LIN (Migration) - [2019] AATA 6025

LIN (Migration) [2019] AATA 6025 (3 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Ling LIN
VISA APPLICANTS:  Mr Hongwen Chen
Mr Mobing Chen
CASE NUMBER:  1904023
DIBP REFERENCE(S):  BCC2016/1229572
MEMBER:Russell Matheson
DATE:3 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.213 of Schedule 2 to the Regulations; and
·cl.309.222 of Schedule 2 to the Regulations and;

the second named visa applicant meets:
·cl.309.322 of Schedule 2 to the Regulations.
Statement made on 03 October 2019 at 1:18pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit Court remittal – limit on number of people a person can sponsor – review applicant/sponsor’s two previous sponsorships – compelling circumstances – sponsor’s financial circumstances, medical condition and treatment – sponsor would suffer undue financial hardship if she had to relocate to China – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), r 1.20.J, Schedule 2, cls 309.211(2), 309.213, 309.221, 309.222, 309.322
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 March 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958.
The first named visa applicant (the applicant) applied for the visa on 20 March 2016 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.309.222 because the sponsorship was not approved by the minister. The reason for this was that the sponsor did not meet the requirements in r.1.20J and the delegate was not satisfied that there were compelling circumstances affecting the sponsor so that the sponsorship should be approved.
The matter before the Tribunal has been remitted by the Federal Circuit Court of Australia on 19 February 2019 because the previous decision to affirm the visa application by the Tribunal on 19 October 2018 was affected by jurisdictional error because the Tribunal failed to consider the applicant’s claim that her financial circumstances constituted a compelling reason affecting her.
The review applicant appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. The Tribunal also received…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LIN (Migration) [2019] AATA 6025
Case: [2019] AATA 6025
Decision Date: 3 October 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, before the Tribunal. The applicant was a Chinese national, and the sponsor was an Australian citizen who had previously sponsored two other individuals for partner visas. The central dispute revolved around whether there were compelling circumstances affecting the sponsor that would justify approving her current sponsorship, given her history of two previous sponsorships.

The legal issue before the Tribunal was to determine if compelling circumstances existed that warranted the approval of the sponsor's current partnership visa application. This required an assessment of the sponsor's personal circumstances, including her financial situation, health, and her stated unwillingness to relocate to China, against the backdrop of her prior sponsorship history.

The Tribunal considered evidence regarding the sponsor's serious and deteriorating heart condition, the significant costs of her medication which are subsidised in Australia but would not be in China, and her reliance on Centrelink payments. It also noted her financial commitments, including a joint mortgage with her son, and her stated desire to remain in Australia. The Tribunal found that the sponsor would suffer undue financial hardship if she were required to relocate to China. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets specific criteria (cl.309.213 and cl.309.222 of Schedule 2 to the Regulations), and the second named visa applicant meets criterion cl.309.322 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties claimed that they met each other on 20 December 2014 while the applicant was in Australia. The parties claimed that they committed to a relationship with each other on 14 February 2015. The applicant then returned to China in April 2015. The sponsor travelled to China for two weeks in September 2015 and again for a month in December 2015. The parties were married in China on 30 December 2015. Since their marriage the sponsor has travelled to China on numerous occasions to visit the applicant, the most recent period being from 14 December 2018 to 16 January 2019. CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department decision provided by the sponsor to the Tribunal. Issue The issue in the present case is whether there are compelling circumstances affecting the sponsor such that the sponsorship should be approved.Hearing The sponsor gave evidence as to her current circumstances including living arrangements, past work history, health issues, finances and the sponsor’s son (secondary applicant). The sponsor stated that the applicant’s son is not studying at present is currently on a bridging visa and is allowed to work 20 hours a week and he is doing odd jobs. She also provided details of the applicant’s life in China including living arrangements, work and income. The applicant and sponsor told the Tribunal they have little savings with the sponsor being on Centrelink payments and the applicant stating that he earns RMB10, 000 per annum working as a farmer. The two witnesses provided evidence to the Tribunal and both had a sound knowledge of the parties’ relationship, the sponsor’s health and the parties’ financial circumstances. The Tribunal found the two witnesses genuine and believable. The Tribunal referred to the fact that the sponsor was born in China and she could renounce her Australian citizenship and return to live in China permanently as a Chinese citizen with access to Chinese health services with the applicant if she chose to do so. The sponsor stated that she is an Australian citizen and does not want to return to live in China. She said that she suffers from a serious heart condition that is gradually deteriorating and it would be a financial burden upon her in relation to the costs of her medications which are subsidised in Australia and they would not be subsidised in China and she would lose the only income that she receives from Centrelink. The sponsor further stated that she lives with her son who works as a plumber and they have a joint $700,000 mortgage on a property together and that her son’s wages are exhausted by paying the bills, mortgage and spent on daily living expenses and she spends a significant amount of her Centrelink payments on her medication. The sponsor provided in her written submission dated 17 September 2019 to the Tribunal a table of the associated costs in relation to her medication (TF folios 36 and 37).Other issues

Decision

Reasons for decision

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 309 visa.DECISION The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl.309.213 of Schedule 2 to the Regulations; and·cl.309.222 of Schedule 2 to the Regulations; andthe second named visa applicant meets:·cl.309.322 of Schedule 2 to the RegulationsRussell MathesonMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant is a 48 year-old male citizen of China. He was previously married and divorced his wife in 2005. There are two children of that relationship, the second of whom is the second named visa applicant and is currently 25 years old. The applicant entered Australia on 16 March 2008 holding a Subclass 676 Tourist visa. That visa expired and he remained in Australia. He was granted a Bridging visa while another application was assessed. That application was refused and the applicant remained in Australia as an unlawful non-citizen. He was located by the Department and placed in immigration detention. He was returned to China on 14 April 2015. The sponsor is a 53 year-old female who was born in China. She is an Australian citizen. She first entered Australia in December 1991 sponsored by her then husband Mr A. There is a child of that relationship who resides in Australia. The sponsor divorced her first husband in 1998. In 2004 she married Mr B who she sponsored for a Partner visa which was granted to him. She divorced Mr B in August 2010. There are no children of that relationship. The sponsor then married Mr C in December 2010 who she sponsored for a Partner visa which was granted to him. She divorced Mr C in July 2015. The parties claimed that they met each other on 20 December 2014 while the applicant was in Australia. The parties claimed that they committed to a relationship with each other on 14 February 2015. The applicant then returned to China in April 2015. The sponsor travelled to China for two weeks in September 2015 and again for a month in December 2015. The parties were married in China on 30 December 2015. Since their marriage the sponsor has travelled to China on numerous occasions to visit the applicant, the most recent period being from 14 December 2018 to 16 January 2019. CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Department decision provided by the sponsor to the Tribunal. Issue The issue in the present case is whether there are compelling circumstances affecting the sponsor such that the sponsorship should be approved.Hearing The sponsor gave evidence as to her current circumstances including living arrangements, past work history, health issues, finances and the sponsor’s son (secondary applicant). The sponsor stated that the applicant’s son is not studying at present is currently on a bridging visa and is allowed to work 20 hours a week and he is doing odd jobs. She also provided details of the applicant’s life in China including living arrangements, work and income. The applicant and sponsor told the Tribunal they have little savings with the sponsor being on Centrelink payments and the applicant stating that he earns RMB10, 000 per annum working as a farmer. The two witnesses provided evidence to the Tribunal and both had a sound knowledge of the parties’ relationship, the sponsor’s health and the parties’ financial circumstances. The Tribunal found the two witnesses genuine and believable.