Oan (Migration)

[2020] AATA 6081

Oan (Migration) [2020] AATA 6081 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hong Eng Oan
Ms To Lien Tia
Mr Chi Thuan Tia

CASE NUMBER:  1905505

HOME AFFAIRS REFERENCE(S):          BCC2017/4662775

MEMBER:Nicholas McGowan

DATE:22 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made 22 December 2020 at 2:44pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –applicant was not the holder of a substantive visa at the time of application – health condition –no sufficient compelling reasons to waive the Schedule 3 criteria –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

WRITTEN STATEMENT OF DECISION AND REASONS

1. The first named visa applicant (the applicant), who is a Vietnamese citizen, applied with her two (now adult children) for a Subclass 820 temporary partner visa on the basis of her relationship with her Australian citizen husband Mr Angelo Scardamaglia.

2. The applicants applied for the visas on 7 December 2017. At that time, Class UK contained only one subclass: the 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. On 25 February 2019 a delegate of the Minister for Immigration refused to grant the applicants the visas on the basis that the applicant did not satisfy the Schedule 3 criteria.

4. As the Tribunal determined it could not make a favourable decision on the information before it alone, the applicant and her children and sponsor were invited to a hearing into the review.

5. The applicants appeared before the Tribunal on 18 December 2020 to give evidence and present arguments. At that hearing the Tribunal received oral evidence from the applicants and the applicants sponsor Angelo Scardamaglia. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by her representative, who also attended the Tribunal hearing.

   Applicant’s migration history

7. The applicant’s migration history is outlined in the delegate’s refusal Decision record dated 25 February 2019 - a copy of which the applicant has provided this Tribunal as part of this review. For the purpose of completeness, the applicant’s migration history is detailed as follows below (and as the Tribunal notes, has not been contested by the applicant):

   ·From 08 June 2004 and 16 June 2004, the applicant arrived and departed Australia as the holder of a Short Stay Business visa (subclass 456);

   ·On 12 December 2006, the applicant arrived in Australia on a Temporary Work Skilled visa (subclass 457). This visa was cancelled on 1 February 2008;

   ·On 14 December 2007, the applicant lodged a further Temporary Work Skilled visa (subclass 457) application. The applicant included her family members in this application as her dependents. This visa application was refused on 27 May 2008;

   ·On 03 June 2008, the applicant applied for a review at Migration Review Tribunal (MRT) - differently constituted - of the refusal decision on the Temporary Work skilled visa (subclass 457). The MRT affirmed the refusal decision on 09 October 2009;

   ·On 02 December 2009, the applicant applied for a review at Ministerial Intervention (MI). The outcome was ‘Not Considered’ by MI on 01 June 2010;

   ·On 07 December 2017, the applicant lodged her Partner (subclass 820/801) visa application which is now the subject of this review. An associated Bridging visa E (subclass WE-050) was granted to the applicant on 10 January 2018 with no Work Right.

   ·Currently, the applicant remains the holder of the Bridging visa E (subclass WE-050) without any Work Right.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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).

9. 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 there are compelling reasons for not applying the Schedule 3 criteria. These criteria are set out in the attachment to this decision.

   Compelling reasons

10. 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.

11. 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.

12. In this matter the applicant’s representative, by means of submission dated 15 December 2020, seeks the waiver of the Schedule 3 criteria on the basis that the applicant’s sponsor’s “health condition has further advanced requiring daily care and support” from the applicant, and, “the Covid-19 pandemic has given rise to circumstances where individuals have limited ability to depart Australia and there are inherent health risks with any departure.” The applicants spoke to these claims at the hearing, as outlined below. (The Tribunal notes for the record, this latest submission is in addition to the one submitted to the Department previously - dated 7 December 2017, which has also informed the Tribunal’s consideration.

    Oral evidence and argument(s) provided at the hearing held 18 December 2020

    Ms Hong Eng Oan (applicant)

13. The applicant told the Tribunal her husband cannot look after himself because he is very sick at the moment. The applicant’s husband gets dizzy and needs assistance, she says. The applicant declared she also needed to look after her husband when he has operations. The applicant says she also gives her husband his medication. The applicant’s husband cannot drive, so she also needs to take him to the hospital, and specialist appointments, including medical appointments related to his heart-health. The applicant says she stays home as she is afraid to go out because of SARS2. The applicant says she is concern she may contract the virus and bring it home to her husband. The applicant says she assists her husband day-to-day, looking after him, including showering him.

    Ms To Lien Tia, a.k.a. Kristy (secondary applicant)

14. The applicant’s daughter, Kristy, provided oral evidence and argument. The witness told the Tribunal it would be very ‘inconvenient’ if they had to leave Australia. The witness said her mother cares for their step-father, including after surgery he had in August 2020. The witness told the Tribunal her mother takes care of her step-father’s medications. The witness told the Tribunal prior to the visa refusal, her step-father has had health issues with his ears, and has been sick and unable to fully enjoy himself as he did before. The witness said her step-father’s own children are busy and do not look after him and may go into some kind of care. The witness is of the view her step-father’s mental health would deteriorate should they be required to return to Vietnam.

