Li (Migration)

[2018] AATA 587

Li (Migration) [2018] AATA 587 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Longquan Li

CASE NUMBER:  1619843

DIBP REFERENCE(S):  BCC2015/819813

MEMBER:Linda Holub

DATE:5 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 05 March 2018 at 1:33pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Bogus documentation – Applicant used a false passport – Bridging visa holder – Relationship started through family connections – Supporting sponsor’s daughter and his own mother and son – Work together

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994 Schedule 2 cl 820.211 Schedule 3 Criteria 3001,3003, 3004

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 of a delegate of the Minister for Immigration on 8 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 October 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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. 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.820.211(2)(d)(ii) of Schedule 2 to the Regulations because the delegate was not satisfied, having considered the totality of the applicant’s circumstances, that there were compelling reasons.

4. The applicant appeared before the Tribunal on 1 November 2017 to give evidence and present arguments. At the commencement of the hearing the applicant provided the Tribunal with a detailed psychological assessment in respect of the sponsor and her daughter. The Tribunal adjourned the hearing in order to properly consider the submission.  The applicant was again invited to a hearing on 31 January 2018.  At that hearing the Tribunal also received oral evidence from the sponsor and her daughter.  A further short hearing was held on 28 February 2018.  The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent who attended the first two Tribunal hearings.

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

RELEVANT LAW

1. 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)(ii).

2. It is not in dispute that the applicant in the present case 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 in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. The criteria are set out in the attachment to this decision.

3. 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 criterion 3001(2), as set out in the attachment to this decision.

Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

10)

The applicant provided the Tribunal with a copy of the Department of Immigration’s decision record at his first hearing on 1 November 2017.  It states:

Departmental records indicate the applicant’s migration history is as follows:

You claimed, by way of two statutory declarations signed on 20 November 2014 and 9 February 2015, that you arrived in Sydney at the Kingsford Smith airport on 1 January 2006 using a South Korean passport under the name ‘Duk-kil LEE’ his date of birth was 9 October 1964.[1]

[1] A footnote in the decision record states that: ‘The date of birth of Duk-kil LEE was recorded in the National Police Certificate dated 20 September 2016 submitted by the applicant. In this National Police Certificate, the applicant also declared that he is or has previously been known as Hong Tae LEE (date of birth 29 May 1964) and Duk-kil LEE (date of birth 9 October 1964)’.

You have never held a substantive visa.

You stayed in Australia unlawfully from the day of your claimed arrival on 1 January 2006 to 29 October 2014.

You currently remain the holder of Bridging C visa (Subclass 030) which was granted in association with this Partner Visa application lodged on 29 October 2014.

You claimed that your true identity to be “Longquan LI” born on 25 November 1975 and provided a certified copy of a travel document, birth certificate and divorce certificate as proofs of your identity.[2]

[2] AAT file, folio 155.

11) The Tribunal finds that the applicant has never held a substantive visa. Consequently, he was not the holder of a substantive visa at the time he made the application for a Partner visa in October 2014. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or was a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl.820.211(2)(d)(i).

12) The applicant is required to satisfy the Schedule 3 criterion 3001 for the purposes of cl.820.211(2)(d)(ii).

13) The Tribunal has found that the applicant was never the holder of a substantive visa. Based on applicant’s evidence to the Tribunal, a statutory declaration and other information provided to the Department, the Tribunal finds that 1 January 2006 is the ‘relevant day’ within the meaning of criterion 3000(2)(c)(ii) of Schedule 3.[3]  As the application for the Partner visa was lodged in October 2014, the Tribunal is not satisfied that the application was made within 28 days after the relevant day.  The Tribunal is not satisfied that the applicant meets criterion 3001.

[3] DIBP file, folios 5 & 63.

14) Clause 820.211(2)(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

Compelling reasons

15) 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.

16) 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] and 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.

17) The Tribunal has also had regard to policy guidance in the Department’s Procedures Advice Manual (PAM3) which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who fail to comply with their visa conditions or deliberately manipulate their circumstances to give rise to compelling reasons.

