Wang (Migration)

[2021] AATA 4574

Wang (Migration) [2021] AATA 4574 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ning Wang

CASE NUMBER:  2006427

HOME AFFAIRS REFERENCE(S):          BCC2018/2808455

MEMBER:Nicholas McGowan

PLACE OF DECISION:  Melbourne

DECISION:The applicant satisfies cl.820.211(2)(d)(ii).
  

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – no substantive visa at the visa application – compelling circumstances to waive the Schedule 3 criteria – financial hardship – duration of the relationship – decision under review remitted     

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 3 Criterion 3001

1. On 26 July 2018 the applicant lodged applications for subclass 820/801 visas on the basis of his married relationship with his Australian citizen partner (sponsor) Cong LI.

2. On 13 March 2020 a delegate for the Minister refused to grant the applicant the visas on the basis he did not satisfy the Schedule 3 criteria (including the ‘waiver’ available under law).  On 31 March 2020 the applicant appealed the visa refusals to this Tribunal.

3. The matter was constituted to the present Member on 6 October 2021 and a hearing conducted by the Tribunal on 5 November 2021 at which the applicant and his wife (the sponsor) provided oral evidence.

4. At the time the applicant applied for the subclass 820/801 visas the applicant was required under law to hold a ‘substantive visa’. He did not (this aspect is not in contention). Accordingly, the Minister’s delegate found the applicant did not meet the Schedule 3 requirements, or the Schedule 3 ‘waiver’ provisions which (in effect) allow an applicant to have a partner visa application considered onshore, rather than requiring an applicant to go offshore.

5. At the hearing conducted by this Tribunal on 5 November 2021 the applicant and sponsor explained that the sponsor had experienced another miscarriage recently, and will shortly (23 November 2021) undergo surgery in respect to her reproductive system.

6. The applicant and sponsor are presently repaying their own mortgage, with each beign a wage earner, although clearly the sponsor will have a period where she may work less, in addition the applicant works greater hours than the sponsor. This and further circumstances of the relationship were shared with this Tribunal during its hearing into the review as conducted on 5 November 2021.

7. Appropriately, this Tribunal turns its mind to the critical question before it. Are there ‘compelling’ circumstances such that this Tribunal is satisfied it should apply the schedule 3 ‘waiver’?

8. The Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of a ‘waiver’  provision, reflects law-makers recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply onshore for a residence on partner grounds, but would otherwise be forced to leave Australia and apply offshore. Relevantly, Clause 10 – Schedule 2, Part 820 (Spouse), in the Explanatory Statement to the Statutory Rules states:

   “It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.”

9. At the time of this decision, the applicant and his sponsor have been in a married relationship since 12 April 2018, that’s almost four (4) years.

10.  The duration of their relationship is consistent with a circumstance law-makers envisaged may give rise to the ‘waiver’ (including importantly their sustained efforts to commence a family despite the difficulties they have been encountering), and well in excess of the ‘long-standing relationship which has been in existence for two years or longer’ referred to in the Explanatory Statement as detailed above.

11.  Given all the above, the Tribunal finds the longevity of the applicant and sponsor’s claimed relationship (and the financial and emotional support the applicant provides his wife throughout) are circumstances which are compelling in this matter. Almost four years have passed since the applicant and sponsor applied for the visas, and since that time, their married relationship continues as do their efforts to grow their family.

12.  Given all the above, the Tribunal is satisfies the applicant satisfies clause 820.211(2)(d)(ii) as discussed.

13.  Further to the above, the appropriate course is to remit the applicant’s subclass 820/801 visa applications to the Minister for further consideration with the finding the applicant meets clause 820.211(2)(d)(ii).

Statement made in Melbourne on Friday 5 November 2021 at 2:52pm

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.