Li (Migration)

[2020] AATA 5092

Li (Migration) [2020] AATA 5092 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinhui Li

CASE NUMBER:  1826283

HOME AFFAIRS REFERENCE(S):          BCC2017/2699178

MEMBER:Hugh Sanderson

DATE:20 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2020 at 11:30am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant was not the holder of a substantive visa at the time of application – no sufficient compelling reasons to waive the Schedule 3 criteria – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Singh v Minister for Home Affairs [2020] FCCA 3180
SZOXP v MIBP [2015] FCAFC 69
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 29 July 2017 on the basis of his relationship with his 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found the applicant did not hold a substantive visa at the time of the application and did not satisfy criterion 3001 of the Schedule 3 criteria. Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.

   Background

4. The applicant is a citizen of China and is currently 40 years old. He first entered Australia in July 2011 holding a Student visa as a member of the family unit of his then wife who met the primary criteria. He was granted a further Student visa which expired on 30 November 2016. He has not held a substantive visa since that date.

5. The applicant applied for a further Student visa on 17 October 2016, again as a member of the family unit of his wife who was the primary applicant. He has a daughter from his relationship with his wife who is currently four years old. His wife’s application was refused by the Department on 5 February 2017 on the basis that the delegate was not satisfied that she was a genuine student. The applicant with his wife and child applied for a review of that decision with the Tribunal (differently constituted). On 2 July 2018 the Tribunal affirmed the Department’s decision to refuse the applicant that Student visa. At no stage over the processing of that application before the Department and the review before the Tribunal did the applicant give any information to indicate that he was no longer a member of the family unit of his wife. The applicant divorced his wife on 19 June 2017.

6. The sponsor of the applicant is Thuy Thi Bich Doan. She was born in Vietnam and is currently 42 years old. She was previously married and has three children from that relationship who are currently aged 11, 13 and 15 years old. She divorced her husband in April 2015. She is an Australian citizen.

7. The parties claimed they first met each other on 5 July 2016 when the applicant was working as a truck driver and he would have meals at the restaurant where the sponsor was working. It was claimed their relationship developed after the applicant asked the sponsor out in October 2016. The applicant claimed he proposed marriage to the sponsor on 14 February 2017 and they were married on 5 July 2017.

8. The applicant provided various documents in support of the application. This included statements by friends and family, bank statements, correspondence addressed to the parties, text messages and other supporting material. It was claimed they planned to travel to China at some stage together to meet the applicant’s family and friends there.

9. The applicant’s agent provided submissions as to compelling reasons for not applying the Schedule 3 criteria. These included:

   ·The applicant had throughout his time in Australia been lawful and complied with the visas granted to him;

   ·The decision to refuse the last Student visa by the Department was outside his control;

   ·The sponsor is unable to work full-time due to her family commitments and is dependent upon the applicant;

   ·The applicant needs to be in Australia to support the physical and emotional development of the sponsor’s children;

   ·There are no other family members who are able to support the sponsor; and

   ·The applicant had been in an unhappy and irresponsible relationship before he met the sponsor.

10. The delegate who considered the application noted the applicant did not hold a substantive visa at the time of the application and did not satisfy criterion 3001 of the Schedule 3 criteria. When considering whether there were compelling reasons for not applying those criteria, the delegate took into account the following:

    ·The parties only commenced living together after they were married in July 2017;

    ·Although the applicant claimed that he did not hold a substantive visa because he was the dependent of his wife’s application, there is no information which would indicate the applicant advised the Department at any time that his relationship with his wife had ended and he was, therefore, not a member of her family unit;

    ·There is no evidence to support the claim that the sponsor’s children are dependent upon the applicant for any reason;

    ·There is no information as to what relationship the sponsor’s children have with their biological father;

    ·As the applicant’s biological child has departed Australia, it would appear to be in the best interests of that child that the applicant be able to have contact with her in China;

    ·It is reasonable to expect some degree of emotional and financial hardship for any couple where an offshore Partner visa application must be filed;

    ·As the sponsor was previously working and supporting her children, there is no information which would indicate the sponsor or her children are financially dependent upon the applicant; and

    ·There was no information which would indicate the sponsor or the sponsor’s children have any emotional or financial dependence upon the applicant.

