WANG (Migration)

[2019] AATA 4634

WANG (Migration) [2019] AATA 4634 (7 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Linfeng WANG

CASE NUMBER:  1709444

HOME AFFAIRS REFERENCE(S):           BCC2017/65606

MEMBER:Peter Vlahos

DATE:7 October 2019

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 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 07 October 2019 at 5:16am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – primary source of household income – impact on Australian-citizen child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

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 Immigration and Border Protection 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 6 January 2017 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) of schedule 2 to the Regulations because it was considered that there were no compelling reasons for waiving the Schedule 3 criteria to enable the applicant to lodge a Partner visa onshore.

4. The applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant Mr Linfeng Wang and his wife, Ms. Jinyi Yao (the sponsor). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

6. 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).

7. 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

8. 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.

   Background

9. The applicant first arrived in Australia on 31 August 2008 on a Student visa (subclass 573) to study Tourist Management at Southern University, a course of study he completed and the visa expired on 15 March 2011. The applicant then applied for another student visa (subclass 572) but that visa was cancelled by the Department on 24 April 2013 because the applicant failed to adhere to that visa’s conditions.

10. The applicant remained an unlawful non-citizen within the community for three years before he came to the attention of the Department. The Department in turn, issued him with Bridging E visa on 30 December 2016.

11. During this time, the applicant met his sponsor/wife and two over a period of time formed a relationship which led them to marry on 26 June 2016. They have remained married and as a result of their union, the two now have a child (a daughter) born on 4 July 2019.  

12. On 16 January 2017, the applicant and his sponsor lodged a Partner (subclass 820/801) application.

    Criterion 3001

13. 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.

14. The applicant last held a substantive visa on 21 February 2012. This application was lodged on 6 January 2017. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

15. 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.

16. 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.

17. Prior to the Department making its decision on 12 April 2017, the applicant put forward in a letter his reasons which he considered as compelling and provided an explanation of the circumstances he encountered which made him illegal and without a substantive visa.

18. The applicant recalled that he had suffered injuries as a result a motor vehicle collision which occurred on 5 February 2011 which caused him to take a considerable period of time to recover from his injuries. The Department reject this reason as not being a reasonable explanation for the ‘lengthy period of [him] being unlawful.’

19. The applicant also raised as a reason his ‘gambling addiction’. This reason was put to the Tribunal by the applicant also, in his evidence. He claimed that because of his gambling addiction, he had squandered his savings – money provided to him by his family for studies and he had no further funds to pay for professional assistance with his visa. The Tribunal noted in its reading of the Department’s decision, the delegate was not convinced that this was a compelling reason.

20. The applicant also provided the Department with a psychotherapist report from Agape Psychocare, Melbourne dated 6 January 2017. The report stated that the applicant ‘self-reported a gambling problem’ and was ‘now in remission’. It also states the applicant suffered from ‘Adjustment disorder’ with a ‘mixed disturbance of emotions and conduct …’ but the report made treatment recommendations.

21. The delegate also noted in his decision that there was ‘no evidence of a gambling addiction’ provided by the applicant. The delegate also dismissed the report’s conclusions because it had been prepared based on one meeting in which the applicant self-reported his ‘addiction’ to gambling.

22. Though the delegate accepted that if the applicant was forced to return to China, the household income would be significantly reduced causing a level of hardship and difficulty to his wife but (according to the delegate) it was not reasonable to expect that individuals would modify their lifestyles and living standards for small period of time to make the necessary adjustments. The delegate also was of the opinion, that the sponsor would get family support from her parents and there was no evidence before the Department to suggest the absence of parental assistance.

23. Finally, the delegate questioned whether the applicant’s relationship with his wife was genuine because it was not long-term given the two had met in November 2015. Moreover, the delegate determined that the existence of a genuine relationship was not a compelling reason to waive the criterion. Also the delegate did not accept that there was evidence of an immediate intent to have a family, nor were there plans for this to happen in the immediate future though have been told that the applicant’s sponsor was seeking medical help for a endocrine condition of polycystic ovarian syndrome.

24. Thus, the delegate was satisfied that the applicant’s circumstances justified a waiver of the Schedule 3 criteria.

25. The Tribunal at the hearing of this matter was presented with a considerable amount of evidence both by the applicant and his wife and sponsor. The applicant did not justify his being an unlawful non-citizen within the community. He admitted that his gambling addiction had stripped his finances and he had no income to engage professionals to settle his visa status. The Tribunal during its discussion with the applicant of his gambling addiction was privy to a number of bank statements which document in ‘black and white’ the applicant’s gambling addiction from February 2011 to January 2016[1]. Indeed, having witnessed the documents, the Tribunal accepts that the applicant was a victim of gambling and this addictive behaviour caused him considerable personal issues.

    [1] See AAT File folios [32]-[72]

26. The Tribunal was told by the applicant that he sought professional assistance and with the assistance of his wife, he was able to put aside his gambling addiction and once again concentrate on his responsibilities as a husband and since 4 July 2019 – a father.

27. The applicant told the Tribunal that his only concern was his daughter and providing for her and his wife. He went on to tell the Tribunal that the entire income of the household is totally concentrated on him. He currently works as a carpenter earning approximately AUD$1200 per week and that money is immediately provided to his wife to service a home loan of (AUD$390,000) and the payment of all utilities and the needs of the household.

28. The applicant displayed a changed attitude to his life and determined to only concentrate on his family and the family’s latest addition. The Tribunal also acknowledges the fact that if the applicant was to be removed from Australia, his sudden removal would directly cause an impact on his Australian-citizen child. His wife is unable to work because she is in constant care of the child. Her family would not be able to assist her as they are old and working and do not have the time to provide assistance with the child.

29. It must be noted, whether the circumstances are ‘compelling’ will be a matter of fact and degree for the Tribunal to determine. In doing this, the Tribunal is required to apply its mind to the issues raised, engage with the material before it and to evaluate them and to give them consideration. The applicant in this instance has provided the Tribunal with an honest explanation of his circumstances which made him an unlawful non-citizen. His gambling addiction (with the evidence he provided to the Tribunal) was considerable and compelling in its severity. With professional help and with great assistance and encouragement of his wife and sponsor, the applicant returned to a meaningful lifestyle and to a gainful employ. He has the entire responsibility for his household on his shoulders as the household’s only wage earner and the sole provided for an Australian-citizen child. That child’s present and future welfare makes the applicant’s circumstances compelling in the opinion of the Tribunal and the Tribunal so finds.

30. 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).

31. 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

32. 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 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Peter Vlahos
    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.