Hou (Migration)

[2020] AATA 6018

Hou (Migration) [2020] AATA 6018 (27 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lina Hou

CASE NUMBER:  1804715

HOME AFFAIRS REFERENCE(S):          BCC2017/1839094

MEMBER:Justine Clarke

DATE:27 August 2020

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 27 August 2020 at 6:25pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – lengthy period as unlawful non-resident – compelling reasons for not applying criterion – long-term relationship – sponsor’s IVF and pregnancy – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), 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. At the time of this decision, the applicant is a 41-year-old national of China.

3. On 24 May 2017, the applicant applied for the visa based on her relationship with her sponsor, Ms Ying (Alice) Wang. At the time of this decision, the sponsor is 38 years of age.

4. At the time of application, 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. The primary criteria include cl.820.211(2).

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations because she did not meet Schedule 3 criterion 3001 in that she ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate considered the applicant’s claims that there were compelling reasons for waiving the Schedule 3 criteria, but the delegate was not satisfied that there were compelling reasons that justified the waiver of the Schedule 3 criteria.

6. On 22 February 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by her registered migration agent.

7. The Tribunal has had regard to all evidence before it, including evidence filed in response to an outreach letter sent by the Tribunal on 24 June 2020 requesting information and evidence of any compelling circumstances as well as evidence that was filed prior to the hearing which had been scheduled for 21 August 2020. Upon receipt of the latter and reflection upon the totality of the evidence before the Tribunal, the Tribunal considered that a hearing was no longer required. Pursuant to s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the visa applicant’s favour based on the material before it.

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

   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 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 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. In this case, the relevant day is the day the applicant last held a substantive visa, being 2 September 2011, the day her student visa expired. On 24 May 2017, the applicant lodged the visa application which is the subject of this review.

13. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    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 Department’s Procedures Advice Manual (PAM3) guides decision makers to consider the circumstances that resulted in the applicant becoming unlawful and whether the circumstances are beyond the applicant’s control. Notwithstanding, the Tribunal is mindful that it is not bound to follow the Government’s policy but rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether there are compelling reasons for not applying the Schedule 3 criteria.

17. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of the statutory provisions, gave two examples of circumstances in which a waiver may be justified. One of these examples is that there are Australian-citizen children from the relationship. However, there is no evidence that the applicant and the sponsor have any children together, so the Tribunal is unable to waive the Schedule 3 criteria for this reason. The other example is that the applicant and sponsor are already in a long-standing partner relationship which has been in existence for two years or longer. This matter is addressed below.

18. The written submissions of 22 July 2020 are detailed and fulsome. It was submitted that there were a number of bases on which compelling reasons arise which warrant a waiver, namely:

    ·the long-term partner relationship;

    ·in-vitro fertilisation (IVF) and the sponsor’s pregnancy;

    ·discrimination concerns if the applicant returns to China and if the sponsor goes with her; and

    ·that it is unreasonable to expect the applicant to depart Australia due to the COVID-19 Coronavirus pandemic.

    The long-term partner relationship

19. The Tribunal notes all the information and evidence on the Department’s file and on the Tribunal’s file pertaining to the claimed de facto relationship between the applicant and the sponsor. The parties claim to have commenced a committed de facto relationship in March 2016 and to still be in the relationship. In this review, the applicant has submitted signed statements made by both her and the sponsor on 8 July 2020 outlining aspects of their relationship with one another. She has also submitted evidence pertaining to the financial aspects of the relationship; the nature of their household; the social aspects of their relationship such as travel itineraries and photographs; and evidence pertaining to their commitment to their relationship such as their decision to pursue IVF in order to have a child together (discussed further below).

20. From all the evidence before it, the Tribunal is satisfied that the applicant and the sponsor are in a long-standing, committed partner relationship which has been in existence for well over four years. The Tribunal considers that the evidence of the length of the parties’ partner relationship is a compelling reason to waive the Schedule 3 criteria.

    IVF and the sponsor’s pregnancy

21. The written submissions of 22 July 2020 detail the parties’ commitment to pursuing IVF. It was submitted that any need for the applicant to depart Australia in order to apply for a partner visa offshore would come at a ‘pivotal’ time in terms of the capacity for the couple to have a child together, noting the sponsor’s advanced age amongst other considerations.

22. Both the applicant and the sponsor also addressed these issues in their recent relationship statements. For example, the sponsor stated:

    If Lina and I are forced to go back to China, our dream of having a family together may be lost forever. We have been warned that IVF is very hard, and that my pregnancy may be difficult due to my age. I would be very afraid of going through all of this if Lina could not be here with me, but if we wait too long, we may miss our chance to start a family together.