    Information to the Tribunal

11. The applicant appeared before the Tribunal by telephone on 19 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

12. Before the hearing commenced, the Tribunal officer contacted the sponsor by phone as she had been requested to give evidence by the Tribunal at the hearing and it had been indicated she would be giving evidence by telephone. The sponsor advised the Tribunal officer that she was on her way to work and would not be able to give evidence at the time the hearing was listed.

13. When the hearing commenced, the applicant said that the sponsor works in a restaurant as a chef making noodles and no one could replace her. He described her as quite important in the restaurant and it would be hard to replace her. He said that she worked part-time, three or four days a week. He said that she usually worked Wednesday, Thursday and Saturday, however this varied. The Tribunal indicated that it was inherently unlikely that the sponsor would not be able to be replaced for the one day to attend the hearing as she had been given sufficient notice of the hearing.

14. The applicant said that before the COVID-19 pandemic, he worked as a tour bus driver four, five or six days a week, starting at 8.00 am and usually finishing by 7.00 pm or 8.00 pm, although sometimes he would finish earlier.

15. The applicant said that he and his wife live with her three children, her older sister and mother. He said that her older sister is now not working and her mother has not worked as she is over 80 years old.

16. The applicant said that he had no family in Australia. His family in China were his child and his parents. He said that he contacts his child by telephone or video calls every two to four weeks. He said that his daughter lives with her mother. He said that he pays about AU$400‑AU$500 each month for her support. He said that his parents are retired and do not have any problems living in China. He said that his father retired some years ago and now receives a pension.

17. The applicant said his wife’s children do not have much contact with their father who lives in Canada. He said the children do not speak to him about their father.

18. The applicant said that the sponsor had been working in her current employment for about three or four years. He said that she was previously working at another restaurant before this as a kitchenhand and waitress.

19. The Tribunal asked the applicant how many bank accounts he and the sponsor had. He said that they only had the one joint bank account. The Tribunal noted that it did not appear that the sponsor’s income was paid into this account. He said that she was paid cash in hand. The Tribunal noted that the bank account did not indicate that any government benefits paid to the sponsor were paid into the account. The applicant said that the sponsor has her own bank account into which this is paid. The Tribunal noted this was inconsistent to what he had previously said, which was that he and the sponsor only had one bank account. The applicant claimed that he believed the Tribunal had only asked how many joint bank accounts the parties had, which the Tribunal indicated this was not correct.

20. The Tribunal invited the applicant to provide any compelling reasons for not applying the Schedule 3 criteria. The applicant said the compelling reasons for not applying the Schedule 3 criteria were as follows:

    1.He was not aware that this was a requirement for the visa;

    2.After he divorced his ex-wife, he and his current wife had affection for each other;

    3.He and the sponsor consulted a lawyer who told them they were eligible to lodge the application;

    4.He would have gone offshore to lodge the application if he knew he had to do it; and

    5.A lawyer told them they could do it and they loved each other very much and did not want to separate while they applied for the visa offshore.

21. The Tribunal indicated that it would attempt to telephone the sponsor so that she was able to give evidence in support of the application. The Tribunal advised the applicant to remain on hold while the Tribunal called the sponsor. The Tribunal further advised the applicant that if he was cut off for any reason that he should remain with his phone and answer it as the Tribunal would be ringing him immediately.

22. The Tribunal telephoned the sponsor, however her phone was not answered and it went through to voicemail. When the Tribunal returned to the conference call, the interpreter remained present, however the applicant had terminated his call. The Tribunal attempted to call the applicant on two occasions, however the calls went through to voicemail.

23. As the Tribunal had given the applicant an opportunity to provide all the information he wished in relation to the issue before the Tribunal, the Tribunal has proceeded to a decision on the matter without any further attempt to contact the applicant or the sponsor.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and, if he does not, if there are any compelling reasons for not applying those criteria.

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

26. 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).

27. 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.

    Criterion 3001

28. 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). In the circumstances of the applicant, the relevant day is the last day he held a substantive visa.

29. The last substantive visa of the applicant expired on 30 November 2016. This was more than seven months prior to the filing of the current application.

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

    Compelling reasons

31. 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.

32. 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.

