Li (Migration)

Li (Migration) [2020] AATA 2466 (1 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Wei Li
CASE NUMBER:  1907263
HOME AFFAIRS REFERENCE(S):          BCC2018/3979913
MEMBER:Helena Claringbold
DATE:1 April 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 01 April 2020 at 3:04pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – not holder of substantive visa at time of application – not beyond applicant’s control – last substantive visa ceased in 2008 – incarcerated for violence and gang related offences – remained in Australia unlawfully – made false claims in visa application – compelling reasons for waiver – sponsor’s mental health condition – degree of hardship – applicant’s criminal and immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 161
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211; Schedule 3, Criterion 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

On 27 June 2018, Mr Wei Li, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on his spousal relationship with Mrs Xiuhua Lin, the sponsor.
On 18 July 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The refusal was based on the applicant not meeting the criterion of Schedule 3 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result the applicant did not meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.
On 26 July 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record.
On 10 September 2018, the Tribunal, differently constituted (the first Tribunal) affirmed the decision. On 18 March 2019, the Federal Circuit Court of Australia remitted the matter to the Tribunal for consideration.
On 23 October 2019, the Tribunal wrote to the applicant and invited him to a Tribunal hearing on 20 January 2020. On 1 November 2019, the Tribunal wrote to the applicant and told him that the Tribunal will consider criteria in in Schedule 3 and provided him with an extract of the relevant criteria in Schedule 3 of the Migration Regulations 1994.
On 20 January 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented by his migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case files and the evidence at the Tribunal hearing.
ISSUE
The issue in the present case is whether the applicant did not hold a substantive visa, at time of application, due to circumstances beyond his control and whether there are compelling reasons that justify the grant the visa, which would allow him to meet criterion 3004 of Schedule 3.
BACKGROUND ON THE EVIDENCE
The applicant was born in 1988 in Fujian, China. His parents and one sibling live in China. The applicant did not declare any previous marriages or de facto relationships. The applicant entered Australia on 22 August 2004 as the holder of a student visa. He was granted a further student visa which ceased on 24 February 2008.
The sponsor was born in 1988 in Fujian, China. Her parents and two siblings live in China. She entered Australia on 6 September 2008. She became an Australian citizen by grant. The sponsor did not declare any previous marriages or de facto relationships.
On 1 January 1998, the applicant and the sponsor (the parties) met when they were both living in Fujian, China. They claim to have committed to a relationship with each other in December 2013. On 25 July 2015, the parties married in Rockdale, New South Wales.
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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) of Schedule 2 to the Regulations.
In this case, a substantive means a visa other than: a bridging visa, a criminal justice visa or an enforcement visa.
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
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. In this case the applicant last held a criminal justice visa that was cancelled on 21 June 2018 and the visa application was lodged on 27 June 2018. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001 of Schedule 3.
Criterion 3003
Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 of Schedule 3 does not apply.
Criterion 3004
Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control; that there are compelling reasons for granting the visa and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
Whether the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control
The following information is recorded in the delegate’s decision record and given in the applicant’s migration agent’s submission of January 2020. The applicant’s last substantive visa ceased on 24 February 2008 and the application for the partner visa was lodged on 27 June 2018.
On 1 November 2007, the applicant was charged with gang related offences and released into the community. On 17 December 2007, just over three years after entering Australia, the applicant was in the custody of NSW Police for violence and gang related offences. From 25 February 2008, the applicant remained unlawfully in Australia. On 3 September 2008, the applicant was located by NSW Police and detained in Villawood Immigration Detention Centre (VIDC). He was charged with being armed with intent to commit an indictable offence and sentenced to imprisonment for 10 months and three days.
On 19 September 2008, the applicant lodged a protection visa application which was refused by the Department. On 17 March 2009, the refusal was affirmed by the then Refugee Review Tribunal (RRT). In 15 October 2008, the applicant was released from Villawood Immigration Detention Centre.
On 8 August 2012 the applicant was detained in VIDC. On 28 August 2012, the applicant was charged with criminal offences and taken into NSW criminal custody. On 7 November 2012, the applicant was granted a Subclass 951 criminal justice visa, for the administration of justice in Australia and released into the community.
On 7 December 2015, the applicant was convicted and sentenced to four years imprisonment for drug related offences. On 21 June 2018, the applicant’s Subclass 951 criminal justice stay visa was cancelled. On 24 June 2018, the applicant was released from Bathurst Correctional Centre and detained at VIDC.
