Lin (Migration)

[2020] AATA 5356

Lin (Migration) [2020] AATA 5356 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Caimei Lin

CASE NUMBER:  1835514

HOME AFFAIRS REFERENCE(S):          BCC2017/1113252

MEMBER:Justin Owen

DATE:15 September 2020     

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.221(2)(d) of Schedule 2 to the Regulations

Statement made on 15 September 2020 at 12:08pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – temporary physical separation with Australian citizen partner and child – primary care provider to child – access to childcare services – late-term pregnancy – pre- and post-natal care and support required – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 March 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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).  The delegate found that the applicant was not the holder of a substantive visa at the time she lodged the partner visa application.  The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the application, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria. 

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal via teleconference on 10 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor and husband Mr Linang Lin and brother-in-law Mr Liangjie Lin.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing by telephone.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them. 

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

9. 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).

10. 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.

11. The applicant provided to the Tribunal a copy of the Departmental decision record.  It indicates on 14 July 2006 the applicant first arrived in Australia on a Student (subclass 571) visa.  On 20 December 2006 the applicant was granted a further Student (subclass 571) visa whilst on 5 September 2008 she was granted a Student (subclass 572) visa which ceased on 25 August 2010.  The applicant became an unlawful non-citizen at this time.  From 26 August 2010 to 22 March 2017 the applicant did not hold a visa whilst residing in Australia.  On 22 March 2017 the applicant lodged a Partner (subclass 820/801) visa application and were subsequently granted a Bridging (subclass C) visa in association with this application. 

12. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994.  There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994.  There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that she entered Australia unlawfully on or after 1 September 1994. 

    Criterion 3001

13. 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.

14. The Tribunal finds that the applicant last held a substantive visa on 25 August 2010.  The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.     

15. The applicant’s Partner visa application was not made until over six and a half years since she last held a substantive visa.  As the Partner visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. 

16. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

17. 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.

18. 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.

19. The Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria. 

20. The applicant submitted a number of reasons for a waiver: namely her two-year old Australian citizen daughter Olivia and the child’s best interests; her 30-week pregnancy and the imminent arrival of her second child; her husband the sponsor’s reliance on her; as well as a claim that any decision her husband and daughter made to relocate to PR China with her whilst she lodged an offshore Partner visa application would be problematic.

21. The applicant submitted to the Tribunal a Victorian Birth Certificate for her daughter Miss Olivia Lin, born 14 September 2017.  The certificate lists the applicant as the child’s mother and the sponsor as the child’s father.  The Tribunal notes that the sponsor and Miss Lin previously undertook DNA testing that confirmed Miss Lin is the daughter of the sponsor.   On the basis of the evidence before the Tribunal, the Tribunal accepts that Miss Olivia Lin is the child of the applicant and sponsor.  Given the sponsor is an Australian citizen, Miss Lin is therefore and Australian citizen by birth.

22. The Tribunal asked the applicant if her daughter and the sponsor might travel offshore with her if she was required to depart Australia.  The sponsor said they would not.  She said both were Australian citizens and neither had any legal right to remain in PR China for a period of over three months.  The Tribunal has considered the applicant’s claim that any relocation of her husband and daughter made to relocate to PR China whilst she lodged an offshore Partner visa application would be problematic due to their Australian citizenship. The Tribunal accepts that the sponsor and Miss Lin may be limited in their ability to remain in PR China with the applicant but notes neither is required to depart Australia.  They are not compelled to travel with the applicant to PR China.  That is solely a decision for the family to make.  The Tribunal does not consider any challenges the sponsor and Miss Olivia Lin may face in any relocation to PR China with the applicant are a compelling reason for a waiver of the Schedule 3 criteria. 

