Li v Minister for Immigration
[2007] FMCA 80
•14 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 80 |
| MIGRATION – Review of Migration Review Tribunal decision – failure to meet the test for spouse visa – no reviewable error – application dismissed. |
| Migration Act 1958 |
| Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204 Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 |
| Applicant: | MENG LI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1693 of 2005 |
| Judgment of: | Turner FM |
| Hearing date: | 19 December 2006 |
| Date of Last Submission: | 19 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Applicant: | MS. R. Zhi of Ren Zhou Lawyers |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Ms K. McNamara of Phillips Fox |
ORDERS
The application and amended application be dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1693 of 2005
| MENG LI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 30 June 2005 seeking to review a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Partner (Temporary) (Class UK) visa, and a Partner (Residence) (Class BS) visa. The applicant filed an amended application on 29 November 2006.
The applicant was born on 26 July 1981 and is a citizen of the People’s Republic of China (“PRC”).
The applicant was married to his wife Nan Hu on 30 August 2003 in Sydney Australia. Ms Hu was born on 23 March 1981 and is also a citizen of PRC. She arrived in Australia on 24 November 2002, and was granted a visa as a dependent child of her father, who had been granted a Provisional Spouse visa. Ms Hu was granted permanent residency in Australia on 23 January 2003 (Court Book (“CB”) 221).
The applicant first arrived in Australia on 28 March 1999 on a student visa. He subsequently travelled to and from Australia on a number of occasions. The applicant’s travel and visa application history was set out in the Tribunal decision as follows:
The visa applicant’s movement records indicate he first arrived in Australia on 28 March 1999 on a Subclass 560 (Student) visa. The visa applicant travelled overseas 4 times as the holder of this visa from 3 September to 13 October 1999, from 5 December 2000 to 10 January 2001, from 9 June to 10 July 2001 and from 6 December 2001 to 1 January 2002. On 15 March 2002 the visa applicant’s Student visa expired. He lodged an application for a Subclass 573 (Higher Education Sector) visa on 28 March 2002 and was granted a Subclass 030 (Bridging C) visa. The student visa application was refused by the Department on 17 October 2002 and the visa applicant subsequently lodged an application for review by the Tribunal. The visa applicant then travelled overseas from 16 January 2003 to 12 February 2003 as the holder of a Subclass 020 (Bridging B) visa. The Tribunal (differently constituted) affirmed the Department’s decision on 25 June 2003. On 8 August 2003 the visa applicant wrote to the Minister, seeking Ministerial intervention pursuant to section 351 of the Act. The Minister decided not to consider using her powers to intervene on 11 September 2003 (CB 221).
The applicant’s Bridging visa expired on 1 August 2003, at which time the applicant was considered to be in Australia unlawfully, until he lodged another visa application on 5 September 2003. On 4 March 2004, this application was refused by a delegate of the first respondent. The applicant filed a review from that decision on 1 April 2004.
The applicant was invited to appear before the Tribunal at the hearing on 18 January 2005, which he subsequently attended with Ms Hu.
On 30 May 2005 the Tribunal handed down its decision, affirming the decision of the Minister’s delegate refusing to grant the applicant a visa. In considering the applicant’s claims, the Tribunal was not satisfied that the applicant and Ms Hu met the legislative requirements which must be met in order for such a visa to be granted. Ultimately the Tribunal found that:
At the time the visa application was lodged, Class UK contained the following subclasses: Subclass 820 (Spouse), and Subclass 826 (Interdependency). The only subclass in respect of which any claims have been advanced is Subclass 820. There is no evidence to suggest that the visa applicant meets key criteria for the other subclass (CB 225)…
In order to succeed in an application for a visa under the Regulations, it is necessary for the visa applicant to satisfy all the of the criteria for the granting of a visa. To meet the requirements of a subclass 820 visa, an applicant must satisfy, among others, the criteria set out in clause 820.211 at the time of application. Subclause 820.211(i) requires that;
(1) The applicant:
(a) is not the holder of a Subclause 771 (Transit) visa; and
(b)meets the minimum requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9) (CB 226).
The issue to be determined is whether the visa applicant meets subclause 820.211 (2) which relevantly reads;
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse of a person who:
(i) is an Australian citizen; and
(ii)
(b)…………………………………….
