Park (Migration)

[2020] AATA 6106

Park (Migration) [2020] AATA 6106 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaeguk Park

CASE NUMBER:  1925738

HOME AFFAIRS REFERENCE(S):          BCC2016/2356193

MEMBER:Justin Meyer

DATE:17 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 December 2020 at 1:46pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –applicant was not the holder of a substantive visa at the time of application –sponsor has significant conditions and illnesses – compelling reasons exist – Schedule 3 requirements  waived – mental health of sponsor – substantial evidence of illness and incapacity – emotional and physical hardship ––decision under review remitted

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

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 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 using Microsoft Teams, 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 applicant did not raise any concerns as to conducting the review hearing by telephone, and confirmed their ability to do so. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

3. The applicant applied for the visa on 12 July 2016 on the basis of his relationship with his 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii), because she did not consider that there were compelling reasons to warrant a waiver of the Schedule 3 criteria.

5. The applicant appeared before the Tribunal on 25 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Chung Hee JUNG (Sponsor), who is the applicant's Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Tribunal can be satisfied that there are compelling reasons why the Schedule 3 criteria should be waived.

   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.

    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 applicant arrived in Australia in May 2008 on a visitor visa. Departmental records show this visa expired in August of that year. The applicant became unlawful on 26 August 2008, and remained so for almost eight years until the lodgement of this Partner visa application.

13. The Tribunal finds the applicant did not make his best endeavours to remain lawful, and this weighs against him. From May 2008 to July 2016 he held no visa of any kind, and was aware of this. He had no reasonable excuse.  His evidence was that he arrived for a visit and ran out of money after touring around. He said he had no money to purchase a fare to go home. He had suffered financially in a divorce. The Tribunal acknowledges that his personal circumstances were precarious, but there is a basic responsibility to have enough funds to return when one travels for leisure. His excuse is without merit.  

    Compelling reasons

14. 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.

15. 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.

    Did the applicant manipulate his circumstances to give rise to compelling reasons?

16. The delegate did not accept the reasons proffered for there being compelling circumstances (the applicant forwarded evidence of a claimed genuine relationship with certain financial, commitment, social and household factors and a relationship of more than a year’s standing, along with medical information about the condition of the sponsor).

17. The applicant submitted to the Tribunal:

    ·He is a 61-year-old national of South Korea. His sponsor is an Australian citizen, Ms Chung Hee JUNG, and is aged 65. The parties married in Australia on 12 July 2016, evidenced by a marriage certificate.

    ·Two statutory declarations from friends attesting to the genuineness of the relationship, dated 11 July 2016.

    ·Statements from the parties on their relationship.

    ·Applicant’s family register, dated 27 March 2015, with extract translation attached dated 25 August 2015.

    ·A divorce order, dated 26 August 2010, regarding the sponsor’s previous relationship.

    ·Bank statements dated 30 April 2014 to 31 July 2014 in sponsor’s name, 31 July 2014 to 29 April 2016 in joint names, letters from bank dated 1 August and 5 August 2014.

    ·Sponsor’s medical documentation dated from 17 September 2009 to 11 July 2016

    ·Sponsor’s medical documentation/ prescriptions dated from 10 June 2011 to 13 February 2019

    ·Copy of the sponsor’s pension card

    ·Documents submitted as evidence of relationship such as bank statements dated 31 July 2014 in the sponsor’s name, bank statements from 31 July 2014 to 30 January 2017 in joint names and a copy of Ms Hyang Park’s letter dated 22 February 2019

    ·Photographs.

18. The parties submitted to the department that:

    ·They are in a ‘stable and ongoing’ genuine relationship with your sponsor.

    ·The sponsor will experience emotional distress and continuing hardship if the applicant had to leave Australia and apply for a partner visa offshore. The sponsor would be deprived of the ‘care, love and companionship’ that the applicant gives her on a daily basis.

    ·The sponsor has an incurable disease which requires daily care from the applicant. The sponsor has poor, chronic health. To support this claim an outline of the daily routine was given, including preparation of daily medication, doing housework before leaving the residence after lunch to undertake volunteering work. In the evening the applicant said he typically prepared dinner.

