He (Migration)

[2022] AATA 3542

He (Migration) [2022] AATA 3542 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Stephanie He

VISA APPLICANT:  Mr Yiang He

REPRESENTATIVE:  Mr Da Wei David Gu

CASE NUMBER:  2201539

HOME AFFAIRS REFERENCE(S):          BCC2019/6687417

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 September 2022 at 2:10 am (WA time)

DATE OF WRITTEN RECORD:                30 September 2022

PLACE OF DECISION:  Perth

DECISION:       The Tribunal remits the application for a Visitor

(Class FA) visa for reconsideration, with the

direction that the visa applicant meets the

following criteria for a Subclass 600 (Visitor)

(Class FA) visa:

·   Public Interest Criterion 4014 for the purposes of subclause 600.213(1) of the Regulations.

Statement made on 30 September 2022 at 10:51am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – compassionate or compelling circumstances affecting an Australian citizen – within three years of departing Australia – limited ties to the home country – applications for permanent visas – request for Ministerial Intervention – best interests of the Australian citizen child – education – health care – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 140, 351
Migration Regulations 1994, Schedule 2, cls 600.211, Schedule 4, Public Interest Criterion 4014

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD

1. MEMBER: All right, this is an oral decision in relation to a decision of the Minister for Immigration, or Minister for Home Affairs rather.  That decision was made on 4 February 2022 to refuse to grant you a visitor class FA visitor tourist subclass 600 visa. 

1. Now your daughter Stephanie, who is still an infant, she is technically speaking, the review applicant in relation to this matter.  Of course, she is far too young to act in that capacity.  Now it’s helpful to look at the reasons why this visitor visa was refused.  The delegate considered you did not meet one or more clauses in schedule two of the regulations.

1. Now the delegate found you did not satisfy subclause 600.2131 of the Migration Regulations and that reads that the applicant satisfies public interest criterion numerous, I mentioned, but in particular, public interest criteria 401 4. Now that reads as follows, if the applicant is affected by either of the risk factors specified in (2) and (4), A the applicant is made more than three years after the departure of the person from Australia, referred to in that subclause.

1. Or, and this is the important bit, the minister is satisfied that in the particular case, compelling circumstances that affect the interests of Australia.  Now based upon everything that I have read and heard, there are no compelling circumstances that affect the interests of Australia, so I am going to discount that.

1. Or, and I am continuing,  there are compassionate or compelling circumstances that affect the interests of an Australian citizen and Australian permanent resident, or an eligible New Zealand citizen justify the granting of the visa within three years after the departing, of course, you were seeking the visa within three years after departure, and you ran foul of that.

1. According to departmental records, and I am still reading from the decision, you departed Australia on 17 September 2019 as the holder of a bridging visa E.  That was granted while you held another bridging visa granted more than 28 days after your previous substantive visa ceased.  Based on the information before the delegate, the delegate considered that you may be affected by a risk factor contained in PIC 401 4.

1. As you had made the current visa application within three years after your departure from Australia on 17 September 2019.  The current application has been made within three years after your departure, you are affected by a risk factor.  On 3 February 2022, you were advised in writing of this and you were invited to comment on the circumstances. 

1. Including whether there were any compelling or compassionate circumstances that would justify granting of the visa.  You responded, I will note that the reasons or submissions were not outlined in this particular decision.  In the – in your case, the delegate was not satisfied that you had demonstrated any compelling circumstances affecting the interests of Australia.

1. I must say that I agree with that.  And nor did the delegate become satisfied that you demonstrated compassionate or compelling circumstances that affect the interests of an Australian citizen and so forth.  Now to some extent I agree with submissions as provided by your representative, it is very difficult to understand the reasoning process taken by the delegate in arriving at that point, if there was any.

1. In any event, I am conducting a hearing de novo.  I make my own assessments; I make my own findings and I make my own decisions as the tribunal.  My involvement with you, your wife and your daughter Stephanie goes back some time now.  In fact, I conducted a hearing, from recollection, in about December or so last year and I gave a decision in January 2022.

1. It’s helpful for me to revisit my reasons and I am looking at my decision.  I note that the decision was held – sorry, given on 24 January 2022.  Now the facts I had to deal with were as follows, on 16 December 2019 you applied for a visitor visa to visit Australia.

