Tai (Migration)

[2020] AATA 5658

Tai (Migration) [2020] AATA 5658 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Suet Tai

CASE NUMBER:  1908056

HOME AFFAIRS REFERENCE(S):          BCC2016/2596385

MEMBER:Paul Maishman

DATE OF ORAL DECISION:  10 November 2020

DATE OF WRITTEN STATEMENT:         13 November 2020

PLACE OF DECISION:  Perth

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) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 13 November 2020 at 9:08am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – sponsor’s responsibility for joint living costs – superannuation and will beneficiaries – emotional support for each other – applicant’s adverse immigration history – compelling reasons to waive the Schedule 3 criteria – sponsor’s degenerative back condition – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3; r 1.15

CASES

Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
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 3 August 2016 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)(a) because the delegate was not satisfied the applicant is the spouse of the sponsor.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 10 November 2020. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 10 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mark Brunt, the sponsor.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file containing the application form, the sponsor’s form, and documents provided by the applicant in respect of the application. The applicant is a 46-year-old Chinese national. She first met the sponsor in March 2016. She and the sponsor committed to a shared life together about 3 weeks after meeting and married in June 2016.

10. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The applicant’s visa history is detailed in the delegate’s decision record. In summary the applicant was known as Xioaqin Qiu and entered Australia as the holder of a Visitor visa on 10 May 2011. An application she made for a Student visa in August 2011 was refused on 29 September 2011. The applicant applied for a Partner visa in August 2012, on the basis of her relationship with her then husband, which was refused and the Tribunal (differently constituted) affirmed the refusal in September 2013. The applicant departed Australia on 26 June 2014 and was subject to a three year exclusion from entering Australia. The applicant re-entered Australia in February 2015 as the holder of a Tourist visa using her assumed name. In April 2015 an application for an Occupational Trainee visa was lodged using the applicant’s assumed name and the applicant was granted a bridging visa pending the outcome of that application.  

11. The applicant gave the Tribunal further documentary evidence prior to the hearing including bank account statements and correspondence; photographs; various invoices and letters from utilities. The Tribunal received statutory declarations from Peter William Brunt and Karen Peta Blunt. The applicant’s representative provided a written submission dated 4 November 2020.

12. The applicant and sponsor gave evidence at the hearing. The Tribunal questioned them individually about their relationship history, the development of their relationship, their knowledge of each other’s background and family relationships, the financial, social and household aspects of their relationship and the nature of their commitment to each other. The applicant and sponsor gave their evidence in a thoughtful and authentic manner. Their answers were sufficiently different that the Tribunal is satisfied that their responses were authentic from their respective knowledge rather than rehearsed. The Tribunal also questioned the applicant and sponsor jointly and observed their interaction with one another. The Tribunal observed they clearly had a close and cooperative relationship as expected from people in a genuine relationship. The Tribunal found the applicant and sponsor to be credible witnesses and accepts their oral evidence on that basis.

13. The issue in the present case is whether the applicant is the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

14. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

15. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)–(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file contains a marriage certificate showing the applicant and sponsor married in June 2016 and registered that marriage with the Registry of Births, Deaths and Marriages in Western Australia. There is no evidence before the Tribunal that the marriage is not valid. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

17. The Tribunal considered the financial aspects of the applicant and sponsor’s relationship.

18. The delegate was concerned the statements of joint accounts received by the Department only covered a three month period in 2016 and an eight month period in 2018. The delegate was unable to ascertain the operator of the accounts and gave the evidence little weight.

19. The parties gave consistent oral evidence that the sponsor was the only income earner and the contributor of cash deposits and account transfers. The sponsor provides all financial support for the applicant including paying the rent, bills, and day-to-day living costs. The applicant has access to the accounts by use of a plastic card and is a signatory to the sponsor’s personal account. The applicant provided Centrelink records confirming she had been declared as the sponsor’s partner since June 2016. The parties do not own assets or have joint liabilities.

20. The Tribunal is satisfied the financial aspects of the applicant and sponsor’s relationship are indicative of a couple in a marriage relationship. The sponsor takes responsibility for the payment of day-to-day household expenses. The parties have a joint legal obligation in respect of their Centrelink entitlements to accurately declare their respective income and other assets.

21. The Tribunal considered the nature of the applicant and sponsor’s household.

22. The delegate was concerned the applicant and sponsor claimed to have moved in together in June 2016 however correspondence later than that date was addressed to the sponsor at his previous address. The delegate gave little weight to evidence the applicant was nominated as a secondary contact in respect of the electricity account because her limited English ability would impede her communication with agencies.

23. The Tribunal received a mail redirection notice showing mail addressed to the sponsor at his previous recorded address was redirected to the parties stated new address from October 2015 through until October 2016. Mr Antony Crum provided a letter dated 22 September 2020 confirming the applicant and sponsor were renting a unit together and had done so since March 2017.

24. The parties were consistent in the description of their accommodation, their living arrangements and their roles in relation to the sharing of housework.

25. The nature of the household of the applicant and sponsor is indicative of a couple in a married relationship.

26. The Tribunal considered the social aspects of the relationship.

27. The Tribunal received a number of photographs showing the applicant and sponsor together and with their friends and families.