18) The Tribunal is not bound by Departmental policy. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling reasons exist, the Tribunal is required to look at all the circumstances of the case.

CONSIDERATION OF CLAIMS AND EVIDENCE

19) The issue in the present case is whether there were compelling reasons for not applying the Schedule 3 requirement that the applicant be the holder of a substantive visa at the time of application or made the application within 28 days of being the holder of a substantive visa.

Evidence before the Department

20) The applicant provided information to the Department in support of his application including:

·documents regarding the parties’ identities;

·divorce certificates for both parties and their marriage certificate;

·statements by the parties;

·statutory declarations from two friends and the sponsor’s daughter;

·banking, financial and taxation records; and

·a certificate of insurance in relation to a motor vehicle showing that both parties are listed on the policy.

21) In relation to the waiver of the Schedule 3 criteria, the applicant provided statutory declarations to the Department dated 21 October 2016 from him which outlined compelling reasons for a waiver of the Schedule 3 criteria. The sponsor’s daughter provided a supporting statutory declaration.[4]  The applicant’s statutory declaration stated:

[4] DIBP file, folios, 78-81.

a.The sponsor is physically weak not only due to her age but also her health issues, so she normally only does the cooking and washing of dishes, while he cleans the house, fixes any blockages in the toilet or piping issues, and looks after the garden and garage.

b.His wife started a new business; however, due to her health condition, she cannot work long hours and constantly needs the help of others.  This means extra expenses and less profit. It seems difficult for his wife to continue on her own.

c.He cares for the sponsor’s daughter as well, for instance, picking her up from university when it is late.[5]

[5] DIBP file, folio 76.

22) The sponsor’s daughter’s statutory declaration referred to the time prior to the applicant’s relationship developing with the sponsor and the assistance he provided her daughter as a ‘helping uncle’.  It goes on to state that he helped with her enrolment in school, helped her obtain her first job, taught her to drive and introduced her to friends who have helped her study and with her language issues at the time. It also states that before the sponsor started her business they were living off the earnings and savings of the applicant and that he paid utility and phone bills. It states that he took care of household chores such as weeding the lawn, fixing taps and pipes and the car; he cleans the house; and when her grandmother came to Australia he took her out and showed them around.[6]

[6] DIBP file, folio 77.

Evidence provided to the Tribunal

23) The applicant provided the Tribunal with the following documents:

·remittance receipts for payments from the sponsor to her mother-in-law for the period from April 2015 to October 2017;

·statutory declarations and supporting letters from clients and friends;

·bank records.

24) On the day of the first scheduled hearing on 1 November 2017, the applicant provided:

·further bank records;

·supporting letters from clients and friends;

·a copy of the front of a prescription medication without reference to the recipient;

·a copy of the front of a prescription medication prescribed to the applicant;

·copies of results of various scans and x-rays, a medication summary sheet, a specialist report and a physiotherapy invoice in respect of the sponsor;

·copies of a screen print of Centrelink customer records in respect of the sponsor;

·a report written by a clinical psychologist in relation to the sponsor and her daughter.

25) The applicant also provided the Tribunal with a copy of the delegate’s decision.

Evidence provided by the applicant at hearing

26) At hearing, the applicant told the Tribunal that he travelled from Xiamen in China, to Hong Kong and subsequently to Malaysia before arriving in Australia in January 2006.  He stated he travelled to Australia on a Korean passport.  He obtained the passport through an agent.  He acknowledged that he deliberately used a fraudulent identity to enter Australia.  He stated he was just a farmer and that for four years suffered natural disasters so he spent about $30,000 to get to Australia. 

27) The applicant confirmed information in the delegate’s decision that he remained in Australia illegally until he applied for the Partner visa in October 2014.

28) The Tribunal asked the applicant why he and the sponsor did not lodge an application earlier given they were married on 30 November 2012 he stated that the purpose of the marriage was not just for the visa.  He stated that the sponsor was not healthy and his job was just as a cleaner.  He stated that in his view if they love each other, the visa can wait.

