the applicant to be in Australia to provide emotional and practical assistance to the sponsor and their children at this time.

27. For the above reasons, 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).

28. 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

29. 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.

    Hugh Sanderson
    Member