28. The parties gave evidence their finances are limited and they do not undertake many joint social activities. Mainly their social activities involve lunches with the sponsor’s brother. The parties gave consistent evidence around how they celebrated the applicant’s recent birthday. The parties gave consistent evidence about their most recent holiday away together.

29. The sponsor’s brother Peter Brunt and sister-in-law Karen Brunt provided statutory declarations confirming the applicant and sponsor have been married for four years and are in a genuine relationship.

30. The Tribunal is satisfied the parties represent themselves to other people as being married to each other. Their friends and acquaintances consider they are a genuine couple and they plan and undertake social activities together.

31. The social aspects of the applicant and sponsor’s relationship are indicative of a couple in a marriage relationship.

32. The Tribunal considered the nature of the applicant and sponsor’s commitment to each other.

33. The delegate was concerned evidence provided by the parties such as the sponsor’s superannuation statements, the sponsor’s will, and Centrelink records can be added to, modified or superseded with ease and placed little weight on those documents.

34. The Tribunal does not agree with the delegate’s assessment and attributes weight to those documents given to the Department. Superannuation beneficiaries and beneficiaries under wills can be amended easily however these documents create a legally binding obligation relevant to what is recorded in them. Similarly the details provided to Centrelink can be amended. There is no evidence this has occurred during the claimed duration of the relationship. On the contrary Centrelink’s records show the parties have been declared to that Department as a partnered couple since 2016.

35. The parties were married in 2016 and have lived together since then. The applicant has supported the sponsor in respect of some significant health conditions and through the death of his mother.

36. The nature of the applicant and sponsor’s commitment to each other is indicative of a couple in a married relationship. They have been married and lived together for four years. They are each other’s main source of companionship and emotional support and they see their relationship as enduring and long-term.

37. The Tribunal acknowledges the delegate was concerned with the applicant’s adverse immigration history and the rapid progression of her relationship with the sponsor to marriage. It is unclear if the delegate raised its concerns about the applicant’s adverse immigration history with the applicant.

38. The Tribunal asked the parties about the delegate’s concerns. The parties said they met through a dating agency. When they met they both established they were not interested in short-term relationships. They found they were compatible and decided to marry.

39. The tribunal is satisfied the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of others. Their relationship is genuine and continuing and they lived together and have done since they were married.

40. The Tribunal is therefore satisfied that s.5F(2)(b)–(d) are satisfied at the time of the decision.

41. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

42. There is no evidence that the sponsor is prohibited by cl.820.211(2B) from being a sponsoring partner.

43. Therefore the applicant does not meet cl.820.211(2)(a).

44. The sponsor has completed the requisite sponsorship form and the Tribunal accepts that the applicant is sponsored and so meets cl.820.211(2)(c).

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

45. 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).

46. 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

47. 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.

48. The delegate’s decision record outlines the applicant’s visa history and says she last held a substantive Tourist visa granted on 18 February 2015 which the Department’s records show ceased on 18 May 2015. The applicant was granted various bridging visas and was not the holder of a substantive visa when she lodged her Partner visa application on 3 August 2016.

49. The Tribunal finds that the applicant last held a substantive visa when her Tourist visa ceased on 18 May 2015. This is the ‘relevant day’ as defined in criterion 3001(2)(c)(i).

50. The applicant’s Partner visa application was made on 3 August 2016 and the Tribunal finds this is more than 28 days after the relevant day.

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

    Compelling reasons

52. 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.

53. 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.

54. Medical evidence on the Department’s file indicates the sponsor has degenerative back condition and depression. A report dated 17 April 2015 from Mr Taylor indicates the sponsor’s depressive condition is long-standing having been diagnosed in his 20s and taking antidepressants since the age of 34.

55. The sponsor said in his statutory declaration dated 28 October 2020 the applicant had seen him through hard times with his depression, back injuries and through the death of his mother. The applicant provides emotional and physical support for him.

56. The sponsor gave oral evidence his mental health condition was assisted by the presence of the applicant. The application had been ongoing now for more than four years. His mental health deteriorated when the visa application was refused and the ongoing appeal has caused him additional stress.

57. The Tribunal accepts the sponsor suffers significant medical conditions for which the applicant provides support and assistance. The Tribunal notes the delegate’s comments the sponsor’s mental health condition was in remission. The duration of the sponsor’s mental health condition suggests his condition is unlikely to be cured.

58. The sponsor’s mental health condition is likely to deteriorate significantly if the applicant was required to go offshore to make another visa application. The Tribunal finds these are compassionate circumstances that are compelling reasons for not applying the Schedule 3 criteria.

59. 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).

60. Therefore the applicant meets cl.820.211(2) and cl.820.221(1).

61. 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

62. 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) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    P. Maishman
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A    Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)     any joint ownership of real estate or other major assets; and

    (ii)    any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)     whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)    the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)     any joint responsibility for the care and support of children; and

    (ii)    the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)     whether the persons represent themselves to other people as being married to each other; and

    (ii)    the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)     the duration of the relationship; and

    (ii)    the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)     whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

    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.