29) The applicant stated that he met the sponsor in June 2006 through mutual friends and discovered that they have a family connection. He explains that they came from the same province in China.

30)  In relation to how the relationship developed, the applicant stated that he started to chase the sponsor in 2010.  Before that she was like a sister.  He always called her sister. The Tribunal asked the applicant what changed in 2010 that resulted in his feelings changing from a sisterly regard to something else.  He responded at the end of 2009, she separated from her ex-husband and her daughter was living with the applicant and studying in Scone.  The applicant stated that in October 2006, the sponsor called him and told him that when the daughter was having a shower her then step-father came into the bathroom.

31) The Tribunal asked the applicant about the report that he had provided at the commencement of the first hearing from the clinical psychologist.  He stated that they have changed from the previous psychologist.  He said the sponsor used to see a Chinese one in Auburn but now sees a white psychologist.

32) In relation to timing of when the sponsor had first seen a psychologist, he stated that it was one to two years ago but that he was not sure of the details because he is busy at work.  On further discussion, the applicant stated that the sponsor saw the psychologist in Auburn a long time ago.  The Tribunal asked him to clarify whether he meant months or years.  He said it was years ago.

33) The Tribunal referred the applicant to a submission he had provided to the Tribunal that the sponsor’s GP had prepared a mental health care plan for her on 16 August 2017 and that she had been referred to a psychologist.[7]  The Tribunal asked the applicant whether his reference to the sponsor seeing a psychologist in Auburn was as a result of the plan that was prepared for her in August 2017.  The applicant responded that he only thinks about his work, not other things.

S AAT file, folio 110.

34) The Tribunal asked the applicant whether the sponsor had continued to see the clinical psychologist whose report was provided to the Tribunal on 1 November 2017.  The Tribunal noted that according to that report the sponsor saw the clinical psychologist on 26 and 27 October 2017.  He responded that he is too busy and he cannot remember.  The Tribunal asked the applicant if the sponsor would have told him if she had further appointments with the clinical psychologist.  He stated that if she’s not busy, she would have told him.  He stated that he does not have the right to know. 

35) The Tribunal put to the applicant that his response was concerning because he had made claims regarding the compelling circumstances which exist regarding the sponsor’s mental health and his support of her.  If he is too busy and does not have a right to know, it raises doubts about whether the sponsor requires his assistance and support in the manner claimed.  He said that in relation to these medical and psychological issues, he knows all about the physical condition but sometimes he’s very busy and has to get out very early in the morning.

36) The Tribunal asked the applicant what health issues the sponsor has.  He referred to her lower back and shoulders and that she cannot squat.  When asked how she manages her conditions, he responded that she mainly takes pain relief and if she rests well, the situation is better.

37) The Tribunal referred the applicant to the written evidence provided to the Tribunal which showed that the sponsor last had a CT scan of her lumbar spine in 2015 and that her cervical spine was x-rayed in 2009.  The evidence indicates the last time she had scans of her shoulders was in 2012 when she had an x-ray and ultrasound of her right shoulder.  She had three physiotherapy sessions in January 2011.  The Tribunal asked the applicant if the sponsor had any further follow-up since then.  He stated that she was sent for massage but it did not work.

38) In reference to claims made by the clinical psychologist that the applicant is required in Australia because he takes the sponsor to the doctors and other services that she is not capable of attending due to illness, the Tribunal asked the applicant whether the sponsor drives.  He stated that she does but not for long distances.  The applicant gave evidence that the sponsor’s main GP is in Blacktown and stated that she can walk there within 15–20 minutes.  The applicant stated that the sponsor also sees a doctor in Eastwood for her back but he has never been there with her.  The Tribunal asked the applicant if he usually goes with the sponsor to her medical appointments.  He stated she usually goes by herself, but if he does drive her, he drops her off and stays in the car sleeping.

