Hung (Migration)

[2023] AATA 4772

Hung (Migration) [2023] AATA 4772 (27 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wa Ling Hung

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1934504

HOME AFFAIRS REFERENCE(S):          BCC2016/4245315

MEMBER:Moira Brophy

DATE:27 October 2023

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 of Schedule 2 to the Regulations; and

·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 27 October 2023 at 10:26am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitations – two previous sponsorships – waiver of requirement – compelling circumstances affecting the sponsor – best interests of the children – global development delay – intention to have another child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J; Schedule 2, cls 820.211, 820.221

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 on 21 November 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 December 2016 on the basis of her relationship with her 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 (Cth) (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(4) because the applicant was not sponsored by a person who could meet the sponsorship regulations as set out in reg 1.20J(1) and there were no compelling or compassionate reasons to warrant a waiver of the sponsorship limitations.

4. The applicant appeared before the Tribunal on 24 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review.

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

   Background

7. The applicant was born in China in 1983. She has declared no previous relationships. Her father is deceased and her mother lives in Hong Kong.

8. The sponsor was born in Hong Kong, he came to Australia as a student in 1992. He became an Australian citizen on 27 August 1998. He was previously married to Ms Pui Shan Wong in the period from 15 May 2003 to 8 September 2007. He was then in a de facto relationship with Ms Yuchan Long in the period from 30 November 2008 to 30 September 2014. The sponsor sponsored both Ms Wong and Ms Long to Australia on Partner visas. His mother and two sisters are Australian citizens. His mother and two sisters live in Hong Kong with his mother spending long periods of time in Australia each year.

9. At the time of application, the parties stated they met in Sydney at Eaton Restaurant on 30 October 2014. The parties committed to each other to the exclusion of all others on 30 May 2015 being the date they married. Their daughter Giselle Chin Lok Cheng was born on 1 September 2021.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether reg 1.20J applies to limit sponsorship, and if so whether it can be waived.

    Is the applicant sponsored?

11. Clause 820.211 requires at the time of application; the applicant meets one of several alternative sub criteria. These include cl 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident, or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

12. The Tribunal is satisfied that at the time of application, the applicant had turned 18 and she was sponsored by a person who had turned 18 and was an Australian citizen. The applicant therefore meets clause 820.211.

13. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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: cl 820.221.

14. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which 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, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

15. At the time the application was lodged on 15 December 2016, Departmental records indicated that the sponsor had previously sponsored two visa applicants for a Partner visa.  The delegate found that, reg 1.20J(1)(a) was not met. The applicant was invited to provide information as to the compelling reasons that should be considered to have the sponsorship limitation waived and submitted information in response.

16. While the delegate accepted the parties were in a genuine spousal relationship, the delegate was not satisfied that compelling circumstances to warrant the waiver provision at reg 1.20J(2) had been established and refused the application on the basis that cl 820.221(4) was not met.

17. In considering the application, the Tribunal was mindful reg 1.20J(2) provides that the decision-maker may approve the sponsorship, despite the limitation, if satisfied that there are ‘compelling circumstances affecting the sponsor’. The legislative intention of this provision can be found in the Explanatory Statement which accompanied the introduction of reg 1.20J. It indicates that ‘compelling circumstances’ affecting the sponsor includes: 

    • the previous spouse or de facto partner has died;
    • the previous spouse or de facto partner has abandoned the sponsor and there are children requiring care and support;
    • the new relationship is long-standing; or
    • there are dependent children of the new relationship.

18. In submissions provided prior to hearing and in their oral evidence, the applicant and sponsor spoke of their concerns if the limitations were not waived.

19. They gave consistent evidence that they had been in a genuine, committed, and exclusive relationship since they met in 2014. The Tribunal was mindful the delegate had accepted the parties were in a genuine and committed spousal relationship and having had the opportunity to consider the financial and social aspects of the relationship together with the nature of their household and their commitment to each other, the Tribunal was firmly of the view that that finding should not be disturbed.

20. As to whether there were compelling and compassionate circumstances, the applicant said if she had to leave Australia for a period it would impact on her and her family. The parties gave consistent evidence of having lived together since they married in May 2015. The applicant is self-employed as a limousine driver, and he is paid around $75,000 per annum. He also receives income from two rental properties he owns. His income meets the needs of his family. The applicant cares for their daughter. The parties are currently living in a home owned by the sponsor’s mother.

21. The sponsor spoke of his need to have the applicant remain in Australia and the need for her to be with their child. The sponsor said they had had a challenging time with their daughter as she had been diagnosed with global development delay. She currently has an application with the National Disability Insurance Scheme to commence with a speech therapist and at the suggestion of her treating doctor she had commenced at day care two days a week as it was considered this would assist with her socialisation skills. The sponsor said the applicant was incredibly involved with the care of their daughter and was attempting to assist her to reach her full potential. Any disruption to the programs set in place to assist their daughter would be detrimental to her ongoing development. He was concerned for the effect on their daughter if the applicant had to go offshore for a time. The sponsor considered the applicant and their daughter relied on him financially and emotionally and he needed to be physically with them in Australia. The applicant told the Tribunal she felt very vulnerable and emotionally dependent on the sponsor. The sponsor spoke of the effects the visa rejection had on his mental health and he provided medical evidence to corroborate his testimony. He did not see how he could continue to meet the financial and emotional needs of their family if they were to be separated.

22. The Tribunal was mindful Australia is a signatory to the UN Convention on the Rights of the Child 1989 (CROC) and the International Convention on Civil and Political Rights 1996 (ICCPR), both of which protect the rights of children and families.

23. Articles 3 and 9 of CROC state:

    3. In all actions concerning children … the best interests of the child shall be a primary consideration.

    . . .

    9. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. . .

24. Article 23 of the ICCPR states:

    The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.

25. Consistently with these international obligations, PAM3 sets out that in a situation where there are children in Australia whose interests could be affected by the decision, the best interests of the children are to be treated as a primary consideration.

26. The Tribunal is satisfied it is in the best interests of their daughter that the applicant be able to stay in Australia and support the sponsor and their child. Any disruption to her treatment or separation from either of her parents would not be in her best interests.

27. The Tribunal accepts the evidence the applicant and the sponsor are intending to have another child and have on their evidence experienced significant difficulties in the past necessitating their being assisted in their fertility struggles by IVF. The Tribunal accepts that the situation and the threat of a separation are stressful and both emotionally and physically taxing for both parties. The sponsor gave evidence of their having embryos stored but transfer has been delayed because of the visa uncertainty. Any separation would deprive the parties of the opportunity to add to their family. Given their respective ages, the Tribunal was mindful of their declining opportunities.

28. Both singularly and cumulatively, the Tribunal is satisfied there are compelling and compassionate reasons affecting the sponsor that lead to the Tribunal finding the sponsorship should be approved.

    Overall assessment

29. On the evidence before the Tribunal, the requirements of cl 820.211 and cl 820.221(4) are  met.

30. 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

31. 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 of Schedule 2 to the Regulations; and

    ·cl 820.221(4) of Schedule 2 to the Regulations.

    Moira Brophy
    Member