Ling (Migration)

[2018] AATA 2119

Ling (Migration) [2018] AATA 2119 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kai Ling

CASE NUMBER:  1609768

DIBP REFERENCE(S):  BCC2015/4111216

MEMBER:Justin Owen

DATE:5 June 2018

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 (Temporary)) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 05 June 2018 at 10:12am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa – Whether the Schedule 3 criteria should be waivered – Compelling reasons –Relationship with the Sponsor and child – Sponsor pregnant with second child – Applicant provides prenatal care – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 of a delegate of the Minister for Immigration on 10 June 2016 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 30 December 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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). The delegate found that the applicant was not the holder of a substantive visa at the time he 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 applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

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.

9. The applicant provided to the Tribunal a copy of the Departmental decision record.  It indicates that the applicant entered Australia on a subclass 572 Student visa on 4 September 2008 which ceased on 3 March 2011.  On 3 March 2011 the applicant was granted a further subclass 572 Student visa which ceased on 14 June 2012.  On 18 June 2012 the applicant was granted a subclass 573 Student visa as a dependant on his previous spouse’s application, and this visa ceased on 15 March 2015.  On 25 November 2014 the applicant applied for a subclass 573 Student visa which was refused on 2 March 2015.  The applicant lodged an application for review of this refusal with the then Migration Review Tribunal (MRT) on 12 March 2015.  The MRT affirmed the decision to refuse the visa on 18 November 2015.  On 30 December 2015 the applicant applied for a Partner visa and was granted a Bridging Visa C in association with this application.  On 10 June 2016 the delegate refused the applicant’s Partner visa application.  On 29 June 2016 the applicant applied to the Tribunal for a review of this decision.   

10. 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

11. 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.

12. The Tribunal finds that the applicant last held a substantive visa on 15 March 2015. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.

13. As the Partner visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

14. 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

15. 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.

16. 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.

17. On 29 June 2016 the applicant provided the Tribunal with a medical certificate stating that the sponsor had attended the Glen Union Medical Centre on 7 May 2016 and she was at that time 7 weeks and 4 days pregnant. 

18. On 6 September 2017 the applicant wrote to the Tribunal attaching a Birth Certificate from the State of Victoria for Miss Rainie Xiong, born on 29 December 2016.  The applicant was listed as the father and the sponsor the mother of the child. 

19. On 9 March 2018 the applicant again wrote to the Tribunal attaching correspondence from the Glen Union Medical Centre stating that the sponsor had attended the Centre on 8 March 2018 and she was currently five weeks pregnant with a due date of 4 November 2018.  

20. On 12 March 2018 the applicant’s representative provided the Tribunal with the sponsor’s new daughter’s birth certificate which listed the applicant as the father of the child.

21. On 16 March 2018 the applicant’s representative wrote to the Tribunal stating that the applicant and sponsor had agreed to provide DNA evidence of the claimed biological relationship between the applicant and the newborn baby girl.

22. On 16 April 2018 the Tribunal wrote to the applicant and offered the applicant the opportunity to provide DNA evidence of the claimed biological relationship between the applicant, the sponsor and the sponsor’s baby girl Miss Rainie Xiong.  The Tribunal emphasised that the DNA testing was not required by law and neither he nor the sponsor and the sponsor’s daughter were required to undertake DNA testing should they not wish to do so.  The Tribunal stated that the full costs of any testing would need to be paid by the applicant, as the Tribunal would not incur any costs associated with obtaining DNA evidence. 

23. On 4 June 2018 the Tribunal received the results of the paternity tests for the sponsor’s newborn daughter from Ms Melanie Marty of Genomic Diagnostics, PO Box 250, Heidelberg West Victoria 3081 (T1, folio.40-43). 

24. The parentage testing was carried out by Genomic Diagnostics on 28 May 2018 with samples collected from the applicant and the sponsor’s daughter.  

25. The testing showed the applicant was 49,410 times more likely to produce a child with the required alleles than an unrelated man drawn randomly from the Australian Caucasian population.  This equates to a Relative Chance of Paternity of 99.998%.  On this basis the Tribunal accepts that the applicant is the father of the sponsor’s currently 17-month old daughter.  The Tribunal places a high value on this evidence.  

26. The Tribunal accepts that there is a biological and social relationship that exists between the applicant, the sponsor and the sponsor’s child.   The Tribunal accepts that the daughter of the applicant and sponsor is, in this case, a compelling reason because of the postnatal assistance, care and support the mother (sponsor) requires, and will continue to require, from the applicant.

27. The Tribunal furthermore notes the evidence before it that the sponsor is currently pregnant with her second child due in about five months time. The Tribunal concedes that on the evidence there is a likelihood that the applicant is also the father of this child. The Tribunal considers the prenatal support the applicant is providing to the sponsor in the circumstances where she is currently also raising a young daughter amounts to a further compelling reason for it to exercise the waiver of the Schedule 3 requirements on this particular occasion.

28. 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).

29. 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

30. 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 (Temporary)) visa:

    ·cl.820.211(2)(d)(ii) 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.