39) The Tribunal asked the applicant whether the sponsor’s daughter had seen the clinical psychologist who provided a report submitted to the Tribunal at the applicant’s first hearing.  He stated they had made several attempts to make an appointment but were unsuccessful because the sponsor’s daughter works Monday to Friday and the psychologist does not conduct sessions on Saturdays.  He also stated that the clinical psychologist had not responded to calls and emails.  The Tribunal asked the applicant if any attempts had been made for the sponsor’s daughter to consult with a suitable mental health practitioner closer to where she lives and works who would be available at a time that suited her.  He stated he has been busy so he has not asked too much about that. 

40) The Tribunal asked the applicant about the cleaning business the sponsor operates.  He stated that he has been a cleaner since he came to Australia.  He stated that he started to do private cleaning when he moved to Sydney.  Following some comments about his understanding of taxation arrangements, the applicant stated that the sponsor started her business more than six years ago.  The Tribunal further discussed the timing in view of the claims regarding the sponsor’s back and shoulder issues.  The Tribunal asked why the sponsor commenced a business where she was unable to undertake the work involved.  The applicant stated that initially she did not have a problem.  The Tribunal referred the applicant to submissions he had provided to the Tribunal which indicated that she had an x-ray of her lower back and an x-ray and ultrasound of her shoulders in 2009. The applicant stated that the business is for him.  He stated that he was unable to issue invoices in his name because he does not have work rights so the business operates in the sponsor’s name.  The applicant added that the business in not registered.

41) The Tribunal asked the applicant about comments in the supporting statements from their clients, which he submitted to the Tribunal indicating that, for example, the parties ‘have been assisting us with cleaning our house for the last four years on a fortnightly basis’, ‘they have been cleaning our house every fortnight’ over the past six years and ‘over time they have been totally trustworthy, reliable and hard-working’, the parties ‘have been our house cleaners for over six years’, and the parties were recommended ‘based on their responsibility, attention to detail and loyalty’,[8] stressing references to both the applicant and the sponsor.

[8] AAT file, folios 129-132.

42) The Tribunal put to the applicant that the comments imply that both he and the sponsor do the cleaning at these properties.  He responded that he sponsor only does light work such as dusting and wiping.  He does any work involving machinery, such as vacuuming. 

43) The applicant stated that at the very least he works five and a half days per week but that the sponsor only goes with him about three or four only because, some customers wouldn’t allow him to go in alone as they have higher requirements.  At home he does the gardening and everything else that needs doing and inside the house he does all the chores except cooking and laundry.  The applicant stated that the sponsor’s 29 year old daughter, who lives with them and who completed her university studies, is not given many responsibilities, although she helps her mother cook and in the summer she goes shopping.  The applicant acknowledged that she could help.

44) The applicant was asked about the parties’ living arrangements.  He stated that he is renting a property and that at the moment; he is living there with the sponsor and her daughter.  When asked him what he meant by ‘at the moment’ it was just the three of them.  He responded that there were two other Chinese people living there but they had moved out.  He said the former tenants would need to be replaced because the rent is too high for him.

Evidence provided by the sponsor at hearing

45)  The Tribunal asked the sponsor about her arrival in Australia.  She gave evidence that she came on a Partner visa, having married someone who was originally from Korea and 25 years older than her.  She stated that she was introduced to him by other people.  She was in China at the time and he was in Australia.  She stated that she was married to him for four years. 

46) The sponsor stated that she and the applicant met because the came from the same ethnic background.  After they were introduced they realised they had family connections on her father’s side.  She stated that the friendship developed into a relationship from around the beginning of 2008.  At around that time, she started to have a feeling towards him but she didn’t say it out loud. She said that on 1 October 2010, the applicant talked about it with her after a situation with his ex-wife.

47) The Tribunal asked the sponsor if she was aware that her husband entered Australia on a false identity. She responded she did and when asked whether she considered this acceptable, she responded that she did.

