Huang (Migration)

[2018] AATA 263

Huang (Migration) [2018] AATA 263 (16 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jin Xiang Huang

VISA APPLICANT:  Ms Landi Huang

CASE NUMBER:  1704715

DIBP REFERENCE(S):  BCC2016/1830228

MEMBER:Peter Emmerton

DATE:16 February 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 16 February 2018 at 10:39am

CATCHWORDS
Migration – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective marriage) – Sponsor’s sponsorship limitation – Compelling circumstances

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20J Schedule 2 cls 300.213 300.222

CASES
Babicci v MIMIA (2005) 141 FCR 285
Babicci v MIMIA [2004] FCA 1645

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Ms HUANG Landi, applied for the visa on 23 May 2016. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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. Relevantly to this matter the primary criteria include cl.300.222.

3. The delegate refused to grant the visa on 17 January 2017 on the basis that the visa applicant did not satisfy cl.300.222 of Schedule 2 to the Regulations because the sponsor Mr HUANG Jin Xiang, has successfully sponsored three previous partners for relevant permissions, as defined by 1.20J(1AA). The sponsor therefore does not meet the sponsorship requirements of 1.20J(1)(a). Furthermore it has been less than five years since the sponsor lodged the application for Ms H E Fenhong’s Prospective (Subclass 300) visa. Therefore the sponsor does not meet the sponsorship requirements of 1.20J(1)(b).

4. The review applicant appeared before the Tribunal on 15 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether compelling circumstances affecting the sponsor exist that would indicate to the Tribunal that the sponsorship limitations should be waived.

7. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

8. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

9. The application which is currently under review was lodged in Guangzhou, China on 24 May 2016. The application only includes the primary applicant Ms HUANG Landi. The visa applicant is sponsored by Mr HUANG Jin Xiang.

10. The visa applicant is a forty four year old female from Zhaoqing, Guangdong, she has declared one previous marriage which ended in divorce on 16 October 2014.

11. There is one child from the relationship, Ms XIE Guohao, who is listed on the visa application as a non-migrating family member.

12. The sponsor, Mr HUANG Jin Xiang, is an eighty one year old male Australian citizen. He declared two previous marriages and one de facto relationship. The sponsor and his first wife, Ms HE Shengyi, commenced their marriage on 1 March 1958, he sponsored her into Australia and it ended in divorce on 12 February 2005. There were three children from this relationship.

13. The sponsor then sponsored a second wife Ms YU Yuqun, they married on 31 March 2008 and divorced on 1 March 2012. There were no children from this marriage.

14. The sponsor then applied to sponsor HE Fenhong for a Prospective marriage (Subclass 300) on 7 February 2013.  On 28 March 2013 the visa application was refused due to the sponsor’s sponsorship limitations.

15. On 14 February 2014 the Migration Review Tribunal remitted this decision with direction to grant. Ms HE Fenhong’s visa was granted on 8 August 2014.

16. On 29 September 2014 the sponsor sent a signed written withdrawal of his sponsorship in this application. Ms HE Fenhong was in Australia from 29 August 2014 until 10 September 2014.

17. The current parties claim to have met through an introduction by the visa applicant’s work associate who is also the nephew of the sponsor. The sponsor called the visa applicant on the phone in November 2014. The parties began to communicate frequently and the sponsor travelled to China in April 2015 and spent six weeks with the visa applicant. It was during this time that they decided to marry.

18. The sponsor has subsequently travelled to China in 2016 and 2017 to visit the visa applicant. He stayed in China, with the visa applicant, for approximately four weeks on each occasion. 

19. According to department records the visa applicant has not visited Australia.

20. Evidence before the Tribunal indicates that the sponsor is an eighty one year old man, living as a single man, on an aged pension. He is retired from his profession as an electrical repair man and lives in his home which he owns. The Tribunal also notes that during the hearing he required an interpreter and appears to have a limited grasp of English, which is his second language.

21. His son from his first marriage lives in China. His eldest daughter whom he sees occasionally lives in Sydney, and his youngest daughter, whom he sees rarely, lives in Adelaide with his ex-wife.

22. The sponsor claims to be in satisfactory health and the Tribunal noted that he responded to the Tribunal’s questions in a logical and seemingly alert manner.

23. The evidence given to the Tribunal by both parties appeared to be open, honest and genuine.

24. The Tribunal informed the sponsor that the only issue that the Tribunal will be deciding is the issue of the sponsorship limitation set out in r1.20J, in particular the waiving of that sponsorship limitation. It was explained to the sponsor that the Tribunal will only be making a finding in relation to cl.300.222, which imports consideration of the sponsorship limitation set out in r.1.20J.

