Li (Migration)

[2019] AATA 3617

Li (Migration) [2019] AATA 3617 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yanjun Li

CASE NUMBER:  1731348

HOME AFFAIRS REFERENCE(S):           BCC2017/1552847

MEMBER:Grant Chapman

DATE:1 July 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 01 July 2019 at 1:02am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – no compelling reasons for not applying Schedule 3 criteria – visa application not made within 28 days of relevant day – not holder of substantive visa at time of application – family conflict – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211, Schedule 3, Criteria 3001, 3003, 3004

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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, Yanjun Li, applied for the visa on 30 April 2017 on the basis of her relationship with her sponsor, Mohammad Masoud Adibi Garakani. 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 she was unable to satisfy Schedule 3 criteria 3001 or satisfy the delegate that there were compelling reasons for not applying those criteria.

4. The applicant appeared before the Tribunal on 27 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mohammad Masoud Adibi Garakani, who is the applicant's sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the Schedule 3 criteria 3001, 3003 and 3004 and if not whether there are compelling reasons for not applying these criteria.

   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 ‘relevant day’ for the applicant is the last day on which she held a substantive visa. At the Tribunal Hearing, the applicant accepted that her last substantive visa ceased on 28 February 2017, as shown in departmental records. This was a student visa which was cancelled because she did not comply with her visa conditions, having ceased study in April 2016. Her application for the Partner (Temporary) (Class UK) (Subclass 820) was made on 30 April 2017.

11. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001, which is the relevant Schedule 3 criterion.

    Compelling reasons

12. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criterion, it is required to consider whether there are compelling reasons for not applying the criterion

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.

14. At the Tribunal Hearing, the applicant and sponsor separately gave substantial evidence concerning the nature of the relationship. However, it was only when pressed by the Tribunal in the latter part of the Hearing that they addressed the issue of compelling reasons.

15. The applicant told the Tribunal Hearing that she and the sponsor had consulted a migration agent, after she ceased to study, who advised that they could apply for a spouse visa. When the Department cancelled her student visa she intended to return to China, subsequently to be joined there by the sponsor and to lodge an offshore spouse visa application.

16. She told the Tribunal Hearing that, on 23 April 2017, she was in transit at Melbourne Airport, en route flying from Adelaide to China, having departed Adelaide Airport on a 7:00 AM flight, to comply with the above intent. While at Melbourne Airport, waiting for the connecting flight to China, she received an angry telephone call from her father, who is not financially well off, saying that he had spent a substantial amount of money sending her overseas to study, it was her fault that her visa had been cancelled, that she should stay in Australia with her husband (the sponsor) and that he would be very angry if she returned to China having failed to complete her education, for which he had paid.

17. The applicant said that she had then telephoned the sponsor and conveyed to him the details of her telephone conversation with her father. She said that the sponsor had asked whether the nature of her father’s anger was such that he might behave violently towards her if she returned to China. She had told the sponsor that it was a possibility. The sponsor had then asserted that she must remain in Australia. He told her that, notwithstanding the cancellation of her student visa, in these circumstances, they could apply for the spouse visa onshore because her father’s anger would provide compelling circumstances for an onshore application to be successful.

18. This evidence given by the applicant is consistent with the content of an email sent to the Department on the evening of 23 April 2017. In that email she confirms the intention of her and the sponsor to apply for a partner visa offshore after she and the sponsor had returned to China and potentially lived there for several years before applying for the visa. That email says that her mother was aware of this situation but her father was not aware because her mother is a doctor working in the local hospital, while her father spends each week some distance away from home because of his work. They spend weekends together and her mother had not had the opportunity to share the applicant’s plans with her father.

19. In that email the applicant states further that “I have no intention to stay here illegally and am happy to leave within two to three days once I get a response from this letter” and later says “once I have response I can either leave Australia or come back to Adelaide” (from Melbourne). When questioned on this at the Tribunal Hearing, the applicant indicated that this was a reference to the potential outcome of an application for an onshore spouse visa. The Tribunal notes that this email refers to the sponsor as having applied for a Partner visa but that at the Hearing the applicant acknowledged that this was a mistake and that the application, in fact, was not lodged until 30 April 2017.

20. At the Hearing, the Tribunal asked the applicant why, given these statements, she had lodged an appeal with the Tribunal when the Department refused her onshore visa application because it determined that compelling circumstances did not exist for not applying the Schedule 3 criteria. In particular, the Tribunal asked about her father’s current attitude to her relationship with the sponsor and to her returning to China. She said that he was no longer angry and accepted the relationship.

21. The Tribunal understands the initial anger of the applicant’s father regarding her visa situation, given his financial commitment to her studies and the failure of the applicant or her mother to advise him of her changed situation, the nature of her relationship and the intent of her and the sponsor to return to China. It notes her comment in her 23 April 2017 email, describing her conversation with her sponsor regarding the “possibility” that her father may react violently towards her when she arrived in China if she continued her journey on that day. It finds that such a situation being only a “possibility” and quite likely avoidable on arrival, was not sufficiently powerful as a compelling reason at the time of her onshore visa application for not applying the Schedule 3 criteria.

22. More significantly, the Tribunal notes the acknowledgement by the applicant and sponsor that the anger of the applicant’s father has subsequently subsided, that he accepts the relationship and that it was the original intent of both the applicant and sponsor to return to China and probably spend several years there prior to lodging an offshore Partner visa application.

23. The Tribunal then asked the applicant and sponsor whether, currently, there were any other compelling reasons for not applying the Schedule 3 criteria. They said that the sponsor had accumulated substantial gambling debts to friends of approximately $200,000, which he needed to repay and this would prevent him from joining the applicant in China. Asked how he had fallen into such a high level of indebtedness, the sponsor acknowledged that he had a gambling problem and had not done anything to attempt to overcome it. He said that previously he had won $100,000 at the Adelaide Casino and paid off previous gambling debts but had borrowed again and continued gambling. When asked by the Tribunal how he intended to repay this debt, he said that he had a forthcoming job interview, currently he and his wife were meeting their living expenses from Centrelink payments, supplemented by support from the applicant’s parents, who are not aware of the gambling debt situation.

24. When questioned by the Tribunal as to what she and the sponsor would do in the event that the Tribunal affirmed the Department’s decision regarding compelling reasons, the applicant said that the sponsor would come to China for a year and would travel to other countries, including visiting his family in Iran. The Tribunal finds that this is inconsistent with the claim by the sponsor that is indebtedness would prevent him from joining the applicant in China.

25. Irrespective of whether or not these circumstances prevent the sponsor from joining the applicant in China, the Tribunal finds that what could be quite reasonably described as the inconvenience of potential separation caused by self-inflicted gambling debts are not sufficiently powerful as a compelling reason for not applying the Schedule 3 criteria.

26. Therefore, 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).

27. The Tribunal has considered the alternative criteria in cl.820.211(5) – (9) and finds that they are not applicable to the applicant.

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

    DECISION

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

    Grant Chapman
    Senior 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.