48) The Tribunal asked the sponsor about her psychological treatments.  She stated that she had seen a Chinese person early or in the middle of last year.  Referencing the GP mental health care plan, the Tribunal asked the sponsor whether it may have been in the second half of last year following the referral by her GP.  The sponsor agreed that it may have been a result of that referral.  She stated that she saw that psychologist either two or three times but stopped because she did not like the questions that were asked of her.  The sponsor stated that the clinical psychologist she saw a few days before the scheduled first hearing is much better and that he knows what to ask.  She stated that she had seen him a total of four times, including the initial 15 minute interview she and the applicant had with him.  The sponsor gave evidence that she had told the applicant that she had continued to see the clinical psychologist.

49) When asked what physical health conditions she has the sponsor referred to her shoulder, back, knee and her eyesight.  In relation to her eyesight, she stated that when she cleans she has to wear reading glasses.

50) The Tribunal asked the sponsor how she manages her other conditions.  She stated that one doctor suggested swimming but she doesn’t dare go by herself.  She stated that sometimes she does some exercise at home and sometimes she obtains medication.  She has also attended a centre where she was advised of some management strategies such as how to relax the muscles.  The Tribunal confirmed with the sponsor information contained in a submission to the Tribunal that she has only been prescribed pain relief, including Brufen and Oseteomol (paracetamol).  In relation to the Accu-Chek Performa kit referred to in the patient medication sheet, she stated that she has been not diagnosed with diabetes but she checks her blood sugar levels herself.[9]

[9] AAT file, folio 108.

51) The Tribunal asked the sponsor about her cleaning business.  She stated that the business is in her name because the applicant does not have work rights and he cannot register. The Tribunal confirmed with the sponsor that the applicant works illegally.

52) The sponsor stated that the applicant works between five and six days per week that she mainly follows him.  When asked what she meant by that, she responded that she is not the major worker.  She works the same number of days as the applicant and she dusts while the applicant does the heavy work. When asked if she cleans kitchens she stated that she wipes, but her husband comes around for the second time.  When asked why, she said because of her eyesight, it was all white.

53) The sponsor stated that at home she does the cooking and the laundry but that the applicant hangs the washing. 

Evidence provided by the witness at hearing

54) The Tribunal asked the sponsor’s daughter (the witness) about her living arrangements and ascertained that she lives with the applicant and the sponsor in rental accommodation in Blacktown.  The witness stated that in January 2018, she commenced working as an assistant accountant for a cleaning company where she had previously interned while she finished her studies.

55) The witness stated that the business is in the sponsor’s name but that both the applicant and the sponsor work in the business.  She stated that the work is very hard.  She stated that her mother dusts and wipes. She stated that there is no business name as yet; they are considering registering the business.  The witness stated that at home the sponsor does some housework.  She stated that the applicant vacuums, mows the lawn and fixes the cars.

56) The witness stated that she is very grateful for the support provided by the applicant to her and referred to his positive influence in her life. He helped her at her first school and helped her obtain her first job as a cashier at Woolworths in Scone.  She stated that he helps them financially and emotionally and that she is very grateful.

Credibility concerns

57) The Tribunal asked the applicant about the reference in the Department’s decision record that in the National Police Certificate that he submitted to the Department he declared that he has been known by two names – Hong Tae Lee (date of birth 29 May 1964) and Duk-kil Lee (date of birth 9 October 1964). 

58) The applicant explained that he entered Australia on a passport in the name of Duk-kil Lee and that when he arrived, the agent involved in the arrangements collected the passport.  He stated that although he had used that passport to enter the Australia, he never even saw the colour of it.  He later used the name Hong Tae Lee.  He stated that he paid $1,000 to a tourism company.  He used that identity for eleven years.  He obtained a driver’s license and used that as his form of identification. 

59) The Tribunal put to the applicant that it raised concerns for the Tribunal because it demonstrates that he is prepared to rely on false information if it benefits him and therefore it undermines his credibility. As a result it called into question his claims and evidence regarding the compelling circumstances that exist in relation to the waiver of the Schedule 3 criteria. The applicant was asked if he wished to comment. The applicant responded stating that he did not use the false identity to endanger people. He used to make money. He stated that even on his license, he has 12 points.