On 27 June 2018, the applicant lodged the application for the partner visa which is under review and was refused a bridging visa. The bridging visa refusal was affirmed by the Tribunal, differently constituted. The applicant is currently residing in VIDC.
During the review of the bridging visa refusal, the applicant’s previous migration agent stated the following: the applicant was young when the (criminal) offences occurred. He was cheated by an unregistered migration agent who only paid his tuition fees for four months. This left the applicant unable to attend school and the applicant is contrite. In August 2018 in a written statement the applicant declared the following: the (criminal) offence was his first offence and he pleaded guilty at the earliest opportunity. In his statutory declaration of 17 January 2020, the applicant stated that while he was in detention, someone told him that his best option was to apply for a protection visa and he lodged the application. When the visa was refused he should have obtained legal advice but he was young and thought that he knew everything.
The applicant told the Tribunal that, he was in jail from about November 2007 and released in September 2008 and this was during the time his substantive visa ceased (24 February 2008). In a post Tribunal hearing submission the applicant stated the following: on 8 August 2012, he was detained by police and taken to VIDC. Around 28 August 2012, he was arrested and taken into custody by NSW Police. He remained in custody until 7 November 2012. Around 19 September 2012, his criminal lawyer applied for a criminal justice certificate. On 7 November 2012, he was granted a criminal justice visa and he was released into the community on bail with strict reporting conditions. He was on bail for three years and lived in the community without incident. His criminal lawyer told him that while he held a criminal justice visa he could not marry or apply for any other visa. Around 7 December 2015 he was found guilty of the supply prohibited drugs and sentenced to four years imprisonment with a non-parole period of three years. He was in jail from 7 December 2015 to 21 June 2018 and had no breaches or incidents during his jail. When he was due to be release from jail the criminal justice visa was cancelled and he didn’t realise that this would happen. The sponsor identified a migration agent who advised the parties to lodge a partner visa application and the partner visa was lodged six days after the cancellation of the criminal justice visa.
In a post Tribunal hearing submission the applicant’s migration agent stated the following: that the applicant’s criminal justice visa was cancelled on 21 June 2018 and he lodged the application for the partner visa six days later on 27 June 2018. The applicant was advised by his criminal solicitor that he was not permitted to apply for a partner visa while on a criminal justice visa. As per s.161 of the Migration Act 1958 (Cth)2 this appears to be incorrect. She has been unable to obtain a copy of the visa.
While the applicant may be remorseful and regret his actions, the applicant’s last substantive visa ceased in 2008 and he became unlawful. His evidence is that, he went to the Department and was told that his visa had ceased. It would appear that at that time he made no effort to rectify his status or depart Australia. However, in September 2008, he made false claims in his protection visa application, because on his evidence to the Tribunal, he ‘just wanted to stay’ (in Australia). With the knowledge that he had made false claims in the protection visa application, he then applied to the Tribunal for review of the refusal of the protection visa, because on his evidence to the Tribunal, he ‘just wanted to prolong the case hoping that he could win’.
The Tribunal is not satisfied by the applicant’s claims that the actions of his previous migration agent or his criminal lawyer are reasons that the applicant is not the holder of a substantive visa because of factors beyond his control. Both claims are unsubstantiated and the criminal lawyer’s advice was given in 2012, which is approximately four years after and the applicant’s last substantive visa ceased in 2008. In the first instance, the applicant does not appear to have taken any action to resolve his status when his substantive visa ceased in 2008. He became an unlawful non-citizen and then went on to make false claims in the protection visa application. The Tribunal is not satisfied that the applicant’s actions are mitigated by his age. The applicant was fully aware that to remain in Australia he was required to have a visa. He had already gone through the process of applying for and being granted student visas. The Tribunal finds that the applicant manipulated Australia’s immigration system and displayed a total disregard for Australia’s immigration laws. The Tribunal is not satisfied that the applicant is not the holder of a substantive visa because of factors beyond his control. The applicant therefore does not meet the criterion 3004 of Schedule 3.
Are there compelling reasons for granting the visa?
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.
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.
Prior to and at the Tribunal hearing the applicant put forward information in support of the parties’ relationship and information for consideration for not applying the criterion 3004 of Schedule 3 and for the granting the visa.
