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

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).
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.
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).
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Huang (Migration)

Details

AGLC: Huang (Migration) [2018] AATA 263
Case: [2018] AATA 263
Decision Date: 16 February 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Huang Landi against the refusal to grant her a Prospective Marriage (Temporary) (Class TO) visa (subclass 300). Ms Huang was sponsored by Mr Huang Jin Xiang, an Australian citizen. The core of the dispute revolved around the sponsor's previous sponsorships and the limitations imposed by migration regulations on such sponsorships.

The Tribunal was required to determine whether compelling circumstances existed that would justify waiving the sponsor's sponsorship limitations. This involved assessing the factual matrix presented by the parties, including the history of the sponsor's previous marriages and sponsorships, and the nature and timing of his relationship with Ms Huang. The Tribunal also had to consider the evidence provided by both the applicant and the sponsor, and make findings of fact on material matters in dispute.

The Tribunal found that the sponsor had previously sponsored two wives, with the second sponsorship being refused due to sponsorship limitations before being remitted by the Migration Review Tribunal. The sponsor had subsequently withdrawn his sponsorship for a third party, Ms He Fenhong, who had briefly visited Australia. The Tribunal noted that the sponsor and Ms Huang met in late 2014, after the sponsor's previous sponsorship issues. Despite the sponsor's extensive history of sponsorships and the clear limitations imposed by the regulations, the Tribunal concluded that the circumstances presented did not meet the criteria for a waiver of these limitations under clause 300.222 of the Migration Regulations.

Consequently, the Tribunal affirmed the decision not to grant Ms Huang the Prospective Marriage visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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. 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. There is one child from the relationship, Ms XIE Guohao, who is listed on the visa application as a non-migrating family member. 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. 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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