60) The Tribunal asked the applicant if he has work rights in Australia.  He stated that he does not.  He agreed he has been working illegally.  The applicant stated that because he came to Australia illegally he was unable to obtain work rights.  The Tribunal put to him that the fact that he has worked illegally and flouted Australia’s laws in this way further undermines his credibility.  When asked if he wished to comment, he responded that he had no other way of working.

61) At the applicant’s final hearing the Tribunal reiterated its concerns regarding his credibility and that his actions flouting Australia’s migration laws and use of a fraudulent identity call into question his claims.  He has demonstrated he is prepared to engage in high level fraud.  The Tribunal nevertheless considered the totality of the evidence.

Length of relationship, the parties interdependent spouse relationship and whether there is an Australian citizen child of the relationship

62) The Tribunal has considered the applicant’s claims about the parties’ relationship and whether they provide compelling reasons to not apply the schedule three criteria. In doing so, the Tribunal has considered the kinds of reasons included in the relevant Explanatory Statement and in the Department’s Procedures Advice Manual to the extent that they are relevant to the circumstances of the applicant and his sponsor. The Tribunal acknowledges either an Australian citizen child from the relationship or a long-standing genuine relationship, on its own can be sufficient to establish a compelling reason.

63) The Tribunal is prepared to accept that the applicant and the sponsor first met in June 2006, that the applicant proposed to the sponsor in 2010 and that they subsequently married in November 2012, resulting in them having been in a partner relationship for over seven years.  The Tribunal is prepared to accept they ‘love and respect each other like husband and wife, like father and mother’.[10] This is to be expected of couples in a genuine relationship. However, the parties have failed to satisfy the Tribunal that the longevity of the relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria. The applicant did not provide evidence about any aspect of the specific nature of their relationship that provided a compelling reason.

[10] DIBP file, folio 79.

64) There are no children from the relationship.

The sponsor’s age, physical and mental illnesses and potential hardship from separation

65) The Tribunal has had regard to the oral and written evidence regarding the sponsor’s health, including the report of the clinical psychologist written two days prior to the first scheduled hearing as well as the various medical documents provided to the Tribunal. 

66) The Tribunal accepts the professional expertise provided by the clinical psychologist and his diagnosis of anxiety and depression.  No evidence was provided that the sponsor had continued to see the clinical psychologist following the date of the report, although the sponsor claimed to have done so.  The Tribunal put significant weight on the fact that the applicant was not aware of whether or not the sponsor had received any further counselling by the clinical psychologist and also stated that he only thinks about work and not other things.  This is of concern because it undermines the applicant’s claims regarding the compelling circumstances that the sponsor needs his support because of her mental health issues. 

67) In relation to the evidence regarding the sponsor being physically weak because of her ago, the Tribunal has had regard to the fact that the applicant is fifty50 years of age. No evidence was provided as to why the sponsor has been uniquely weakened by her age that would provide a compelling reason for the Schedule 3 requirements to be waivered.

68) In relation to the sponsor’s physical conditions, the Tribunal put weight on the fact that the written evidence provided was not recent in relation to the sponsor’s back or shoulder problems.  While the Tribunal was prepared to put some positive weight on the consistent oral evidence provided by the parties and witness regarding the activities/chores the sponsor undertakes, given the Tribunal’s credibility concerns that the applicant will go to great lengths to use a fraudulent identity and to flout Australia’s immigration laws for an extended period, the Tribunal was not persuaded by the oral evidence regarding the sponsor’s physical health.  The applicant’s own evidence contradicts claims referred to in a report provided by the clinical psychologist that the sponsor is reliant on the applicant to attend medical appointments.

69) Further, nothing in the evidence presented has convinced the Tribunal that the sponsor would not be able to cope without the applicant.

70) The Tribunal is not satisfied based on the available medical evidence and the oral evidence from the applicant and sponsor that the applicant has established that the sponsor’s age and health concerns provide a compelling reason to not apply the Schedule 3 criteria.