23. The Tribunal has considered the applicant’s claim that the sponsor has a reliance upon her, and they would both suffer from emotional hardship if she was required to depart Australia to lodge a Partner visa application from offshore.  The applicant in her oral testimony stated that she and the sponsor needed to remain together.  She stated that remaining in communication and providing each other support over the telephone and other communication channels was not the same and inadequate.  The applicant stated that she and the sponsor couldn’t be separated.  The Tribunal has considered the applicant’s submissions on the sponsor’s reliance upon her and emotional hardship: it does not consider these compelling reasons to waive the Schedule 3 criteria.  In the Tribunal’s view, separation is not uncommon among partners. The Tribunal also notes that if this relationship is genuine, the applicant will be eligible to apply for a Partner visa in the future and any period of separation is likely to be temporary.  The sponsor has the option, if he so wishes, to travel offshore to visit the applicant whilst her Partner visa is being processed.  Despite the applicant’s claims, the Tribunal considers modern and easily accessible communications allows individuals to remain in close contact and provide each other with ongoing emotional support whilst physically separated.   In the circumstances of this case, the Tribunal does not consider that the period of temporary separation and the emotional hardship it is claimed the sponsor will face whilst the applicant applies for an offshore Partner visa gives rise to compelling reasons for the waiver.  Similarly, the Tribunal is unmoved by the applicant’s own claim of emotional hardship as a result of a temporary physical absence from the sponsor.  The Tribunal considers such hardship can be mitigated for the same reasons above. The Tribunal does not consider the claim of reliance and emotional hardship is a compelling reason to waive the Schedule 3 criteria.  

24. The applicant submitted that her two-year old daughter of the applicant and sponsor was a compelling reason for the Tribunal to justify the waiver of the Schedule 3 criteria.  The applicant submitted that it was in the best interests of the Miss Olivia Lin to stay with both her parents. 

25. The applicant has asserted that she needs to remain in Australia to care for her two-year old daughter and this represents a compelling reason to waive the Schedule 3 criteria.  She has stated that separation from her daughter will result in significant difficulties for her daughter and the sponsor.  She states that the sponsor works five to six days a week in the construction industry and is the sole financial provider to their family.  Whilst her sponsor’s immediate family reside in Melbourne, she stated that her own family is in PR China.   The applicant has stated that the sponsor is paying off the mortgage that exists over their family home which they have had for the past three years.  She submitted that, should she be required to depart offshore to lodge a new offshore Partner visa, both looking after their young daughter whilst continuing to work extensive hours will be very difficult for the sponsor. 

26. The applicant stated that she is looking after her daughter and providing the vast majority of the care she requires.  The child is not at childcare but with the applicant during the day.  The applicant’s evidence pertaining to care provided to Miss Olivia Lin was consistent with that of the sponsor.  The Tribunal accepts that the applicant is the primary care provider to her young daughter.

27. The Tribunal does not accept the sponsor’s employment somehow precludes him from being the primary care provider to Miss Olivia Lin.  Many individuals work full-time in demanding jobs and balance their employment with responsibilities to their own child.  The sponsor as an Australian citizen can access heavily subsidised childcare through the Commonwealth Government that could greatly assist in providing the supervision Miss Lin requires. At the moment however the sponsor is not utilising this service at all.   

28. The applicant however has also submitted evidence concerning her late-term pregnancy.  Correspondence from the applicant’s GP Dr Naser dated 27 August 2020 states that the applicant is 29-weeks pregnant with an expected date of conception of 13 November 2020.  The applicant has also provided other medical evidence including ultrasounds and correspondence from her obstetrician confirming appointments in August and September 2020.  The Tribunal accepts that the applicant is in the late-term of her pregnancy and due to give birth to her second child in mid-November 2020.  The Tribunal accepts the sponsor is the father of the applicant’s imminent second child.  The applicant has submitted that her late-term pregnancy – and the pre- and post-natal care and support provided by the sponsor as father of the child – is a compelling reason for the Tribunal to exercise the waiver of the Schedule 3 criteria. 

29. The Tribunal accepts the pre- and post-natal care and support the applicant requires in relation to her imminent second child is considerable; particularly given she is also the mother to a two-year old daughter who has her own caring needs and requirements.  The Tribunal considers that the sponsor also has a considerable and important role to play in providing this support.    