1. At that stage, Stephanie was not quite four years of age. Now the decision maker from immigration in that particular application was refused the application because you did not satisfy subclause 600.211 of the Migration Regulations. The delegate took into account the information you had provided, and the supporting document provided and, on balance, found that you had not demonstrated sufficiently strong economic employment, family or other commitments in China that would be sufficient incentive for you to return to China.

1. The delegate noted that you were unemployed as at time of decision, considered your economic circumstances and noted that you had provided some evidence of financial standing, but these amounts of money or assets could not be considered significant in the overall context of economic employment conditions and the cost of living in China.

1. I have noted that you had, in fact, given evidence on two occasions before me.  I was satisfied that you were not intending to visit Australia for business or medical purposes.  I was aware that there was some brief period that you had been an unlawful non-citizen, but I gave that really no weight, or negative weight, against your application.

1. I was satisfied that Stephanie had been born on 24 April 2019 at the Bentley Hospital in Perth, Western Australia. Now I was aware that on 13 July 2018, you had been notified of the cancellation of your then visa under section 140 of the Migration Act. It seemed that you were in Australia on a skilled independent visa and that had been granted on 4 January 2016.

1. It had been cancelled on 13 July 2018 under section 140 (1) of the Migration Act. I accepted in my decision that you had very little influence, or input, into the fact of the cancellation because it was the case that once your first wife’s visa had been cancelled, by operation of law, your visa was also cancelled.

1. To some extent, you were in a very difficult position because of the breakdown of your first marriage.  Your first wife’s visa was, in fact, cancelled on 13 July 2018.  Now things became even more complicated for you because it seemed that on 30 November 2017, your current wife had applied for a partner visa because of her relationship with you.

1. And the criteria, or part of the criteria, was – for that, was that she had a sponsor in you, of course, with the cancellation of your visa, you ran – or she ran into real problems.  All right.  Now you were first granted a visa on 13 September 2008 and that was a TU573 visa.

1. Your history, when I made the decision, indicated to me that since then, you had resided in Australia for an accumulative period of 116 months which was a period of 9 years and 7 months.  I consider the amount of time spent in Australia was clearly, in my view, indicative of you having a lengthy exposure to life here in Australia.

1. This suggested to me that you had an intention to reside here in Australia.  I had also read a ministerial intervention application of 12 November 2019.  At the time of decision, I had, before me, a letter from Regent’s College in Perth that was dated 22 March 2021.

1. The effect of that letter was that Stephanie had been accepted into school here in Perth to commence in 2022.  In fact, in February, not long after I made my decision.  Now I am not going to go deeply into the reasons but it seemed to me more likely than not that your intentions were to reside in Australia and I think that’s borne out by the fact that your wife applied for the partner visa for permanency in Australia.

1. Your daughter was born here in Australia, everything told me, or pointed towards, you having intentions to reside here permanently.  However, I had to look at your particular case broadly, and that is what I did.  It was submitted that you simply wished to accompany your daughter Stephanie, and your wife, of course, your wife, at that point in time when I made my decision, had a valid bridging visa which would’ve enabled her to return to Australia.

1. It was put to me that you wanted to come with your wife and daughter to help your daughter Stephanie settle down and ensure that she has a smooth transitional process of going to school.  Now it was put to me that there are strong compassionate reasons in the best interests of Stephanie who is an Australian citizen and that I needed to consider the best interests of the child, being Stephanie.

1. As I said to you back in February, or January, rather, this whole case caused me a fair amount of angst in some respects.  It was clear to me that the weight was clearly in favour of you having intention to reside here on a permanent basis.  But I needed to be careful and needed to consider your child’s circumstances.

1. I did accept that in relation to China, she would not be considered a citizen or child, she would be a foreign resident living in China.  Now I had done my own research to come to that conclusion.  I accepted that the likelihood of her getting the benefits of living in China, notwithstanding that she is a citizen – or you are both citizens, rather. 

1. I consider it would be more difficult for her to obtain a solid education such that she would expect to receive here in Australia.  I decided to give more weight to other things and that included the fact that you had applied for contributory parent visa to enable residency of you and your wife here in Australia.

1. Relevantly, you had paid $10,000 towards that application and it seemed to me, at the time I made my decision, that it would be unproductive, in fact, damaging, for your visa opportunities, future visa opportunities, if you were to overstay on this visa, I think that’s pretty clear.