(c) the applicant is sponsored:
(i) if the applicant’s spouse has turned 18 – by the spouse;
(ii) ………………and
(d)in the case of an applicant who is not the holder of a substantive visa – either:
(i)………………
(ii)the applicant satisfies Schedule 3 criteria 3001, 3003, and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria (CB 226).
Regulation 1.15A of the Regulations specifies that a spouse relationship may be either a de facto or a married relationship and requires a decision-maker to be satisfied that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing, and that the visa applicant and the review applicant live together, or do not live separately and apart on a permanent basis.
In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A (3) sets out mandatory considerations. The criteria require that the spouse relationship existed at the time of the visa application and continues to exist at the time of the decision (CB 227).
Regulation 1.15A (3)(a) deals with the financial aspects of the relationship. There is no joint ownership of real estate or other major assets, or joint liabilities. There are no major financial commitments or any legal obligations between each other. The parties stated that only the sponsor works and earns $80 per week to pay the rent and they live off the proceeds of monies sent by the visa applicant’s parents who reside in China. The visa applicant does not work. The visa applicant states that he is unable to work. If I give the visa applicant the benefit of the doubt and accept that the visa applicant’s parents sent him $10 000 for the wedding, the evidence is $6 500 remained after the wedding party. Accepting that his parents sent $2000 on 2 occasions, therefore the visa applicant’s evidence is that the couple had an amount of $10 500 for living expenses over a period of 17 months. Whilst the couple claim the sponsor works for $80 per week and that this is used for the rent, the evidence is that this employment was recent. When put to the visa applicant that this was not sufficient to live off, the couple claimed that the visa applicant borrows money from friends to assist their lifestyle. The evidence before me, by the couple, is that they do not have any friends as a couple and the visa applicant only has one friend that comes to the house to visit. I am therefore not satisfied that the couple have revealed to my satisfaction their source of income or their financial arrangements or commitments. I am not satisfied they meet Regulation 1.15A (3)(a) (CB 227).
Regulation 1.15A (3)(b) focuses on the nature of the household. The couple claim that the visa applicant does not work and they live in a shared house with the sponsor’s father, sister, and at least one other tenant. The visa applicant claims he remains at home and cooks breakfast whilst his wife and sister cook lunch and dinner. The visa applicant and the sponsor and her family assist in the shopping and the visa applicant claims he cleans their room (CB 227).
Regulation 1.15A (3)(c) looks at the social aspects of the relationship. Other than the persons who reside in the rented house with the parties, the couple do not go out much and do not socialise with other persons outside the home, by choice. The couple’s interests are focussed around the home and their interest in reading, the sponsor’s family, the internet, and walking in the park (CB 227).
Regulation 1.15A (3)(d) looks at the nature of the parties commitment to each other. The parties attest their ongoing commitment to each other (CB 227).
I am not satisfied that this couple meet Regulation 1.15A (3)(a). Regulation 1.15A (5) provides that living together at the same address for 6 months or longer is strong evidence that a relationship is genuine and continuing. As the totality of the evidence does not support the claimed marital relationship I therefore find that 1.15A (5) does not outweigh my findings in regard to Regulation 1.15A (3). I am therefore satisfied that the couple does not meet paragraph 820.211 (2)(a).
Furthermore, as the visa applicant did not hold a substantive visa at the time of application, the visa applicant must meet paragraph 820.211 (2)(d) (CB 227).
A ‘substantive visa’ is defined in Section 5 of the Act as a visa other than a ‘bridging visa’, a ‘criminal justice’ visa, or an ‘enforcement visa’. The visa applicant’s records indicate that his last substantive visa, a student visa, expired on 15 March 2002 and he was unlawful when he lodged the application for his spouse visa.
Sub-paragraph 820.211 (2)(d) (ii), requires the visa applicant to satisfy criteria 3001, 3003 and 3004, unless there are compelling reasons not to apply those criteria.
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 clause 3002, the relevant day, in relation to the applicant, is:
(a)………….or
(b)………….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.
The visa applicant’s substantive visa expired on 15 March 2002. As the visa applicant applied for the spouse visa on 5 September 2003, outside the 28 day time period allowed by sub-clause 3001(1), I find the visa applicant does not meet criterion 3001.