The Tribunal considered the evidence relating to the Schedule 3 waiver and the long-term nature of the parties relationship individually and as a whole. This included the information provided by the parties about the genuine nature of the parties’ relationship and the information detailed below about their relationship and about their circumstances. It also included information provided by witnesses at the Tribunal hearing and authors of third party statements, who informed the Tribunal of their views about the genuine and continuing nature of the parties’ relationship and the statements made by the applicant’s migration agent. Even if the Tribunal accepts that, the applicant and the sponsor have known each other since 1998 and began living together in November 2014 and have been in a spousal relationship for over four years, a genuine spousal relationship is the basic requirement for a partner visa application and the parties have failed to further satisfy the Tribunal, in this case, that the longevity of their relationship is a compelling reason for the Tribunal not to apply the Schedule 3 criteria.
On 17 January 2017, the applicant stated the following: that the parties have been trying to have a child for a long time and the sponsor has taken medication for fertility. They would love to have children and his parents would love grandchildren. In a post Tribunal hearing submission the applicant’s migration agent stated the following: the applicant is in a long term committed relationship with the sponsor who is an Australian citizen. She would suffer undue hardship if the visa is not granted. She has no family support in Australia. She visited the applicant often. She has polycystic ovaries, mild anxiety and depression. The parties have roots in Australia with a property in Bankstown and savings. The parties plan to have children but experienced fertility problems. The applicant has made ongoing contributions to Australian charities like World Vision, Labrador Rescue Inc., NSW Rural Fire Service and Keaton and O’Dwyer Fund.
In 2018, the sponsor wrote as follows: the applicant was incarcerated about three months after the parties’ married. From 2015 to 2018 she visited the applicant in jail and continues to visit him in detention. He is a good husband and takes care of her a lot. She works hard to pay her mortgage and living expenses. She is diagnosed with polycystic ovarian syndrome. This makes it harder for her to have children, which she is concerned about as the parties are fond of children. She needs the applicant with her and the parties plan to have a child. Her parents divorced when she was young. She will not give up her love (with the applicant) and does not want to be separated from him. She feels sad and lonely and does not know how to live alone in Australia without any of her family. Without the applicant by her side she feels tremendous life and mental pressure. She does not know how to reduce the stress she feels and needs help from a psychologist. The applicant has previously sponsored a child through World Vision and looks forward to supporting Australia through the UNHCR. The applicant regrets his actions and wants to become a volunteer serving the community and to help the aged and disabled. Other information relates to either charitable donations or commitments made by the applicant.
A letter dated June 2017, is from a general practitioner. This stated that the sponsor has polycystic ovarian syndrome which may affect menses and fertility. Another letter dated July 2018, is from a consultant psychologist and gives the following information: the practitioner first saw the sponsor in August 2017, when she was referred by her general practitioner for treatment for depression. The sponsor is suffering from mixed anxiety and depressed mood. Her test results indicated extreme severe levels of depression, anxiety and stress. She is worried about the visa applicant being in prison and later being detained in VIDC. She is concerned that the visa applicant’s visa will be refused. She reported depressed mood, anxiety, insomnia, poor appetite, tiredness, irritability, social withdrawal and feeling emotional with bouts of crying. The practitioner stated that it would be appreciated if special consideration could be given to the grant of the visa applicant’s visa so that he can remain in Australia and support the sponsor. Letters from another psychologist dated October 2018, March 2019 and September 2019 informed of the following: details about the parties’ relationship, their family members and applicant’s incarceration. The sponsor suffers from adjustment disorder and depressive mood, appeared visibly dull, worried and dejected. She is keen for her husband to obtain his visa. Failure to grant him a ‘carer’ visa would be disastrous for her mental health. She has never threatened self-harm or harm to others. She would be unable to help herself and no one could guarantee her safety and integrity of her mental health status. Her mental health is expected to improve significantly when her husband obtains a spouse visa. The sponsor is prescribed medication.