1. Whilst I had some unease about aspects of your application, I was prepared to accept that you do have a genuine intention to remain temporarily to enable your child to settle into college here in Perth.  Now I want to make one thing clear, had I affirmed that decision back in January, I would have, without doubt, referred the matter for consideration of the minister based upon Stephanie’s status and her particular situation.

1. And I think that’s important for the purposes of this matter today.  On 6 February 2022, your representative, Mr Gu, wrote to my superior, Ms Jan Redfern, public service (indistinct), who is the Deputy President of the Migration and Refugee Division of the tribunal. 

1. He set out some of the circumstances, the background, he extracted some pertinent aspects of my decision that I’ve just referred to, I am not going to go through that again.  But the same sort of things were covered in that particular letter.  I am aware that there was application for priority processing which appears not to have been granted.

1. I must say that I had no role and I was not even aware of this particular application until relatively recently.  Just bear with me.  There were submissions provided to me two days ago.  Now in those submissions, Mr Gu referred to the law, the law I have already referred to, public interest criterion 401 4.

1. He points out it was difficult to reconcile as to how a reasonable person could have reached the decision that was made by the delegate in this particular matter.  I have taken those submissions into consideration.  There was another decision that I have read in preparation for today.  That was a decision of Member Schmitz and that was made on 4 April 2022 in Melbourne.

1. The decision was to affirm the decision not to grant you, sorry, your wife, that partner visa.  And I understand the reasons why and it was the reasons I’ve already outlined and that was the problem with the sponsorship on the cancellation of your first wife’s visa, there’s no need for me to go into that again.

1. However, I am aware that after making that decision, and I don’t think the Member had any other decision to make, there was discussion about ministerial intervention, and this is what the Member wrote:

1. ‘The applicant requested that the tribunal refer the case to the department for ministerial intervention, which gives the minister a discretion to substitute for a decision of the tribunal, another decision that is more favourable to the visa applicant if the minister thinks it is in the public interest to do so.

1. A review tribunal may refer a case to the department if the Member believes the issues involved fall within the unique or exceptional circumstances described in section 4 of the Ministerial Intervention Guidelines.’

1. As (indistinct) I am very familiar with those guidelines.  The Member goes on to state, ‘The department will assess the circumstances of the case and may refer the case to the minister where it meets the guidelines for referral.’  Further, at the hearing the Member states, ‘The applicant and Mr He gave evidence that they have a four-year-old Australian citizen daughter, Stephanie, who cannot access health care due to not being a Chinese citizen.’

1. They explained that if a patient in China presents to a public hospital, they must present a national identity card which Stephanie does not have due to being an Australian citizen.  They further explained that if they present to a private hospital, they require private health insurance.  They confirmed they have made various efforts to obtain private health insurance with Stephanie but have encountered continuous bureaucratic red tape which had been exacerbated by the COVID-19 pandemic.

1. They have now been advised my Chinese authorities that they need to obtain private health insurance in person in Hong Kong, which is not possible due to COVID-19 restrictions in China.  To date, they are yet to obtain private health insurance for Stephanie.  They are deeply concerned that, as Stephanie grows older, and as children do, suffer from sickness that she will be unable to obtain medical treatment.

1. The member goes on to state as follows, ‘The applicant and Mr He also gave evidence that Stephanie will not have proper access to education in China.  They stated that they cannot enrol her in a public school as she is not a Chinese citizen.  They stated that Stephanie can attend a private school but that she will not be permitted to sit the exams and therefore, cannot complete her education.

1. The representative made oral submissions of the same, Mr He further explained that unlike Australia, China does not have proper regulations for foreigners obtaining an education in China.  Further, the applicant and Mr he stated that China does not allow dual citizenship and therefore, Stephanie’s access to health care and education cannot simply be overcome by applying for Chinese citizenship without her relinquishing her Australian citizenship.

1. The applicant stated relinquishing citizenship was a future decision for Stephanie, rather than for her, being your wife, or yourself.  He submitted that his daughter has, effectively, been relegated to their home and does not have proper involvement in Chinese society, being denied health care and an education.’

1. I am still reading from her decision here.  He submitted that there were strong compassionate and exceptional circumstances and that it was in the best interests of his Australian citizen child that the applicant’s visa be granted.  The applicant submitted documentation showing that Stephanie had been accepted into kindergarten in Western Australia where she can commence her education in 2022.