23. The applicant stated:

    If I were not able to remain in Australia during this time it would be devastating to Alice and I. We are aware that the IVF process can be very difficult and stressful on its own. Also, due to Alice’s age, it is expected that her pregnancy will be riskier than normal, and she will obviously need my care and support throughout this time. …

    My only wish is to be able to remain in Australia to support Alice, to support her through her eventual pregnancy, to be there for the birth of our child, and to be able to be together as a family.

24. On 19 August 2020, the applicant submitted medical evidence that the sponsor is pregnant with twins, with a due date on a specified date in May 2021. The Tribunal considers the sponsor’s pregnancy with twins to be a compelling reason to waive the Schedule 3 criteria.

    Discrimination concerns if the applicant returns to China and if the sponsor goes with her

25. The written submissions of 22 July 2020 contain the following submissions, which are essentially a summary of submissions made on 24 July 2017 which were before the delegate.

    1.    That as a member of the LGBTI community, Ms Hou would face widespread discrimination in various aspects of her everyday life if forced to return to China due to extremely conservative Chinese cultural and filial views, as well as inadequate legal safeguards to protect and provide equality for homosexuals and homosexual relationships.

    2.    That if Ms Wang were to choose to relocate to China with Ms Hou so as to avoid a lengthy (and indeterminate) period of separation while Ms Hou applies for a Partner (subclass 309/100) visa from outside of Australia, the couple’s relationship would not be accepted (and potentially not tolerated) in Chinese society, and they would together face serious forms of societal discrimination in various aspects of their everyday life together.

    3.    That the family comprised of Ms Wang and Ms Hou is entitled to the protection afforded by Australia’s international obligations pursuant to the International Covenant on Civil and Political Rights (ICCPR), and that the policy objective of effectively punishing Ms Hou for having remained in Australia without a visa for a period of time did not justify the hardship that would be faced by she and Ms Wang if Ms Hou were forced to return to China for a lengthy and/or indeterminate period of time to apply for a Partner (subclass 309/100) visa from offshore. 

26. The submissions of 22 July 2020 were critical of the delegate expecting further evidence than the ‘credible, independent country information’ which was quoted and referenced in some nine pages of submissions (being the submissions of 24 July 2017). Notwithstanding, the submissions of 22 July 2020 provided additional and/or further corroborative information in respect of these arguments.

27. The Tribunal has had regard to the detailed submissions and many sources referenced but  considers that it does not need to make findings in respect of this claim as the Tribunal considers that there are already reasons that are sufficiently compelling to warrant the waiver of the Schedule 3 criteria in this case.

    The impact of the COVID-19 Coronavirus pandemic

28. It was submitted that:

    Should Ms Hou be forced to depart Australia through the application of the relevant schedule 3 criteria to her case, she would presently be doing so in the midst of the COVID-19 coronavirus global pandemic—a time when the availability of international travel is extremely limited and officially discouraged, and at a time when any public interactions with other people have the potential to drastically jeopardise health and well-being.

29. Again, the Tribunal does not consider that it needs to make findings in respect of this claim as the Tribunal considers that there are already reasons that are sufficiently compelling to warrant the waiver of the Schedule 3 criteria in this case.

    The applicant’s immigration history

30. The Tribunal notes that it has had regard to the Department’s policy in respect of ‘compelling reasons’ justifying the waiver of the Schedule 3 criteria. 

31. The primary decision contains an outline of the applicant’s immigration history. The written submissions of 22 July 2020 also contain an outline of the applicant’s immigration history, based on documents received from the Department pursuant to a Freedom of Information request. It was submitted that this summary differs somewhat from the background contained in the primary decision. For example, it was noted that the delegate did not mention the applicant’s application for a Temporary Graduate (Subclass 485) visa. Further, it was submitted that ‘it is unclear what substantive visa Ms Hou held that is said to have ceased on 30 October 2015’, which was the date the delegate gave in respect of the discussion of the assessment against criterion 3001.

32. The Tribunal notes the submissions about the substantial periods in which the applicant held a lawful visa (albeit not a substantive visa) and that she has maintained substantial compliance with the conditions of her Bridging visa C. The Tribunal is also mindful that the applicant was an unlawful non-citizen for a period of time.

33. While the Tribunal considers the applicant’s lengthy period of unlawfulness to be a very serious matter, in this case, having considered all the evidence before it, the Tribunal gives greater weight to the evidence that she is in a long-standing, committed partner relationship where the sponsor is pregnant with twins.

    CONCLUSION

34. 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). 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

35. 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

    Justine Clarke
    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.