The Tribunal accepts that the sponsor has the conditions as claimed and that the applicant may assist and support her. It understands that, the applicant and the sponsor’s separation might make it more difficult for the sponsor to become pregnant and add to the sponsor’s health conditions and to her feeling of loneliness. It has not been provided with any independent information to demonstrate that, the sponsor is unable to continue to support herself including paying her mortgage, as she has done throughout the applicant’s incarceration. In fact, the bank statements provided record that, the sponsor deposited various amounts of money into the applicant’s inmate account and the applicant also stated that he received financial support from the sponsor and also from his mother. The Tribunal considers it admirable that the applicant assisted others through donations or promises of donations. The Tribunal understands that the applicant’s departure from Australia may introduce a level of hardship for the parties and present them with difficulties. Ultimately, the decision of where the parties live and whether they live together is up to them. The Tribunal encourages the sponsor to seek the assistance of her health professionals during any separation from the applicant. The Tribunal considered these matters individually and collectively and is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.
In July 2018, the applicant’s previous migration agent stated the following: the parties have co-invested in an apartment in Bankstown and the parties plan to live here when the applicant is released. The sponsor and the applicant’s mother mainly contribute toward the apartment. The applicant had just released from prison and was unlikely to be employed in any country very soon. The applicant’s crimes were committed when he was young and he is now more rational and mature. The applicant has become a regular volunteer at nursing homes and disability schools. The Tribunal commends the applicant on his volunteer work. The Tribunal considered the evidence about the sponsor supporting herself financially throughout the applicant’s incarceration and detention. There is no evidence before the Tribunal of the applicant being refused employment either in Australia or China. While the applicant may have been younger when he committed the criminal offences and now has the benefit of being more rational and mature, the Tribunal is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.
In August 2018, the applicant stated the following that: the sponsor is an Australian citizen. She has lived in Australia for 10 years and he has lived in Australia since 2004. Their families know each other and they have close family ties. He regrets and takes full responsibility for his actions. He understands that he breached the trust of the Australian community and realises the impact drugs have on the community. He is a changed person and will not have any contact with drugs or anyone associated with drugs. His life is in Australia with the sponsor and it would be devastating if he had to leave. The sponsor told the Tribunal the following: that the applicant regrets what he has done and is sorry that he has caused the parties to be separated. He is a changed person. He has undergone training as a dog trainer. He wants to obtain his dog trainer’s licence and contribute to the community. She visited the applicant regularly both when he was in prison and in detention and she has been waiting for him for over four years. The Tribunal considered the evidence that, in December 2007, just over three years after entering Australia, the applicant was in the custody of NSW Police for violence and gang related offences. From 25 February 2008, the applicant remained unlawfully in Australia. On 3 September 2008, the applicant was located by NSW Police and detained in VIDC. He was charged with being armed with intent to commit an indictable offence and sentenced to imprisonment for 10 months and three days. On 8 August 2012 the applicant was detained in VIDC. On 28 August 2012, when the applicant was 24 years old, he was charged with other criminal offences and taken into NSW criminal custody. On 7 December 2015, the applicant was convicted and sentenced to four years imprisonment for drug related offences with a non-parole period of three year. His history shows little consideration for the Australian community or for Australian laws. The Tribunal accepts that the applicant may feel remorse for his actions and has undergone training in handling dogs. It understands that the sponsor is an Australian citizen who has lived in Australia for many years and supported the applicant and waited for him to be released. It accepts that the departure of the applicant from Australia would present the parties’ with difficulties and challenges for a time. The Tribunal is not satisfied that these circumstances are compelling reasons not to apply the Schedule 3 criteria.
In a statutory declaration dated 17 January 2020, the applicant provided information about the parties’ relationship and about his criminal history and stated the following that: his childhood in China was poor. His parents suffered adverse repercussions when they had his sister. When he came to Australia he was supported financially by a loan taken by his parents. He paid $30,000 for one year of English study. His migration agent was expensive and ‘very bad’. The applicant served most of his time in Bathurst jail, which is a high security jail without freedom and the ‘conditions are one of the worst.’ The Tribunal appreciates that conditions in China may not be to the applicant’s liking. That he may have paid $30,000 for English lessons funded by a loan taken by his parents was a decision taken by the applicant and his parents. The Tribunal understands that being incarcerated would be challenging. However, the applicant entered Australia as the holder of a Student visa which ceased in February 2008. The applicant was required to abide by the conditions of the student visa and he did not. The applicant remained in Australia unlawfully, he was in prison because he was charged and found guilty of committing criminal offences and because he failed to abide by Australian laws. As stated in this decision record there is no independent evidence to support the applicant’s claim of negligence by a migration agent. The Tribunal is not satisfied that these circumstances are compelling reasons not to apply the Schedule 3 criteria.
