Li (Migration)

[2020] AATA 5418

Li (Migration) [2020] AATA 5418 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rugui Li

CASE NUMBER:  1824104

HOME AFFAIRS REFERENCE(S):          BCC2017/2859794

MEMBER:Rosa Gagliardi

DATE:23 December 2020

PLACE OF DECISION:  Australian Capital Territory

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 23 November 2020 at 3:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – possible manipulation of visa history – validly married – sponsor’s ill health and applicant’s support – extreme vulnerability during COVID-19 pandemic – persuasive medical evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 820.211(2)(d)(ii), 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 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. The applicant applied for the visa on 9 August 2017 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 (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) because it was not considered that there were compelling reasons for waiving the Schedule 3 criteria.

4. This application was made on 9 August 2017 making the case outstanding for some time.  Given the circumstances in this case which required an expedited approach, and given the ill health of the sponsor, the Tribunal sought further submissions and evidence from the applicant in writing.  After receiving such material, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

7. 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).

8. 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. These criteria are set out in the attachment to this decision.

   Criterion 3001

9. 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.

10. The applicant last held a visa on 6 February 2016.  This application was lodged on 9 August 2017.

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

    Compelling reasons

12. 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.

13. 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.

    Did the applicant manipulate her circumstances to give rise to compelling reasons?

14. The applicant’s migration history is as follows:

    ·The applicant entered Australia for the first time on a subclass 600 Tourist visa.  She departed Australia on 14 June 2015;

    ·She returned to Australia on 6 November 2015, again on a Subclass 600 Tourist visa;

    ·On 30 November 2015 the applicant lodged a Protection visa (subclass 866) and was subsequently granted an associated Bridging visa A;

    ·On 9 August 2017 the applicant lodged the Partner visa application under review; and

    ·On 12 September 2017 the applicant withdrew her Protection visa application.

15. The Tribunal considers that it is more likely than not, that the applicant’s initial Tourist visas were lodged with a keen eye to gaining a permanent migration outcome to Australia.  Her readiness to withdraw her Protection visa application when she had found another avenue to gain her goal to remain in Australia permanently, through her relationship to her sponsor,

    
    

    Mr Cuthill, does reflect on her readiness to manipulate the Australian migration process.  It appears unlikely that had the applicant held genuine fears for her life on return to her home country, she would have withdrawn such claims. 

16. The Tribunal places significant adverse weight on the applicant’s manoeuvring to ensure her continued presence in Australia.

17. Notwithstanding the applicant’s conduct in terms of her migration status in Australia, the Tribunal is also required to give weight to any compelling reasons advanced to waive the Schedule 3 criteria.

    The circumstances of the sponsor

18. The sponsor is 75 years of age.  The applicant is 42 years old.

19. From the medical evidence, it is clear that the sponsor, Mr Cuthill, is a particularly unwell elderly man.  According to his medical records his conditions include:

    
    
               

    -     angioplasty-coronary

    
    
              

    -     Ischaemic heart disease

    -    Non-St-elevation myocardial infarction

    -    Dermatitis

20. In his submission of 17 November 2020, the migration agent has written:

    As such, the Sponsor has a history of skin and heart disease, in addition to difficulty breathing and frequent chest discomfort from factory work performed many years ago.  He states that he has serious coughing fits to the point where he faints whenever he smells perfume or hairspray, which is why he cannot travel by public transport.  The Sponsor’s history of lung issues have become even more of a concern during the current outbreak of COVID-19 as he is medically considered to be at high risk of severe illness if he were to contract the virus.

21. It is argued that the sponsor has also had fainting episodes and severe back pain which the Tribunal accepts, even though there is a paucity of medical evidence on these matters.  Nonetheless, the Tribunal has sighted relevant hospital discharge documents for the sponsor and accepts that he has had fainting spells which would have been frightening and disorienting. 

22. The sponsor has also provided a more recent letter from his General Practitioner dated

    
    

    16 November 2020, stating, “John has problems with his memory and has had this since being a victim of a car accident some years ago.  He relies on the support of his wife to assist him with daily activities”.