Loss of financial support

71) The Tribunal acknowledges that the parties’ financial position would change in the event the applicant is required to return to China and that they would need to make adjustments. In considering whether this provides a compelling reason to not apply the Schedule 3 criteria, the Tribunal put weight on the fact that the business is in the sponsor’s name and that she can hire someone to assist her. The Tribunal has considered the applicant’s claims that getting help would reduce their profit margin and accepts that this may be the case. However, there is no evidence before the Tribunal that the sponsor’s financial position would be dire. Further, as an Australian citizen, the sponsor may be eligible to receive a government benefit depending on her particular circumstances.

72) The Tribunal is not satisfied based on the available evidence that the financial implications for the sponsor and her daughter (who is now in full-time employment) provide compelling reasons to not apply the Schedule 3 criteria.

Sponsor’s daughter

73) In his submission to the Department outlining claims regarding compelling reasons to waiver the Schedule 3 criteria, the applicant also referred to the assistance he provides the sponsor’s daughter; he referred to caring for her and picking her up from university when it is late. The Tribunal considered the evidence provided at hearing that the sponsor’s daughter has completed a master’s degree and is now employed at a global company as an assistant accountant in the same suburb in which she lives. The Tribunal put weight on the fact that the daughter is 29 years of age. While the Tribunal is prepared to accept the applicant may have been instrumental in the life of the sponsor’s daughter, the Tribunal is not satisfied based on the available evidence that the support now provided by the applicant to her provides compelling reasons to not apply the Schedule 3 criteria.

74) In considering the claims made in relation the mental health issues in respect of the sponsor’s daughter, the Tribunal has considered the assessment by the clinical psychologist dated 30 October 2017 and as provided to the Tribunal at the commencement of the applicant’s first hearing on 1 November 2017. 

75) The Tribunal has given significant weight to statements in the report that the sponsor’s daughter has not consulted a psychiatrist in China or Australia prior to consulting Mr Kleyhans just days prior to the applicant’s first hearing date and that the sponsor’s daughter had not consulted a psychologist prior to meeting with him. It states that he is of the opinion that the sponsor’s daughter needs to consult a psychologist to deal with her past trauma and dysfunctional attachment.  No further written evidence in regard to the mental health of the sponsor’s daughter was provided to the Tribunal subsequent to that report, although a second copy of the original report was provided to the Tribunal on 22 January 2018.  

76) While the Tribunal does not question the professional expertise of Mr Kleyhans, the Tribunal has put significant weight on the following:  Mr Kleyhans spoke with the sponsor’s daughter for one hour by Skype, all the information contained in the report is based on her self-reporting and she had not previously sought to see a psychologist or a psychiatrist previously and as far as the applicant is concerned, he gave evidence that he was too busy to ask if the sponsor’s daughter had made any attempt to consult with another psychologist after having trouble setting up an appointment with Mr Kleyhans.  It is not up to the Tribunal to make a case on behalf of the applicant and if additional evidence regarding the sponsor’s daughter’s mental health issues was available, the Tribunal has put the onus on the applicant to have provided it.

77) The Tribunal is not satisfied that there is any evidence before it that compels the Tribunal to waive the Schedule 3 criteria because of the applicant’s critical role in the daughter’s life or in relation to her mental health issues. The Tribunal is satisfied that with the availability of various electronic means of communication, the applicant can continue to play an important role in the sponsor’s daughter’s life even if he were to return to China.

Adverse information put to the applicant

78) The Tribunal put inconsistent evidence provided by the parties in the terms required under s.359AA of the Act. The inconsistent information related to the differing evidence provided regarding the chores that each party undertakes. This information was critical to the Tribunal as it relates to the sponsor’s ability to manage without the applicant. The applicant responded by stating that he did not think it worth mentioning that the sponsor does all the ‘piddly chores that women undertake’ such as cleaning things like the toilet. The other element of inconsistent evidence put to the applicant was in relation to the treatment the sponsor is undertaking in relation to her back condition. The Tribunal considered this evidence critical because it relates to the seriousness of the sponsor’s back condition. He responded that there was not much difference between their responses as to whether she had ‘recently’ being treated or not.