The applicant told the Tribunal the following: that Mr Erzhong Zheng, his brother-in-law and Mr Zhongen Zheng, his brother-in-law’s cousin, supplied drugs into Australia and these are the drugs he was involved with. He provided a transcript of a ‘Higher People’s Court of Fujian Province, Criminal Judgement’. This recorded that Mr Erzhong Zheng, had committed a crime of drug trafficking and was sentenced to a fixed term of 15 years imprisonment and confiscation of all his personal property. It also recorded that, Mr Zhongen Zheng, had committed a crime of drug trafficking and transportation and sentenced to death with all personal properties confiscated. The applicant stated that, he didn’t know the other people named in the document and didn’t know if his name was known to Chinese authorities and didn’t know if he would be executed. In a post Tribunal hearing submission the applicant’s migration agent stated the following: the applicant expressed concerns at the Tribunal hearing about the co-accused in China receiving very serious penalties and that he may be subject to the same deprivation of life/freedom if deported to China. There is no evidence before the Tribunal to support that the applicant would be executed or the subject of deprivation should he return to China. He also provided a ‘Cuochang Villagers’ Committee, Longtain Town, Fuqing City’ ‘Certificate’. This stated that the applicant is the brother-in-law of Mr Erzhong Zhang and Ms Xiaoyan Li his sister.’ The Tribunal accepts the sentences have been given to the named offenders. However, there is no evidence before the Tribunal that Chinese authorities have any interest in the applicant. There is also no supportive information to indicate the evidence provided to have the ‘Certificate’ issued or the identity of the issuer. The Tribunal is not satisfied that these circumstances are compelling reasons not to apply the Schedule 3 criteria.
The applicant told the Tribunal the following: that his family in China consist of his parents and his younger sister. The sponsor has a good relationship with her parents and sister and brother in China. When the sponsor goes to China, she stays with her mother and at her sister’s place and also at his mother’s place. The sponsor cannot return to China to live, because her parents don’t know about his imprisonment. It would be awkward for her in front of her parents. He can’t return to China because many people eat dogs there, which he can’t accept. Since his dog training, dogs are like children to him. Should he see people eating dogs he doesn’t know what he would do?. The Tribunal accepts the following that: the applicant witnessing people eating dogs might be upsetting for him. The visa applicant’s history may cause the parties difficulties, should the parties decide to return to China. However the manner in which the parties manage their relationship with the sponsor’s parents is at their discretion and the sponsor is not required to leave Australia. The Tribunal is not satisfied that these circumstances are compelling reasons not to apply the Schedule 3 criteria.
The applicant also stated the following that: the sponsor contributed $7,000 toward the visa application and if he made an application offshore another fee would be required. He is a qualified dog trainer and the sponsor is a qualified pastry cook and these skills are in high demand in Australia. In March 2015, the parties bought an off-the-plan house and it was completed in May 2018. The sponsor lives in the house which is in her name, but it is a joint asset and they are paying off the mortgage. The sponsor has been employed full time for the last 10 years as a pastry chef and earns a good income. The parties have not had an opportunity to combine their finances as he went to jail shortly after the parties married. The sponsor has always managed the parties’ finances and paid the bills. The parties don’t have much savings because of the mortgage payments and legal fees. In December 2019, in a statutory declaration the sponsor stated that her income, along with savings and help from her parents is enough to support the parties. Although, the sponsor stated on 26 March 2020, that her employer ‘let her off work’, no further explanation has been given about what that means for the sponsor and no further information has been given about the current financial circumstances of the parties. The Tribunal accepts that the lodgement of a partner visa offshore would attract a visa application fee. The sponsor has been in full-time employment as a pastry chef and on the evidence earned a good income and has managed her financial commitments, including assisting the applicant financially while he was in jail and in detention. There is no evidence that the parties would be unable to pay a visa application fee. Ultimately, the sponsor is not required to depart Australia and there is no information about any difficulty in filling her role as a pastry chef, should she depart Australia or that the applicant’s services could not be filled by another person, should he depart Australia. The Tribunal is not satisfied that these circumstances are compelling reasons not to apply the Schedule 3 criteria.
