Wang (Migration)

[2020] AATA 1813

Wang (Migration) [2020] AATA 1813 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Liangming Wang

SPONSOR:Yang Xie

CASE NUMBER:  1716124

DIBP REFERENCE(S):  BCC2017/1064870

MEMBER:Helen Kroger

DATE:Wednesday 4 March 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 (Temporary)) visa:

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

Statement made on 04 March 2020 at 2:28pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at time of application – compelling reasons not to apply Schedule 3 criteria – longstanding genuine relationship – birth of their daughter – economic hardship – decision under review remitted

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211

Refusal review: Partner (Temporary) (Class UK) subclass 820 visa

PARTICULARS

1. The visa applicant applied for the temporary 820 partner visa on 17 March 2017.

2. O 5 July 2017 a delegate for the Minister refused to grant the visa applicant the visa.

3. On 25 July 2017 the visa applicant appealed the Minister’s delegate’s refusal decision to the Tribunal for review.

   ISSUE

4. 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, and if not, whether there are compelling reasons for not applying them.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In this case the visa applicant last held a substantive visa on 30 May 2011 and lodged his partner application more than 28 days later. Therefore, the applicant does not meet Schedule 3 criteria 3001. Accordingly, the Tribunal is required to consider whether there are compelling reasons for not applying the criteria.

6. In respect to the parties’ relationship, the Tribunal is satisfied they started living together on 26 July 2013. They married one another on 18 May 2014. They have one child from their relationship, a daughter born 29 April 2018.

   COMPELLING REASONS

7. The Tribunal considered the relevant circumstances of the parties, including a child of the parties’ relationship and long term nature of the parties claimed relationship.

8. In respect to the Schedule 3 waiver, the Tribunal considered all the circumstances of the parties. The Tribunal also noted the visa applicant’s migration history.

9. The Tribunal is satisfied from all the oral evidence that the emotional support the sponsor has provided the visa applicant throughout their relationship; and the support the visa applicant provided his sponsor during, and since, the birth of their daughter, are in this case, compelling reasons to not apply the Schedule 3 criteria. The parties provided consistent and persuasive evidence during the hearing that indicates that the visa applicant provides significant care for the child on a daily basis, due to the physical impairment suffered by the sponsor when having spinal surgery at the age of fifteen. The visa applicant prepares all food for his daughter, bathes her, cares for her needs during the night, and makes as many arrangements possible prior to leaving for work so that any physical and caring demands are minimised, in order to support the sponsor and ensure proper care for their daughter.

10. The applicant told the Tribunal that if the sponsor holds the baby briefly, she suffers physical pain down the left side of her body causing numbing of her left arm. He explained that she cannot hold the baby for more than 10 minutes, and accordingly, has difficulty physically managing her daughter over a period of time. The sponsor detailed her medical history, the diagnosis and removal of a cyst from her spine, the subsequent compression on her spinal chord and referred pain she continues to experience in her neck and back, along with the need to postpone further surgery planned when she discovered she was pregnant in 2017.

11. Notwithstanding the above, the Tribunal also considered a number of other circumstances which might fairly be considered ‘compelling’ though there was not need for this Tribunal to record these in detail, and one compelling reasons is sufficient under the law. That said, the Tribunal examined closely the longevity of the relationship and the evidence before it that suggests that the parties have lived continuously together and not apart since July 2013 and were married in 18 May 2014. The Tribunal also considered at length the economic dependency of the sponsor on the applicant and the economic hardship that would be incurred if the applicant was required to move off-shore to pursue a partner visa.

    FINDINGS

12. The Tribunal has considered the applicant’s claimed circumstances, and is satisfied that the reason stated above is a compelling reason for not applying the Schedule 3 criteria in this case.

13. The Tribunal is satisfied that there is a compelling reason for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

14. Given the finding 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.