30. The Tribunal on the basis of the evidence before it considers the applicant’s imminent second child – at the time of decision she is thirty weeks pregnant – and the ongoing needs of her two-year old daughter Miss Olivia Lin – together represent compelling reasons for the Tribunal to waive the Schedule 3 criteria. The Tribunal considers the applicant’s two-year old daughter, an Australian citizen, has a genuine need for the ongoing physical presence and support of her mother.  The Tribunal furthermore considers that the best interests of Miss Olivia Lin are served with the physical presence, love and support of both her mother and father.  The Tribunal accepts that the applicant and sponsor have been involved in a relationship for some years and the Tribunal, whilst recognising the applicant’s delinquent migration history, is loathe in the circumstances of this case to disrupt what appears to be a loving and supportive family unit at a very crucial time in their lives.  The Tribunal furthermore considers the pre- and post-natal care required of the applicant’s imminent second child – as well as the health of the applicant herself, given she is in the late term of her pregnancy, are further compelling reasons to waive the Schedule 3 criteria.

31. The Tribunal in the circumstances of this considers the interests of the applicant’s imminent second child, her two-year old Australian citizen daughter Miss Olivia Lin as well as the applicant’s own health and wellbeing at this critical time are compelling reasons to waive the Schedule 3 criteria. 

32. The Tribunal notes that the applicant was unlawful in Australia for a significant period of time – over six and a half years between 2010 and 2017.  The Tribunal asked the applicant when she told the sponsor she was unlawful.  She replied early in their relationship.  The sponsor concurred in his own evidence with this.  The applicant apologised to the Tribunal for her ‘mistake’ in being unlawful.  She blamed her migration status on the collapse of her education provider a decade ago, saying this impacted adversely on her family who had borrowed money to pay for her student fees.  The applicant stated that she went off to work so she could help them financially.  In response to her failure to inform the Department of her migration status for well over six years, she stated that she didn’t think about it and didn’t have a plan.

33. The Tribunal enquired of the applicant as to why she married and had a child when he had no lawful right to remain in Australia.  The Tribunal noted the delay in lodging a Partner visa application and asked whether the delay was so she could claim firstly a pregnancy and subsequently a child as a compelling reason for the waiver of the Schedule 3 criteria.  The applicant denied this was the case.  She stated that she lodged the Partner visa application finally in 2017 on the basis of advice from friends.   The Tribunal is not satisfied with this explanation.  The Tribunal notes that the Schedule 3 waiver is to enable a decision-maker to have a degree of flexibility in determining whether an onshore Partner visa application can and should in the circumstances continue to be processed onshore when the applicant fails to meet the relevant Criteria 3001, 3003 and 3004.  The Tribunal notes that it is not meant to be a ‘hall pass’ for applicants that have failed to comply with their visa conditions or have deliberately manipulated their circumstances to give rise to compelling reasons.  The Tribunal is somewhat troubled by the evidence before it concerning the applicant’s failure to meet the Schedule 3 criteria.  The Tribunal notes that the applicant was unlawful for a significant period of time.  Both the applicant and the sponsor were both well aware early into their relationship that the applicant had no lawful right to remain in Australia.  The applicant failed to notify the Department of her changed circumstances as required by the law.  The failure of the applicant to notify the Department and to remain unlawful allowed her to both enter into a long-term relationship and start a family.  These events have become the reasons that the applicant now submits are reasons to waive the Schedule 3 criteria.  The Tribunal finds such circumstances somewhat counter-intuitive and the Tribunal is loath to see such circumstances now utilised successfully for migration purposes.  The Tribunal however must, in current migration law, give consideration to all of the applicant’s circumstances and any other factors put forward that might be deemed compelling to waive Schedule 3 criteria from the time of application up until the time of decision: Waensila v MIBP [2016] FCAFC 32 Given this, whilst recognising the applicant’s delinquent migration history and the genuine possibility the long period of remaining unlawful was done to generate circumstances that might assist her claim of compelling reasons, the Tribunal considers the needs of the applicant’s imminent second child as well as those of her two-year old Australian citizen daughter –to be compelling and this ultimately outweighs the Tribunal’s other concerns in this matter.

1. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

2. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

3. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.221(2)(d) of Schedule 2 to the Regulations

   Justin Owen
   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.