On 17 January 2020, the applicant’s migration agent provided the Tribunal with a submission which included the following: information in support of the parties’ relationship; numerous pages of chat records, which are in a language other than English and cannot be read by the Tribunal; documents relating to telephone calls between the parties; photographic evidence depicting the parties together and with others at different locations and the applicant with dogs at different locations; copies of NSW Department of Corrective Services case notes recording the applicant’s good behaviour and involvement in various duties including dog training and strong work ethic. These note the applicant’s work in prison industries, his recommendation for inclusion in the Defence Community Dogs programmes, his educational achievements while he was in custody, that his behaviour is not of concern and that he conducted himself well on community visits and is spoken highly of as a prisoner. A case note dated September 2018, stated that the applicant’s last contact with his mother was on 17 November 2017, when custodial staff facilitated a telephone call to inform (his mother) of the applicant’s current situation and well-being. The migration agent stated the following: they concede that the applicant has a criminal record. However his offence was not violent or sexual in nature and fell into the mid-range of objective seriousness. Significant weight should be given to the applicant’s conduct and character since his offence. He was granted bail and in the community for three years without incident. He spent four years in custody and detention without breaches or sanctions and has been a model inmate and detainee. Case notes record him as being polite, respectful, courteous, compliant and willing to work hard beyond expectations, which is supported with third party statements. He plans to transfer his skills to community volunteer work with rescue dogs and injured wildlife from the bushfires. He is at low risk of re-offending. His offence was seven years ago and he now has an established life with property and his wife. He is rehabilitated and has no incentive to reoffend. Considerable weight should be given to granting the visa.
The Tribunal accepts the following: that the parties communicate with each other and have socialised together. On the information before the Tribunal, the applicant has not behaved adversely in jail and detention and made good use of his time. He became involved in dog training and was presented with various certificates to mark his achievements in that area which supports veterans. He has also attained bricklaying skills. He is considered by those who wrote the case notes and by third party declarants to be a person with a work ethic and an asset to the community. While the Tribunal accepts that the applicant’s offences were not sexual in nature, they were criminal offences attracting jail terms. On the evidence, the applicant has behaved well while he was incarcerated and the Tribunal congratulates him on his efforts, however, on balance, it is not satisfied that the information given about the applicant’s character are compelling reasons not to apply the Schedule 3 criteria.
Numerous third party statements have been provided and have been considered completely. These are summarised as follows: many declarants have known the visa applicant through the Defence Community Dog Program at the Bathurst Correctional Centre. This program involves taking rescue dogs and training them as companion helper dogs for returned servicemen who suffer from physical and mental trauma. The authors of the statements view the applicant as dedicated to his role and as a talented dog trainer who interacts well with the community. Others believe him to be of good character, polite and respectful. Several are concerned that his departing Australia would be detrimental to his family unit and would cause significant hardship. Many believe that the parties’ relationship is genuine and that the applicant would be a valuable member of the Australian community. Other statements are as follows.
Ms Teneka Priestly confirmed that she had known the applicant for two years in the capacity of a program dog training program, where dogs live with a trainer for six to 10 months before the dogs are placed with veterans suffering from post-traumatic stress disorder. She feels that the applicant’s dog handling skills will be missed. His leadership, mentoring abilities and dedication to the program is appreciated and he has graduated several dogs. He was expected to visit schools and nursing homes. In particular the applicant trained a particular dog in eight days and the veteran (who received the dog) continues to be grateful.
Ms Kylie Fogarty who was the applicant’s program overseer when he was in Bathurst Correctional Centre writes in a personal capacity. She stated that it is the first time in 15 years of supervising offenders’ she has felt compelled to give a reference for an inmate. For 20 months the applicant worked as a dog trainer for the Defence Community Dog Program. Training dogs requires a high level of commitment and she is impressed with the applicant’s high standard of work and personal ethics. During the applicant’s time in custody she has supported the sponsor who has visited the applicant regularly. Having observed the parties, it is evident to her that they have a loving and genuine and supportive marriage. She believes the applicant to be of good character who has completed every course and program available to him while he was in custody and that he would be an asset to the Australian community.
Ms Jessica Beck met the applicant in 2017, when she received a dog. She believes the applicant to be an advanced trainer and that him leaving Australia would cause the sponsor significant hardship. She believes the applicant’s good behaviour and the work he has done should be considered and he should be given a second chance. Brenden Hardie met the applicant in 2017, he stated the following: the applicant’s work training dogs shows his good character and his desire to help others. His deportation would be a mistake and would tear his family apart. The applicant has learned his lesson and it would be more than ‘likely that he would never offend again.’ He would benefit by staying with his family and be an asset to the community.