23. In his statutory declaration dated 20 November 2020, Mr Cuthill has confirmed his medical illnesses, especially his heart and lung conditions which have deteriorated over the last few years.  The sponsor states that he needs the applicant to remain in Australia as he is dependent on her in many ways, “Especially during this pandemic period, she has been helping me with cooking, cleaning, buying groceries, and other shopping.  She also assists me financially and pays for all the gas bills as well as some of the water and electricity bills.  My only income is through a monthly pension”. 

24. Further, the sponsor declares, “During the past medical incidents, my wife has sent me to the hospital and kept me company at the hospital. I fear that if my wife is not with me there will be no one to assist me, and seek help if I am unconscious or needing emergency assistance.  Especially since a car accident in the past, I have been having issues with my memory.  I have difficulty remembering things, especially numbers and words.  I sometimes even forget to feed myself.  I need my wife with me to be with me and take care of me.  My wife is also my emotional support.  If I did not have her around, I would be very lonely as I do not have friends or family to accompany me.  I also believe that I suffer from depression.  I have contemplated suicide and I am in the process of seeking help from a psychologist.  I have made an appointment to see a psychologist…I feel so much happier and calmer whenever my wife is around.  Just knowing that she will be by my side gives me so much to look forward to…I cannot travel to China to be with her as I will not be able to receive any pension payments if I am out of the country.  Losing my pension payments would be a death sentence for me.  Additionally, there is no one else who can watch over my house or my cat”.

25. The Tribunal has allowed the sponsor’s words to speak for themselves because the Tribunal considers him a genuine witness who has set out his circumstances in a clear and credible manner.

26. The Tribunal also considers that the applicant genuinely believes that the sponsor provides him with support and companionship and that his quality of life would be greatly diminished without him having her in his life.  The sponsor has spoken openly and honestly about the loneliness he would experience and the significant hardships he would face living alone when he is prone to adverse medical events at any time. 

27. The Tribunal also accepts that during the COVID-19 pandemic the sponsor is extremely vulnerable and that if the applicant supports him by undertaking shopping and ensuring the sponsor is not exposed to risk, then this in itself constitutes compelling reasons for waiving the Schedule 3 criteria.

28. The Tribunal has had regard to the arguments mounted about the financial hardship that the sponsor would face if the applicant were to return to her home country to wait while her Partner visa was being assessed under Regulation 1.15A.  The Tribunal places lesser weight on these matters, however, as had the sponsor been well and medically fit, it would have been open to him to make household arrangements that did not place strain on his budget, such as renting smaller premises or selling assets if he owns any.

29. It has been strongly argued by the migration agent that the parties are in a genuine and continuing spousal relationship and that this of itself places this matter within the requirements for waiving the Schedule 3 criteria.  The Tribunal acknowledges that the parties were married on 10 July 2017.  As such, the relationship can be considered a long-standing one.  However, without something more, and in isolation, the longevity of the relationship itself is not a significant consideration.

30. Having had regard to the sponsor’s submissions to the Tribunal, it is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

31. Postscript:  The Tribunal notes that the migration agent requested that this matter be heard urgently because, “Mr Cuthill has been having serious issues with his health, which might affect his ability to give evidence at the hearing should it not be expedited”.  The Tribunal duly scheduled a hearing, but the agent responded that further time was necessary to prepare for the case.  The Tribunal does not take issue with the matter being granted priority - it clearly requires expeditious handling.  However, this was a straightforward case to prepare. It was only when the Tribunal undertook outreach that a submission with further evidence was provided to enable the Tribunal to make a decision on the papers, and not delay the matter with a hearing.  In seeking priority handling by the Tribunal, it is assumed that a case will be prepared to a decision-ready standard to assist the Member treat it accordingly. 

32. The Tribunal also notes that photos from a medical incident befalling the sponsor were taken on 15 November 2020.  The photos show an ambulance at the home of the sponsor and him being medically attended to in his home after a collapse.  The Tribunal is not sure as to who might have taken these photos as they can hardly be described as natural photos one would take in the middle of a medical emergency.  Clearly, they were taken for the benefit of the Tribunal to enhance the applicant’s claims.  Accordingly, this material is not helpful to the applicant’s case.  What has been persuasive is the medical evidence submitted by those medically caring for the sponsor and the sponsor’s own account of his circumstances.

33. 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

34. 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.

    Rosa Gagliardi
    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.