25. The Tribunal explained that prima facie or on first impression, the sponsorship limitations set out in r.1.20J apply in this case. He has successfully sponsored three partners previously and the time period post the most recent previous sponsorship lodgement was less than five years.

26. The three previous successful sponsorships were not in dispute and each circumstance was canvassed with the sponsor. He agreed to the material facts, in regards to each of the three sponsorships, during the hearing.

27. The Tribunal explained that this sponsorship limitation may only be lifted if the Tribunal is satisfied that there are compelling circumstances affecting the sponsor, which persuade the Tribunal that the limitation should be lifted. The Tribunal also reminded the sponsor, as it had stated in its’ introductory remarks, that it had the previous Migration Review Tribunal Decision Record from the hearing dated 14 February 2014.

28. The Tribunal spent a considerable amount of time explaining the concept of compelling circumstances, citing examples of such circumstances before asking the sponsor to state any relevant compelling circumstances in support of his case. The sponsor replied that he is single, that he lives alone and because of his poor English language skills, would find it hard to find a partner. He went on to say that he would like someone to look after him when he grows old and expressed a concern that if something happened to him when he was alone, no one would know. His partner had expressed a willingness to look after him, provide companionship and stay with him until he died. He also stated that being alone affects how he feels emotionally and his health.

29. The Tribunal again canvassed the concept of compelling circumstances and provided examples in order to ensure that the sponsor understood what was being requested. In addition to the previous assertions he added that the most recent previous sponsorship resulted in his partner returning to China after 10 days in Australia. She then entered into a relationship with a man who had cared for her when she had a serious medical condition treated two or three months earlier. Under questioning from the Tribunal the sponsor revealed that he had financed the treatment.

30. The visa applicant’s evidence substantially supported the sponsor’s statements. She noted that he was older but she wanted to be with him because he was a good companion. This was in contrast to her previous husband whom she claimed had engaged in an illicit relationship. Leaving the area where her ex-husband lives and the subsequent impact of their failed relationship were stated as additional reasons for wanting to come to Australia.

31. The Tribunal spoke about the reasons it may uphold the delegate’s decision. It went on to again explain that compelling circumstances, that affect the sponsor, were required in order for the Tribunal to lift the sponsorship limitation and it was not satisfied that such circumstances had been provided. The sponsor was asked if he would like to comment or respond. 

32. The Tribunal makes no finding regarding the genuineness of the parties’ stated intention to live together as spouses.

    Is the visa applicant sponsored as required?

33. Clause 300.213 requires that at the time of application the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18. The tribunal accepts the passport and additional documentation as satisfactory evidence of the visa applicant’s identity and age. Therefore, cl.300.213 is satisfied.

34. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force. Approval of sponsorship is subject to a number of limitations contained in the Regulations including the following: r.1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship; r.1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa; r.1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); r.1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016).

35. For visa applications made on or after 18 November 2016, it also requires the prospective spouse (that is, the sponsor) to have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence.

36. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force. The visa was rejected on the basis of the sponsorship limitations contained in r.1.20J. The applicability of that limitation is not in dispute. The issue before the Tribunal relates to the waiver of that limitation on the grounds of compelling circumstances.

37. Regulation 1.20J(2) provides however that the Tribunal may approve the sponsorship of the visa applicant if the Tribunal considers that there are compelling reasons affecting the sponsor. The review applicant has raised several issues, previously stated, for which the tribunal has empathy. None of these in the Tribunal’s view reach the high bar required to meet the definition of compelling circumstances.

38. On the appropriate approach to the exercise of the discretion, in Babicci v MIMIA, Moore J stated:

    .... the Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way.  It is a way that must be irresistible to the Tribunal.  Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship. [emphasis added][1]

    [1] Babicci v MIMIA [2004] FCA 1645 (Moore J, 16 December 2004) at [17].

39. On appeal, the Full Federal Court held in Babicci v MIMIA,[2] that there was no error in construing ‘compelling circumstances’ to mean circumstances which force or drive the decision-maker to decide whether or not the jurisdictional fact arises for the exercise of the discretion. The Court said that ‘on any view of the meaning of [the] word [compelling,] the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition… should be waived’.[3]

    [2] Babicci v MIMIA (2005) 141 FCR 285.

    [3] Babicci v MIMIA (2005) 141 FCR 285 at [24].

40. Therefore, on the evidence before the Tribunal the requirements of cl.300.222 are not met.

    For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

41. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    Peter Emmerton
    Member