Ms Cecily Cater is not a personal friend of the applicant. She met him when he visited an aged care facility in 2016. She speaks of the good work the dog trainers do in assisting returned soldiers. She asks that the applicant remain in Australia and believes with his dog training skills he will become a worthy member of the Australian society. Damien Barrett has had several interactions with the applicant over 10 months through the dog training program. He has found the applicant to be polite, respectful and he has spoken of his family in high regard and of the remorse he feels for his actions. Another letter appears to be written on behalf of a dog and is addressed to a Mr Wilkie. It goes on to describe the experiences of an ex-serviceman and of the value of his dog companion. A letter from a previous employer describes the applicant as punctual, hard-working and trustworthy and they state that they would employ the applicant. Another statement tells of the applicant attending church and assisting in the church. All declarants believe that the applicant is honest and reliable and respectful. Other documents relate to certificates presented to the applicant for his involvement in the Defence Community Dogs Program.
In a post Tribunal hearing submission the applicant’s migration agent stated the following: they concede the following: the applicant’s immigration (history) does him no credit. In the past the applicant has received non-compliance notices and failed to engage with the Department to regularise his status when he became unlawful. However this took place over 10 years ago in 2009. The applicant has rehabilitated. Since being charged for criminal offences the applicant has taken all steps to change his ways including regulating his immigration status. He was unaware that the criminal justice visa was cancelled but acted quickly to lodge the partner visa application as soon as he was notified of the decision. The applicant has had no breaches or incidents in jail or detention. He has always been a model detainee and inmate. Reference is made to another Member of the Tribunal stating that ‘the Tribunal accepts that the applicant has made good use of his time in prison and was involved in programs such as Defence Community Dogs Programme, has been out on day release to nursing homes and has been engaged with members of the community without incident’. The migration agent continued and stated the following: ‘the applicant obtained skills to help Australian Veterans suffering from PTSD by training support dogs. He has trained dogs that have helped change the lives of veterans’ and continued to have relationships with the veterans’.

Witnesses at the Tribunal hearing gave evidence about the genuine nature of the parties’ relationship and of them wanting to have a child. One witness gave evidence of the sponsor being lonely and of needing the applicant to be with her. These matters have been discussed in this decision.
The Tribunal considered the full content of all of the third party statements and the oral evidence given by witnesses at the Tribunal hearing and the achievements of the applicant and the migration agent’s submission. It accepts the following: that that the applicant has not been involved in any incidents while incarcerated. He involved himself in various educational and training opportunities while in prison. He visited nursing homes on day release without incidents. The opinions of third party statements and witnesses are genuinely felt and given. The applicant’s achievements and the thoughts and views expressed in the case notes and given by authors of third party statements and witnesses and the regard they hold the applicant in, does not allay the Tribunal’s serious concerns about the applicant’s immigration history in Australia including him, being an unlawful non-citizen, making false claims in the protection visa application and of him being convicted of criminal offenses and being on strict bail conditions. The Tribunal is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.
The Tribunal respects the previous decisions of the Tribunal; however, it feels it inappropriate to comment on those decisions. The Tribunal is not bound by Tribunal decisions or Departmental policy. It is guided by court determinations and is not precluded in any way in considering Tribunal decisions and policy currently in force. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed in this decision record.
In a statutory declaration dated 26 March 2020, the sponsor summarised the applicant’s history in Australia. This is already recorded in this decision and she stated the following: the applicant has been in Australia for half of his life and she is an Australian citizen. She would normally visit the applicant almost daily. However as a result of COVID-19 VIDC ceased visits. There are hundreds of detainees in VIDC and the risk of infection is high as there is no guarantee of social distancing and she is concerned for the applicant’s safety. The applicant is skilled and if released he will benefit the Australian community. He can live with the sponsor and she will do everything to support him and he will support her. The applicant has not had any incidents and is a changed man and will never re-offend. He has family with the sponsor and wants a bright future with her. As a result of COVID-19 her employer has ‘let her off work’ and she is home alone. She is lonely, helpless, worried and afraid and doesn’t know where the joy of life is. Her only hope is that the applicant comes home to be with her.