33. There is no reason why the applicant would not be able to return to China. In statements prepared by the applicant and the sponsor, it was claimed that they planned to return to China at some stage to visit the applicant’s family and friends. The applicant’s evidence was that his parents are retired and living in China and do not have any problems. There is nothing to indicate that if the applicant were required to apply for an offshore Partner visa that he would not have the continuing support of his parents and that he would not be able to find employment to support himself. There is nothing to indicate that there is any reason why the applicant would not be able to return safely to China.

34. The evidence of the applicant at the hearing was that if he knew he was required to apply for the visa offshore that he would have done it. This again does not indicate that the applicant has any fear or concern about returning to China or that he would have any difficulties in remaining in China while any offshore Partner visa application was being processed.

35. The Tribunal is not satisfied that the circumstances the applicant would face if he were required to return to China provide a compelling reason for not applying the Schedule 3 criteria.

36. The applicant stated that as he had never been unlawful in Australia and had complied with previous visas that this was a compelling reason for not applying the Schedule 3 criteria. Every non‑citizen who is residing in Australia is expected to have a valid visa and comply with the conditions of that visa. The fact that the applicant may have complied with any visas granted to him is not a compelling reason for not applying the Schedule 3 criteria. It is noted that the basis of the applicant’s Student visa was that he was a member of the family unit of his wife who was the primary visa holder. As he claimed that his relationship with his former wife ended, this is a substantial change in his circumstances of which he was required to notify the Department. There is no information which indicates that at any time before the applicant applied for the Partner visa that he advised the Department, or the Tribunal in respect of the review application made by his former wife and the applicant to the decision to refuse the Student visa applications, that his relationship with his former wife had ended and he was no longer a member of her family unit.

37. Although this fact does the applicant no credit and undermines his claims that he always complied with his visa conditions, the Tribunal places no weight on this or the reason why the applicant did not hold a substantive visa at the time of the application when considering whether there is a compelling reason for not applying the Schedule 3 criteria. As set out above, criterion 3001 is not met if the applicant has not held a substantive visa for more than 28 days. It does not provide any exception if the applicant had previously complied with any visa he held or the reason he did not hold a substantive visa was beyond his control. The criteria in cl.820.211(2)(d)(ii) only refers to being satisfied there are compelling reasons for not applying the Schedule 3 criteria. That the applicant may claim he previously complied with the visas granted to him and it was not his fault he did not meet the criteria for the grant of a Student visa is not a compelling reason not to apply the Schedule 3 criteria. In his submissions, the applicant’s agent refers to criterion 3004 of the Schedule 3 criteria which was not considered by the delegate and, as the applicant did not meet criterion 3001, is not required to be considered.

38. The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.

39. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has considered all the aspects of the relationship, including the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed when considering if there are compelling reasons for not applying the Schedule 3 criteria.

40. It is claimed that the parties are in a long-standing relationship and this provides a compelling reason for not applying the Schedule 3 criteria. This submission relies upon, in part, the Explanatory Statement. The Explanatory Statement, providing examples of compelling reasons, states:

    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer ... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).

1. The Tribunal is required to apply the legislation which states that it must be satisfied there are compelling reasons for not applying the Schedule 3 criteria. As is stated in SZOXP v MIBP [2015] FCAFC 69 at paragraph 17:

   Context, such as legislative history or extrinsic materials, is a guide to the meaning of the statute but it “cannot displace the meaning of the statutory text” and it is the meaning of the statutory text which is where the task of statutory construction begins and ends: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2013) 250 CLR 503, 519.

2. The Explanatory Statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. As was stated by Logan J in Singh v Minister for Home Affairs [2020] FCCA 3180 at paragraph 8:

   A statement in an explanatory statement in respect of subordinate legislation cannot be a substitute or proxy for its text any more than an explanatory memorandum can be in relation to the text of a statute.

3. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties have upon each other, the parties’ relationship with any relevant children and all other relevant factors must be considered. As is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.

4. There is no information which would indicate the sponsor is so dependent upon the applicant that any hardship she would suffer from any separation from the applicant would be any greater than any other couple where an offshore Partner visa application must be processed. The sponsor has continued to work throughout the relationship in the same industry that she was working before she met the applicant. There is nothing to indicate that the sponsor has any mental health issue which would make her reliant upon the applicant to any greater extent than any other couple in a genuine relationship. The sponsor lives with her mother and sister who are able to provide her emotional support for any slight distress she may feel at being separated from the applicant while any offshore application is being processed.