Paragraph 820.211(2)(d)(ii) requires that criteria 3001, 3002, 3003, and 3004 must all be met. As the visa applicant does not satisfy criterion 3001, it is not necessary to consider whether the visa applicant satisfies other schedule criteria.
Subclause 820.211(d) was inserted by Statutory Rule 75 of 1996 and commenced operation on 1 August 1996. The explanatory memorandum to Statutory Rule 75 of 1996 states:
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as…where there are Australian-citizen children from the relationship, or the relationship is a genuine and ongoing one has been in existence for two years or more at the time of the application.
The term compelling is not defined in the legislation. According to the Macquarie Dictionary “compelling” means “to force or drive, especially to a course of action”. Policy gives the following advice:
This “compelling circumstances” clause was inserted to allow certain persons unlawfully in Australia but in long-standing spouse relationships with Australian residents to legalise their status if compelling reasons exist.
In assessing whether there are compelling reasons, officers are to take into account the circumstances which the Minister considers to be compelling. These circumstances are that:
·there are Australian-citizen children from the relationship; or
·the applicant and their sponsor are already in a long standing spouse relationship (taken to be a relationship which has existed for at least two years)
In these circumstances, it is considered that the hardship which could result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.
This does not mean that only those cases with such circumstance should benefit from the waiver; it would be an error of law to apply policy inflexibly.
The applicant and their sponsor should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria. Officers are, of course, required under s.54 of the Act to have regard to all information in the application.
However, it is the policy intention that an assessment of the relationship between an applicant and their sponsor is as genuine would not, in the absence of the factor/s described above, be sufficiently compelling to justify not applying the Schedule 3 criteria.
In Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204, Branson J considered the meaning of “compelling reasons” in the context of another provision of the Act. Her Honour held that compelling reasons must involve something in addition to the basic pre-requisite criteria for the grant of the visa. In Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 Wilcox J held that the issue of whether there are compelling reasons for not applying the schedule 3 criteria is to be considered at the time of visa application.
The visa applicant and sponsor initially claimed they have been in a spousal relationship since 1999 and that they therefore meet the policy requirements for compelling reasons. The visa applicant further claims that, at the time of application, he had to lodge the application for a spouse visa on shore as he had to remain in Australia to await the outcome of his request for Ministerial intervention.
Clause 820.211(2)(d)(ii) is clearly framed as an exception. The term ‘compelling’ is not defined in the legislation. According to the Macquarie Dictionary, ‘compelling’ means to ‘to force or drive, especially to a course of action’. I have had regard to Departmental policy (PAM3:Schedule 2 - Spouse - Visa 820). There is no child of the relationship. There is no claim of domestic violence. Witnesses Gui Fen Hu and Ling Hu attest to a spousal relationship commencing on or about August 2003. Changrong Wang attests that in December 1998 the relationship between the sponsor and the visa applicant was one of girl friend and boy friend and that in November 2002 he met the couple who appeared ‘happy and romantic together, like a married couple’ (CB 228-229).
On balance, I am not satisfied that the visa applicant and the sponsor were in a long standing relationship at the time of application on 5 September 2003 as I am not satisfied their relationship had existed from about September 2001. There are no children of the relationship. Therefore I am not satisfied there are compelling circumstances. I find the visa applicant does not meet the requirements of Clause 820.211(2)(d)(ii).
As the visa applicant does not meet clauses 820.211(2)(a) or 821.211(d) the visa applicant does not meet the criteria set out in clause 820.211 at the time of the application or at the time of the decision. I affirm the decision under review.
The applicant does not meet the essential criteria for the grant of a Class UK visa. It follows that as the visa applicant does not meet essential criteria for a Class UK visa, the applicant does not meet the criteria for a Class BS visa.
The Tribunal affirms the decision under review, finding that the applicant is not entitled to the grant of a Partner (Temporary) (Class UK) visa, nor a Partner (Residence) (Class BS) visa.
The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out two grounds as follows:
1.The MRT failed to identify the compelling nature of the review and therefore failed to correctly exercise its discretionary power under Reg 820.211(2)(d)(ii). Such failure amounts to jurisdictional error.
2.The decision is otherwise against the rules of natural justice.
In his amended application the applicant set out the following grounds:
1.The Tribunal failed to consider all the relevant circumstances of the applicant and / or applied the policy of the first respondent inflexibly in its assessment of the “compelling circumstances” under Schedule 3 of the regulations.