The Tribunal understands that as a result of COVID-19 pandemic, these are challenging and difficult times for the Australian community and the sponsor and that it introduces a heightened level of concern and anguish. It sympathises with the sponsor and her circumstances and the restrictions on her visiting the applicant and her concerns about the applicant’s welfare. The Tribunal understands that detainees in VIDC are provided with appropriate food, medical, recreational and other support services, including mental health services and receive health care broadly comparable to those available in the Australian community.[1] It also understands that procedures are in place as follows:
‘As the COVID-19 situation continues to evolve in Australia and around the world the Australian Border Force (ABF) continues to put in place measures in Detention Facilities in line with advice from the Department of Health and the broader Commonwealth response.
As community transmission of COVID-19 increases within Australia the key focus of the ABF is preventing the entry of COVID-19 to facilities. It is for this reason that the ABF will be ceasing its visitor program with effect Tuesday 24 March 2020. These measures are NOT permanent and are continually being reviewed.
The changes are consistent with those being implemented more broadly across the community and are considered temporary and implemented as a direct response to the COVID-19 situation.’[2]
[1] >
The Tribunal encourages the sponsor to care for herself by seeking the assistance of her health care professionals to help her through any times off work and times of feeling lonely, helpless, worried and afraid and to assist her balance her health. The Tribunal understands that it is the sponsor’s preferred position that the applicant be released from detention and for him to be with her at home. It understands that the applicant may have skills that would benefit the community. However, the Tribunal balanced these circumstances against the applicant’s history in Australia and his total disregard for the law of Australia and is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.
The Tribunal considered the evidence in this decision record individually and collectively about the applicant having matured and about the hardship the parties’ may experience if the applicant departs Australia. The Tribunal accepts that the applicant may have matured. It considers it reasonable to expect a level of hardship to be experienced if partners are separated from one another for any extended period of time. This is a particularly common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian partner (or eligible person). However, there is no reason that the parties cannot continue to support each other, even if they are separated for a time. It is not unusual for couples to live separately for a period of time and that should not preclude them supporting each other. Although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, after considering the evidence entirely, up to the to the time of decision and even accepting that the applicant may have matured, the parties have not satisfied the Tribunal that their separation is a compelling reasons not to apply the Schedule 3 criteria in this case.
Other considerations
The applicant’s migration agent attended the Tribunal hearing. She told the Tribunal that she had been the applicant’s migration agent since the matter was remitted to the Tribunal (18 March 2019). She provided the Tribunal with an ‘Advice by a migration agent’ Form 956 dated 29 November 2019, recording her details. As the Tribunal had not been notified of the migration agent’s appointment, it request that the relevant form be completed. The migration agent completed the relevant form at the Tribunal hearing and this is dated 20 January 2020.
The applicant’s migration agent in a submission stated the following: the issue before the Tribunal is whether the applicant is the spouse of the sponsor, and this was not assessed in the primary decision. She refers to Public Interest 4001 and consideration against the applicant’s character. For the purpose of this decision, the Tribunal accepts the parties’ relationship at face value. It has not considered the parties relationship against s.5F of the Act or given consideration against r.1.15A of the Migration Regulations. Although the Tribunal had requested information to support that the parties are in a spousal relationship, the issue before the Tribunal and as detailed in the primary decision record is whether the applicant meets the criterion in Schedule 3. The Tribunal has not gone onto consider the parties’ relationship.
At the end of the Tribunal hearing, the applicant’s migration agent requested additional time to provide further information. As the migration agent, on her information, has been representing the applicant since March 2019 and provided the Tribunal with a submission of over 700 pages at 5:30 pm on the Friday prior to the Tribunal hearing and there were no s.359AA matters for consideration, the Tribunal was surprised by this request. However, it provided the applicant additional time to submit further information. The migration agent provided the Tribunal with a large post hearing submission and duplicated that submission to the Tribunal.
This decision record is a synopsis of all the evidence before the Tribunal. The Tribunal considered all of the evidence individually, collectively and as a whole up to the time of decision. For the above reasons, the applicant does not satisfy criterion 3004.
The Tribunal having considered all of the evidence individually, collectively and as a whole and overall, 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) of Schedule 2 to the Regulations.
There is no evidence that the applicant satisfies any of the other criteria for the grant of the visa.
As the applicant does not satisfy criterion for the grant of the visa, it has not gone on to consider the remainder of the criteria for the grant of the visa.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Helena Claringbold
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.

[2020] AATA 2466

1 April 2020

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Immigration

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