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 |
| 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…
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- Case
- [2007] FMCA 80
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented by Li and found that he did not meet the requirements of subclause 820.211(2)(a) because the relationship did not exist at the time of the visa application. Additionally, the court determined that Li did not satisfy subclause 820.211(2)(d)(ii) as he did not meet the criteria within 28 days of the relevant day, and there were no compelling reasons to waive those criteria. The court was not satisfied that Li's relationship with the sponsor was genuine and long-standing, and there were no compelling reasons to justify waiving the Schedule 3 criteria. The court concluded that Li did not meet the essential criteria for a subclass 820 visa, and therefore, the Tribunal's decision affirming the Minister’s delegate's refusal was upheld.
ORDERS:
1. The application and amended application be dismissed.
2. The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
Orders
Orders of the court
1.
The application and amended application be dismissed.
2.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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 1994whichever 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.