19. The Tribunal interviewed the parties at length and the parties supplemented their written materials with reinforcement of their earlier claims.

20. They claimed that:

    ·Their relationship was of more than two years duration, and longstanding.

    ·The sponsor suffers from illnesses and symptoms such as nausea, dizziness, vomiting and headache, and acute vestibular neuritis. She risks collapse at any time.

    ·The sponsor takes anti-depressants and anti-anxiety medication. She suffers from chronic anxiety.

    ·The remark from the delegate that the sponsor’s adult (36 year-old) son can take adequate care of the sponsor in the absence of the applicant is, on balance, not supported, as he has moved out the parental home to gain his own life. He is also limited in his earnings.

    ·The Covid-19 epidemic threatens to delay any return to Australia that the applicant might be able to make if he were forced to apply for a partner visa offshore.

21. I find that the applicant, despite his previous unlawfulness did not engage in a scheme to  manipulate his situation to give rise to compelling circumstances, as there is no evidence of anything more than an individual who was careless or reckless about unlawfully being in Australia. There is no evidence that he had a design on selecting the sponsor as a partner to improve his prospects of success in obtaining a substantive visa, for example.   

    Whether these are compelling circumstances

22. The applicant has submitted that the reasons that are cmpelling in this case for not applying the Schedule 3 criteria for the above reasons. The Tribunal was able to discuss the lives and circumstances of the parties at length in the hearing. Their oral evidence is described below and I indicate how it is consistent with the written submissions.

23. I find that the sponsor is a woman of 63 who has significant conditions and illnesses and would strongly benefit from care of her husband and the help he offers. She has few if any other friends, and no relatives other than her adult son in her home state.

24. The Tribunal questioned the applicant on the care that he gives. He indicated that his wife suffers from a mixture of conditions, the most serious of which is a balance disorder called acute vestibular neuritis.

25. The applicant was able to give a detailed description of his wife’s psychological and medical condition. He said that she had blood pressure issues and at times will experience rage and anger. The applicant said that he would encourage her to go walking. He described other conditions such as cholesterol problems, thyroid condition and shingles along with anxiety, depression and binge eating. He noted that there is a psychologist report suggesting a major depressive disorder. He said that his wife had been getting better as far as depression was concerned and her anger levels had subsided, although it can fluctuate. He encouraged her to focus on happiness. He could describe the parties’ routines.

26. The applicant said that the 36-year-old son of the sponsor lives away from the parties and has his own life. He believed he currently has a partner and is focusing on his own life. He holds a full-time job. While the sponsor’s son lives his own life, he does assist his mother from time to time. He was the main caregiver for his mother until the parties met one another and married. In the circumstances the Tribunal does not consider it to be a viable option for a grown adult to give the constant care that the sponsor needs, while working and having a relationship, which are essential human needs and obligations.

27. The parties attend a nearby Salvation Army church together which has a Korean language service. Although it is a good community support, the applicant said that it was unlikely that church members of the group could assist with the type of 24-hour care the sponsor needs. The applicant said that his own health was ‘okay’. His wife does a small amount of volunteering in the church but having suffered a back injury she can no longer stand at fundraisers, for example.

28. The overall impression of the Tribunal was that the applicant supervises the sponsor’s medication, walking and accompanies her everywhere that she goes, as she is far from independent.

29. The Tribunal interviewed the sponsor in detail and asked about recent events in her life. She said that she was mostly at home and took a small walk in the evening. She says she cannot walk during the daytime because it is too bright and she becomes dizzy. The sponsor gave a consistent account of when she rose, how her husband and her prepared meals and what he did for her.  She confirmed that he accompanies her walking for example, as there is a concern about falling, due to balance issues. The sponsor said that if she was forced to live alone because her husband was required to go back to South Korea she would find it extremely difficult that she would be helpless. She said that she suffered from anxiety, sleeping problems and needed her husband in order to feel assured. She said that she was awkward and uncomfortable with strangers and was worried about support services personnel being strangers, particularly welfare workers. She said that she could not leave South Korea she did not have sufficient funds or have place to live. I note that she is a disability pensioner and the applicant does not work, except for some minor tasks for payment, which supports her contention here (although she receives AUD1500 per month from her son). Her bank records as submitted support her claims - they reveal modest spending and income.  She could only rely on her older brother’s family and they are not well. The sponsor added that she could not find work with her age and condition in South Korea.