5. The applicant provided a joint bank account of the parties. At the hearing, he initially claimed that this was the only account both parties had, claiming that the sponsor’s income is not shown as she was paid cash in hand. When the Tribunal indicated that government benefits which would be paid to the applicant were not disclosed in that account, the applicant acknowledged that the sponsor had her own account. No details of this account have been provided.

6. There is nothing to indicate that the sponsor would not be able to financially support herself while any offshore Partner visa application was being processed. As she is now working as a chef, it would be expected that her income would be greater than it was when she was working as a kitchenhand and waitress when she first met the applicant. There is no credible information before the Tribunal which would indicate that she has been financially dependent upon the applicant at any stage.

7. There is little credible information which would indicate any claim that the sponsor’s children are closely bonded to the applicant or that the sponsor’s children would be adversely affected in any way while any offshore Partner visa application was being processed. The applicant stated that he had been working four, five or six days a week, starting at 8.00 am and not finishing until 7.00 pm or 8.00 pm. This would indicate that the applicant does not have any significant role in caring for the sponsor’s children.

8. Apart from photos of the applicant with the sponsor’s children, there is little other information which would indicate the sponsor’s children have a close or any type of dependent relationship upon the applicant. They have the support of the sponsor’s mother who lives with them as well as the sponsor’s sister. If the sponsor was at work, it is likely that her mother and sister would provide the primary care for the children when not at school, particularly when the applicant would be at work for much of the time when the children were not at school.

9. The applicant claims to have been able to maintain a relationship with his own daughter who lives in China by telephone and video calls. If the applicant were required to return to China, it is likely that if he did have a continuing relationship with the sponsor’s children that he would be able to maintain that relationship in the same way that he currently maintains his relationship with his biological daughter.

10. The Tribunal has considered all aspects of the relationship between the applicant and the sponsor, including the relationship between the applicant and the sponsor’s children. The Tribunal is not satisfied that any aspect of that relationship when considered individually and the whole of the relationship considered cumulatively provides a compelling reason for not applying the Schedule 3 criteria.

11. At the hearing, the applicant said that he was not aware that he was required to return to China to apply for an offshore Partner visa because he did not hold a substantive visa. He claimed that he consulted a lawyer who told him he was eligible to lodge an application onshore, and if he had known that he would not meet the criteria he would not have done so.

12. The Tribunal does not accept that even if the applicant had been poorly advised by a migration agent that this provides a compelling reason for not applying the Schedule 3 criteria. The fact that the applicant did not hold a substantive visa at the time of the application does not prevent him from applying for the visa; it simply means he must show there are compelling reasons for not applying the Schedule 3 criteria. There is no evidence of what advice the applicant received when he applied for the visa. Ignorance of the law by the applicant is not a reason why, when considering whether the applicant meets the criteria for the grant of the visa, the Tribunal should ignore the requirements for the grant of that visa. The Tribunal is not satisfied that any poor or incorrect advice or misapprehension that the applicant may have had when the application was made provides a compelling reason for not applying the Schedule 3 criteria.

13. The Tribunal has taken into account the current COVID-19 pandemic and how this would affect the parties. There is nothing to indicate that if the applicant were to return to China that the authorities there would not be putting in place appropriate controls to prevent any harm happening to the applicant as a result of the pandemic. The pandemic started in China and it seems there the authorities have controlled the outbreak. The pandemic has restricted international travel. This may hinder attempts by the sponsor to travel to China to spend time with the applicant while any application is being processed. This is what most couples do when an offshore application is being processed. It is speculative to consider how long any restriction on international travel will be in place. As the applicant has shown with his own daughter in China, he is able to communicate by telephone and video calls, and the applicant and sponsor would be able to use this technology to maintain their relationship. The Tribunal is not satisfied that any short-term temporary restriction on the ability for the sponsor to spend time with the applicant in China while any application is being processed provides a compelling reason for not applying the Schedule 3 criteria.

14. The Tribunal has assessed all the circumstances of the applicant and the sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that the individual circumstances of the parties and in particular the claims made by the parties when considered on an individual basis provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal is not satisfied that when considered in combination, the total circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria.

15. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is nothing before the Tribunal to indicate the applicant would meet any of the alternate criteria in cl.820.211.

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

    DECISION

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

    Hugh Sanderson
    Member