1. I note, this is me, I note that she has not been able to attend kindergarten or schooling here in Australia to date.  Considering with her decision, the tribunal Member has carefully considered the evidence of the applicant and Mr He, along with the submissions of the representative.  The tribunal accepts that Stephanie is unable to access health care and that she will be denied a proper education in China.

1. The tribunal accepts that the applicant and Mr He have encountered various bureaucratic hurdles and will continue to do so, particularly given the hostile relations between the Chinese and Australian government.  And in light of Stephanie being an Australian citizen, the tribunal also accepts that China does not allow dual citizenship and that was a finding that I made myself also.

1. The tribunal is satisfied that the applicant’s daughter can commence her education in Western Australia and have full access to the Australian health care system.  Accordingly, the tribunal considers that this is an appropriate matter to recommend to the minister for exercise of the discretion pursuant to section 351 of the Act.

1. The tribunal has considered that there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen child.  Having regard to her young age and lack of access to healthcare in China.  End of decision.

1. Now I want to clarify that I have not spoken to Member Schmitz.  Yes, Schmitz.  I do not know Member Schmitz, in fact, I did not know that this matter had been decided until preparing for the hearing today.  I do not know whether she had access to my decision either.

1. The point of this is that two Members divided by the Nullarbor plain, independently of each other, both arrived at similar conclusions with respect to there being compelling and or compassionate circumstances in this particular case, or cases, I should say.

1. Now I am not going to back away from my findings in relation to my decision back in January.  I had made a decision and I am going to stay with it.  I made findings of fact before making that decision.  I am satisfied in this particular case that you do not satisfy public interest criterion 401 4 to the extent of part 1A.

1. That requires me to then go on to consider whether I am satisfied, in the particular case, that there are compelling circumstances that affect the interests of Australia, well, there are none in my view.  Or compassionate or compelling circumstances that affect the interests of an Australian citizen, this case being Stephanie.

1. I am not bound to accept the findings or the reason of Member Schmitz, it is not precedent, but it is something that I can take into account when I arrive at my particular view.  And I think that she is correct in arriving at the decision to refer the matter to the minister. 

1. I am satisfied – I am well satisfied that there are both compelling and compassionate circumstances that affect the interests of an Australian citizen, being infant Australian child of tender years.  I reinforce, I am well satisfied, I am satisfied that those circumstances justify the granting of the visa within three years after your departure last from Australia.

1. So the obvious conclusion is that I am going to remit this back to the department.  But I am going to do more than that.  I am going to refer my decision today, once it’s typed up, to the minister for it to join up with the ministerial intervention package on the refusal of the partner visa because I want the minister, and the minister’s staff, to be aware of this decision today.

1. I don’t want it to break down a bureaucratic hole, if I put it that way.  So that is the decision, you have been successful.  I am somewhat disappointed, I guess, in relation to how this has all turned out for you, your wife and for Stephanie.  All right, Madam Interpreter, can you please interpret this?

1. INTERPRETER:  Yes, yes, Member.

1. MEMBER:  Mr He, I have made my decision in relation to your application for this visitor visa.  And again, again, I have found in your favour.  And I am going to send this back again to the department with a direction that it accept the aspect it refused you on. 

1. I am going to do a bit more than that, I am going to send my decision of today also to the department so that it joins up with the ministerial intervention package that is currently with the minister.  Because back in April, when your wife was unsuccessful before the tribunal, that Member referred her case to the minister.

1. So I am going to make sure that my decision today joins that and the minister is aware of everything.  I understand you would be frustrated, as would your wife also, but there’s really nothing more that I can do.  I wish you the best of luck and I hope Stephanie gets here and I hope everything turns out well for you and your wife.

1. All right, there’s nothing more I can say.  Mr Gu, before we finish, is there anything you wanted to raise perhaps I hadn’t addressed or considered

1. MR GU:  No, Member.  Look, I thank you on behalf of Mr He and Stephanie, I think it was very thought – carefully thought decision and the decision you’ve made to refer the matter to the minister is very appropriate in the circumstances, thank you.

1. MEMBER:  All right, thank you for your help.  I appreciate the detailed, well thought through submissions also, so thank you for that.  All right.  Good luck, Mr He, thank you, Madam Interpreter, thank you, Mr He.

END OF ORAL DECISION

Michael Judd
Member