15. The witness told the Tribunal her own biological father lives in Australia, though she has not spoken to him since she was in year 12 (2016).

    Mr Chi Thuan Tia a.k.a. Ben (secondary applicant)

16. The applicant’s son, Ben, provide oral evidence and argument to the Tribunal. The witness told the Tribunal he has noticed his step-father’s mental health has deteriorated. The witness said he’d read his step-father’s psychologists report. The witness told the Tribunal their family has bonded well over the past 3-4 years. The witness has also observed the deteriorating health of his step-father over recent years.

    Angelo Scardamaglia (the applicants (plural) sponsor, and applicant’s husband)

17. The applicants sponsor told the Tribunal he married the applicant in 2017. The sponsor said they were very happy until things started going wrong, when the visa refusal was received, including the fact the applicant could not work (no work rights). The sponsor told the Tribunal he was aware the applicant’s migration status was uncertain when they met as she had shared that with him. The sponsor told the Tribunal after his operation his wife had to shower him, help with medication. The sponsor told the Tribunal it would be bad for the two kids (who are now adults) if they went back to Vietnam, as their life is here, and they’ve grown up here. The sponsor said he is scared to drive and does not do so. The sponsor told the Tribunal he doesn’t sleep much and tries to sleep during the day when he can. The sponsor said he has a problem with is heart, blood pressure, and takes tablets for these. The sponsor said the last time he went to the specialist (ear doctor) on 8 December 2020 he was told he has to wait another six months to a year to see if the operation (he had previously) was successful, or whether he requires a further operation.

    Analysis

18. The evidence before the Tribunal is that the applicant is in good health, as are her children, and they (in different ways) support her husband (their sponsor).

19. There is no evidence the sponsor cannot seek and obtain support during any temporary separation from this wife and children (the applicant) notwithstanding this is not his preference.

20. The medical evidence, much of which is dated, does not indicate to the Tribunal that the sponsor presently has any major or significant adverse health concern such that he is unable to live independently, and/or including with the support of community or other services (in the temporary absence of his wife and children).

21. Importantly, the sponsor’s oral evidence to this Tribunal is that he has recently had surgery and now must wait for some six-to-twelve months before Doctors can fully assess its success or determine whether additional treatment or surgery is required.

22. There is no evidence before the Tribunal that the sponsor’s treatment was not successful (to date) to the extent his medical doctors and specialist anticipated, notwithstanding he continues to have other health needs, including related symptoms, and notwithstanding the outcome maybe not be commensurate with a ‘normal’ working ear.

23. It is also clear to the Tribunal from the medical evidence that his ear condition is not new, and well and truly pre-dates his relationship with his sponsor (acknowledging however, the severity of his condition and symptoms have changed over time, and may continue to).

24. The sponsor’s other health matters are, based on all the medical and psychological evidence, in the Tribunal’s assessment, not unusual or so severe, or without mitigation by treatment, or support form health and community services, including any assistance from a psychologist (though there is no evidence any is presently engaged for any treatment).

25. The Tribunal notes that in respect to the latest psychological report (dated 10 September 2019) the psychologist assessment appears based on the assertion the applicant would be “denied a visa to live in Australia”. This is a misunderstanding, and the psychologist observations must be read within this context. Any separation between the applicant and her husband (should that occur) would be temporary and would not preclude the applicants from living in Australia in the future.

26. The Tribunal notes, it is not unusual for a degree of emotional hardship when a partner (or children with that partner) are required to go offshore to progress a partner visa application.

27. The Tribunal notes the children are now adults. The youngest adult child (Ben) is 18 years old and has completed his Year 12 (in 2020). The eldest adult child (Kristy) is 22 years old. The Tribunal acknowledges they have a preference to remain in Australia, and remain with their stepfather, though it is not uncommon for parties to be separated temporarily while a partner visa application is progressed offshore, including a degree of emotional hardship.

28. The Tribunal acknowledges there is a covid-19 risk if the applicants return to Vietnam, and that it may be elevated compared to Australia (though this is subject to constant change). However, as each of the applicants can significantly mitigate any risk by taking personal protective measures. Critically, none of the applicants has established that they are somehow particularly vulnerable to the virus (medically) such that the anticipated increase in risk of contracting the virus in Vietnam is somehow a determinative consideration in the Tribunal’s considerations.

    Findings

29. The Tribunal has considered all the evidence, and claims, including those in respect to the adult (child) applicants.

30. The Tribunal has considered the Act, Regulations and relevant policy, including the Explanatory Statement. Though the Explanatory Statement outlines examples when the waiver may be justified, in this matter - as the applicants migration status was uncertain (prior to entering the relationship), and the sponsor’s medical matters, specifically in respect to his ear, were pre-existing, in all the circumstances of this case, the Tribunal has not been satisfied that the long-term nature of the claimed relationship is a ‘compelling’ reason to not apply the Schedule 3 criteria.

31. Further to the above, the applicant has not satisfied the Tribunal that there is something so forceful about any of the applicant’s (and her family’s) circumstances, are compelling reasons to not apply the Schedule 3 criteria.

32. Given all the above, the applicant has not satisfied the Tribunal that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

33. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

34. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    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.