Particulars:
The Tribunal erred in not taking into account all the relevant information:
(i)the information relating to the relationship that existed between the Applicant and the sponsor from 1998;
(ii)the physical manifestation of the relationship between the Applicant and the sponsor (paragraph 3 of Hu affidavit that she was upset in 1999 when Li left for abroad) [at RD 37.5];
(iii)the fidelity between the Applicant and the sponsor;
(iv)the commitment of the Applicant and the sponsor to each other;
(v)the cultural aspects and the parents’ reluctance to let the young couple live together before the completion of certain level of education and before formal marriage;
(vi)the effect on and the psychological impact upon the sponsor of the separation of the applicant and sponsor in consequence of the decision.
2.The Tribunal misapprehended and/or mischaracterised the relationship between the applicant and the sponsor in failing to take into account all the circumstances and all aspects of the relationship thus erring under Regulation 1.15A(3) of the Regulations. The Tribunal applied the regulations rigidly and not in accordance with “common sense and practical” approach espoused by Allsop J in Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14].
Particulars:
The Tribunal failed to take into account all the relevant information in determining the relationship. The Applicant repeats particulars to paragraph 1 of the Grounds herein.
As to Regulation 1.15A(3)(a), the Tribunal failed to take into account of all of the circumstances and the communal nature of the household and failed to address the input of other members of the household into the day to day living expenses of the Applicant and the visa sponsor. The Tribunal misapplied the test in the manner that is attuned to nuclear family and not the circumstances of the Applicant and the sponsor. The Tribunal failed to take into account the flexibility of the expenditure in this specific household thus misapplying the test. Otherwise the test as to whether joint asset ownership and other financial aspect, the Applicant submits that the test has been misapplied in the light of the background of the Applicant and the sponsor in being students and of relatively young age.
Findings of the Tribunal
The only subclass in respect of which any claims have been advanced is Subclass 820 (CB 225).
To meet the requirements of a subclass 820 visa, an applicant must satisfy, among others, the criteria set out in clause 820.211 at the time of the application. Subclause 820.211 requires that;
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b)meets the minimum requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9)
The Court finds that to be correct.
At the time of application the visa applicant was not the holder of a Subclass 771 visa and does not meet the requirements of subclauses 820.211 (3), (4), (5), (6), (7), (8) or (9). There is no evidence, nor any claims made, to indicate the visa applicant meets these subclauses.
The Court finds that those findings were properly open to the Tribunal on the evidence before it.
The issue to be determined is whether the visa applicant meets subclass 820.211 (2) which relevantly reads;
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse of a person who:
(i) is an Australian citizen; and
(ii)
(b)…………………………………….
(c) the applicant is sponsored:
(i) if the applicant’s spouse has turned 18 – by the spouse;
(ii) ………………..and
(d)in the case of an applicant who is not the holder of a substantive visa – either:
(i)………………
(ii) the applicant satisfies Schedule 3 criteria 3001, 3003, and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria (CB 226).
The Court finds that to be correct.
In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A (3) sets out mandatory considerations. The criteria require that the spouse relationship existed at the time of the visa application and continues to exist at the time of the decision.
The Court finds that the requirements of R1.15A(3) are mandatory, that is, the Tribunal must have regard to the factors set out in determining whether the applicant and sponsor were in a spouse relationship. They are not mandatory in the sense that a failure to comply with one of them mean that R1.15A has not been complied with.
Regulation 1.15A(3)(a) deals with the financial aspects of the relationship. There is no joint ownership of real estate or other major assets, or joint liabilities. There are no major financial commitments or any legal obligations between each other. The parties stated that only the sponsor works and earns $80 per week to pay the rent and they live off the proceeds of monies sent by the visa applicant’s parents who reside in China. The visa applicant does not work. The visa applicant states that he is unable to work. If I give the visa applicant the benefit of the doubt and accept that the visa applicant’s parents $10 000 for the wedding, the evidence is $6 500 remained after the wedding party. Accepting that his parents sent $2000 on 2 occasions, therefore the visa applicant’s evidence is that the couple had an amount of $10 500 for living expenses over a period of 17 months. Whilst the couple claim the sponsor works for $80 per week and that this is used for the rent, the evidence is that this employment was recent. When put to the visa applicant that this was not sufficient to live off, the couple claimed that the visa applicant borrows money from friends to assist their lifestyle. The evidence before me, by the couple, is that they do not have any friends and as a couple and the visa applicant only has one friend that comes to the house to visit. I am therefore not satisfied that the couple have revealed to my satisfaction their source of income or their financial arrangements or commitments. I am not satisfied they meet Regulation 1.15A(3) (a) (CB 227).