30. The Tribunal concludes that these compelling circumstances. They powerfully move the Tribunal. A long spell overseas for the applicant would mean that the sponsor would be on her own in the face of debilitating medical conditions. There are various medical and psychologist materials to support her claims here. The applicant’s absence might further imperil her mental health. Alternatives in the form of state care or private care would range from concerningly less care in the circumstances than is wise, or unaffordable.

31. The Tribunal has examined a variety of medical information on these matters. These were largely not available to the delegate at the time of their decision.

32. Medical records were submitted to the Tribunal from the sponsor’s GP. They reveal a large number of conditions and illnesses from 2000 to 2015 including hypertension, hypercholesterolaemia, vestibular neuronitis, bilateral cataract & IOL, hysterectomy & BSO, thyroiditis and fatty liver.

33. The sponsor has had prescribed in 2020, Eutroxsig, Lipidil 145ing Tablet, Ostelin Vitamin D, Zan-Extra  Atorvastatin, Cilamox, Pananax, Atozet, and Somac

34. Her doctor noted on 13 February 2019 that the sponsor is on daily medications for hypertension, hypothyroidism and hypertriglyceridaemia.

35. She has a known history of cervical radiculopathy which is a permanent condition that causes recurrent pain in neck, arms and hands.

36. She has a known history of having attacks of dizzy spells that causes her to fall randomly, requiring someone to be with her for her safety.

37. There is a history of chronic anxiety that causes her to binge eat, resulting in her being overweight and having a fatty liver.

38. The doctor notes she needs a carer for physical as well as emotional support.

39. A second GP noted that in 2017 and 2018 the sponsor has had Rhinitis, Dyslipidaemia, Hypertension, Hypothyroidism, Otitis externa, GORD, Enterocolitis.

40. There are older medical opinions from a neurologist at the Royal Prince Alfred hospital that described her neurological conditions in 2011. There is also a mental health plan from 2018.

41. There is therefore substantial evidence of illness and incapacity. I accept the medical opinion that the sponsor needs a carer and I find that there is no other practical option than having her husband as her carer, and these represent compelling circumstances for not applying the schedule 3 criteria.

42. The relationship is of several years standing. The Tribunal makes no finding on whether it is a genuine spousal / de facto relationship for the purposes of the regulations but it is not disturbed by any of the evidence to date. There is evidence of a relationship in the form of photos and testament to the social, commitment, household and financial aspects.

43. The applicant’s very long period without a visa is a concern, but I do not consider to it to have formed part of a wider scheme to manipulate this visa application.

44. Thus the compelling circumstances weigh this matter in the applicant’s favour. I find that if the ‘waiver’ to Schedule 3 criteria is not applied, the sponsor might suffer emotional and physical hardship, it would likely exacerbate her mental illnesses and physical ailments and stress, and that such hardship would be undesirable. Accordingly, I am satisfied that the support the applicant provides, and the psychological stress and medical issues that would further burden the sponsor if the applicant had to go offshore for a period of months or years in order to apply for a visa, warrants not applying the relevant criteria. I do not consider it practical in the circumstances for the sponsor to join him overseas for a period because of her conditions, finances and age group. I am also mindful of the hardship faced by the applicant should he have to go overseas in such circumstances as these.

45. The Tribunal is satisfied that his situation constitutes compelling reasons for waiving the Schedule 3 criteria and that there are forceful reasons why the applicant should be enabled to lodge a Partner visa onshore.

46. 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).

47. 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

48. 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 Meyer
    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.