79) The Tribunal also put information to him as required under the provisions of s.359AA of the Act that related to information on the Department’s file, regarding the applicant’s illegal entry into Australia. The Tribunal explained to the applicant that as the matter of the false identity was referred to in the Department’s decision record which he had provided to the Tribunal and had already been discussed with him in some detail it was therefore not new material before the Tribunal and was clearly known to him. The applicant agreed.

Non-disclosure certificate

80) The Department's file contains a certificate made by a delegate of the Minister under s. 375A of the Act.[11]  That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed.  The certificate relates to documents at folios 110-124 and 147 of the Department’s file, the disclosure of which it states would be contrary to the public interest because it relates to ‘sensitive and personal information relating to [a] third party’.  This certificate is invalid and of no effect because of the fact that the folio does not contain any details regarding a third party. The Tribunal considers that the reason provided for non-disclosure is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.  The Tribunal formed the view that the certificate was relevant and discussed it with the applicant.

[11] DIBP file, folio 148.

81) At hearing the Tribunal discussed the certificate with the applicant, explaining that the information had already been put to him as required under the Act.  The Tribunal provided the applicant with an opportunity to comment.  The applicant made no specific comment on the existence, relevance or validity of the certificate itself.

Other matters

82) The applicant also made claims at hearing that he is supporting two families (the sponsor and her twenty-nine year old daughter in Australia) and his mother and a son from his previous marriage in China. No evidence was presented in relation to his support for family in China, although the Tribunal notes that the applicant submitted copies receipts of funds transferred to his mother by the sponsor. Funds were transferred monthly from April to October 2015, February, June – December 2016 and monthly February-October 2017. The Tribunal accepts that funds have been transferred to the applicant’s mother. The applicant did not provide any evidence to substantiate that his mother and son are reliant on his support. Further, the Tribunal is not satisfied that the reason of the applicant supporting his son and mother provide a compelling reason of why the Schedule 3 criteria should be waived.

83) At hearing the Tribunal claimed that that he had been a farmer and that his land in China has been leased and that it would be difficult for him to return and obtain work. The Tribunal has considered this claim. No evidence was presented regarding the applicant’s lease of his and his whether he will be able to work it again if he returns to China. The Tribunal is of the view that the applicant has demonstrated his capacity to make arrangements for his livelihood by entering Australia illegally on a false identity, using a different identity for over 10 years in Australia and working illegally for that period. The Tribunal notes that the applicant has not been a farmer in Australia and as able to set up a business in his wife’s name in a different sector. The Tribunal is therefore not satisfied that the fact of the applicant having to return to China and look for work, which may or may not be on his own land, does not provide a compelling reason to not apply the Schedule 3 requirements.

84) The Tribunal is prepared to accept that the applicant is sorry that he used a false identity and remained in Australia illegally for an extended period but was not satisfied that this provides a compelling reason to not apply the Schedule 3 requirements.

85) The Tribunal has considered the other written evidence provided by the applicant.  He did not raise any other compelling reasons emanating from that material nor were any apparent in the Tribunal’s assessment.

Overall assessment

86) The applicant has submitted the parties are in a genuine relationship. He claims that their share a commitment to each other and love and respect each other like husband and wife. The applicant claims that the sponsor needs his support because of her age, physical and mental illnesses, and the sponsor’s twenty-nine year old daughter also needs his support because of her mental health and has submitted that the sponsor and her daughter the will face financial difficulties as compelling reasons to waive the Schedule 3 requirements. Other reasons put forward to waive those requirements I that the applicant regrets that he used a false identity and remained in Australia illegally and that he has leased his farm in China and his mother and son in China are reliant on him.

87) The Tribunal has considered these reasons, separately and cumulatively, but is not persuaded they provide compelling reasons for not applying the Schedule 3 criteria in this case. The Tribunal had concerns regarding the applicant’s credibility and many of the claims were not support by the evidence presented.

88) As a consequence of the findings it has made and for the reasons discussed in this decision, the Tribunal is not satisfied these reasons, whether considered separately or cumulatively, provide compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

89) For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

DECISION

90) The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Linda Holub
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.