The Court finds that on the evidence it was properly open to the Tribunal to conclude that R.1.15A (3)(a) was not met.
Regulation 1.15(3)(b) focuses on the nature of the household. The couple claim that the visa applicant does not work and they live in a shared house with the sponsor’s father, sister, and at least one other tenant. The visa applicant claims he remains at home cooks breakfast while his wife and sister cook lunch and dinner. The visa applicant and the sponsor and her family assist in the shopping and the visa applicant claims he cleans their room (CB 227).
The Court observes that this demonstrates that the Tribunal had regard to this factor.
Regulation 1.15(3)(c) looks at the social aspects of the relationship. Other than the persons who reside in the rented house with the parties, the couple do not go out much and do not socialise with other persons outside the home, by choice. The couple’s interests are focussed around the home and their interest in reading, the sponsor’s family, the internet, and walking in the park (CB 227).
The Court observes that this demonstrates that the Tribunal had regard to this factor.
Regulation 1.15(3)(d) looks at the nature of the parties commitment to each other. The parties attest their ongoing commitment to each other (CB 227).
The Court observes that this demonstrates that the Tribunal had regard to this factor.
I am not satisfied that this couple meet Regulation 1.15A (3)(a). Regulation 1.15A (5) provides that living together at the same address for 6 months or longer is strong evidence that a relationship is genuine and continuing. As the totality of the evidence does not support the claimed marital relationship I therefore find that 1.15A (5) does not outweigh my findings in regard to Regulation 1.15A (3). I am therefore satisfied that the couple does not meet paragraph 820.211 (2)(a) (CB 227).
Living together at the same address is to be taken as “strong evidence” that the relationship is genuine and continuing (Regulation 1.15A(5)), but the Court finds that it was properly open to the Tribunal member to conclude that the totality of evidence does not support the claimed marital relationship, and that R1.15A(5) does not outweigh the Tribunal’s findings in regard to R1.15A(3). The Tribunal made no error of law in reaching that conclusion. However, the Court does not agree that because of that conclusion the applicant fails to meet paragraph 820.211(2)(a). It is not mandatory to fulfil all the requirements of Regulation 1.15A to be in a spouse relationship. Those factors are mandatory in the sense that the Tribunal member must have regard to them in forming an opinion whether two persons are in a spouse relationship. Not satisfying 1.15A(3)(a) does not mean that they are not in a spouse relationship. Insofar as the Tribunal has used this failure to satisfy 1.15A (3)(a) as the reason to find that the applicant and sponsor do not meet paragraph 820.211(2)(a), that is an error of law. However there are other reasons why the applicant does not meet paragraph 820.21. The criteria to be satisfied at the time of application have not been met and the applicant is not entitled to a Subclass 820 visa (see paragraph 24 post).
The Tribunal continued:
Furthermore, as the visa applicant did not hold a substantive visa at the time of application, the visa applicant must meet paragraph 820.211 (2)(d) (CB 227).
A ‘substantive visa’ is defined in Section 5 of the Act as a visa other than a ‘bridging visa’, a ‘criminal justice’ visa, or an ‘enforcement visa’. The visa applicant’s records indicate that his last substantive visa, a student visa, expired on 15 March 2002 and he was unlawful when he lodged the application for his spouse visa.
Sub-paragraph 820.211 (2)(d) (ii), requires the visa applicant to satisfy criteria 3001, 3003 and 3004, unless there are compelling reasons not to apply those criteria.
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 clause 3002, the relevant day, in relation to the applicant, is:
(a)………….or
(b)………….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.
The visa applicant’s substantive visa expired on 15 March 2002. As the visa applicant applied for the spouse visa on 5 September 2003, outside the 28 day time period allowed by sub-clause 3001(1), I find the visa applicant does not meet criterion 3001.
The Court finds that no error of law was made in relation to those findings.
Paragraph 820.211(2)(d)(ii) requires that criteria 3001, 3002, 3003, and 3004 must all be met. As the visa applicant does not satisfy criterion 3001, it is not necessary to consider whether the visa applicant satisfies other schedule criteria.
The Court finds that to be a correct statement of the law.
Subclause 820.211(d) was inserted by Statutory Rule 75 of 1996 and commenced operation on 1 August 1996. The explanatory memorandum to Statutory Rule 75 of 1996 states:
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as…where there are Australian-citizen children from the relationship, or the relationship is a genuine and ongoing one has been in existence for two years or more at the time of the application.
The term compelling is not defined in the legislation. According to the Macquarie Dictionary “compelling” means “to force or drive, especially a course of action”. Policy gives the following advice:
This “compelling circumstances” clause was inserted to allow certain persons unlawfully in Australia but in long-standing spouse relationships with Australian residents to legalise their status if compelling reasons exist.
In assessing whether there are compelling reasons, officers are to take into account the circumstances which the Minister considers to be compelling. These circumstances are that:
That there are Australian-citizen children from the relationship; or
The applicant and their sponsor are already in a long standing spouse relationship (taken to be a relationship which has existed for at least two years)
In these circumstances, it is considered that the hardship which would result in applying the Schedule 3 criteria is sufficiently compelling to justify not applying the criteria.
This does not mean that only those cases with such circumstance should benefit from the waiver; it would be an error of law to apply policy inflexibly.
The applicant and their sponsor should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria. Officers are, of course, required under s.54 of the Act to have regard to all information in the application.
However, it is the policy intention that an assessment of the relationship between an applicant and their sponsor is as genuine would not, in the absence of the factor/s described above, be sufficiently compelling to justify not applying the Schedule 3 criteria.
In Dunne, supra, Branson J considered the meaning of “compelling reasons” in the context of another provision of the Act. Her Honour held that compelling reasons must involve something in addition to the basic pre-requisite criteria for the grant of the visa. In Boakye-Danquah Wilcox J held that the issue of whether there are compelling reasons for not applying the schedule 3 criteria is to be considered at the time of the visa application.
The visa applicant and sponsor initially claimed they have been in a spousal relationship since 1999 and that they therefore meet the policy requirements for compelling reasons. The visa applicant further claims that, at the time of application, he had to lodge the application for a spouse visa on shore as he had to remain in Australia to await the outcome of his request for Ministerial intervention.
Clause 820.211(2)(d)(ii) is clearly framed as an exception. The term ‘compelling’ is not defined in the legislation. According to the Macquarie Dictionary, ‘compelling’ means to ‘to force or drive, especially to a course of action’. I have had regard to Departmental policy (PAM3:Schedule 2 - Spouse - Visa 820). There is no child of the relationship. There is no claim of domestic violence. Witnesses Gui Fen Hu and Ling Hu attest to a spousal relationship commencing on or about August 2003. Changrong Wang attests that in December 1998 the relationship between the sponsor and the visa applicant was one of girl friend and boy friend and that in November 2002 he met the couple who appeared ‘happy and romantic together, like a married couple’ (CB 228-229).
On balance, I am not satisfied that the visa applicant and the sponsor were in a long standing relationship at the time of application on 5 September 2003 as I am not satisfied their relationship had existed from about September 2001. There are no children of the relationship. Therefore I am not satisfied there are compelling circumstances. I find the visa applicant does not meet the requirements of Clause 820.211(2)(d)(ii).
The Court finds that the conclusions that there are no compelling circumstances and that the visa applicant does not meet the requirements of clause 820.211(2)(d) were properly open to the Tribunal.
The Tribunal continued:
As the visa applicant does not meet clauses 820.211(2)(a) or 821.211(2)(d) the visa applicant does not meet the criteria set out in clause 820.211 at the time of the application or at the time of the decision. I affirm the decision under review (CB 229).
The fact that the visa applicant does not meet the requirements of 820.211(d) means that the applicant does not meet the criteria set out in 820.211 which are criteria “to be satisfied” at the time of application. This means that the applicant does not meet the requirements for as Subclass 820 Spouse Visa. The Tribunal’s finding as to the failure to meet Regulation 1.15A (3)(a) therefore does not mean that its decision is wrong in law.
The Court finds that the Tribunal made no error of law affirming the decision under review, and did not deny procedural fairness.
The application and amended application are dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 23 January 2007
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