Xu (Migration)

[2021] AATA 4084

Xu (Migration) [2021] AATA 4084 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuanhong Xu

CASE NUMBER:  1836449

HOME AFFAIRS REFERENCE(S):          BCC2018/1762167

MEMBER:Stephen Conwell

DATE:9 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 09 July 2021 at 12:49pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – poor immigration history – questionable timing of the relationship – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (Cth) (the Act).

2. The applicant applied for the visa on 21 April 2018 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 (Cth) (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 applicant failed to meet the criteria in cl.820.211(2)(d)(ii). That provision requires the applicant to satisfy Schedule 3 criteria 3001, 3003 and 3004. The delegate found that the applicant failed to meet criterion 3001 and therefore did not consider criteria 3003 and 3004. 

4. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold a telephone hearing. The parties raised no objections as to conducting the hearing by telephone.

6. The applicant participated in the hearing by telephone on 8 July 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal also received oral evidence from the sponsor, Mr. P.   

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

8. The decision record briefly sets out the applicant’s immigration history as follows. At the hearing it was agreed by the applicant to be correct:

   ·on 11 February 2008 the applicant first arrived in Australia on 13 May 2016 holding a Tourist (Subclass 600) Visitor visa;

   ·On 28 July 2016 her Tourist visa was cancelled due to her breach of the ‘No work’ visa condition.  It is noted that the applicant did not  dispute the breach;

   ·On 3 August 2016 the applicant applied for a [permanent] visa. This was refused on 24 Jan 2017. On 21 June 2017 applicant applied to the Tribunal for review of this decision;

   ·On 29 August 2017, the applicant was notified that the Tribunal had no jurisdiction as her application did not meet the review time-frames;

   ·On 10 October 2017 the applicant appealed to Federal Court, however her application for judicial review was unsuccessful;

   ·on 21 April 2018 she lodged a Partner (subclass 820/801) visa application and was subsequently granted a Bridging E (subclass 050) visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

9. Clause 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 de facto partner of the sponsor who is an Australian citizen.

10. ‘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 husband and wife 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.

11. The parties claim to have married on 3 April 2018 in Victoria and provided a marriage certificate in evidence (Department file fol. 30). On the basis of this evidence, the Tribunal accepts 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 spousal relationship met?

12. The applicant claims she met the sponsor on 11 April 2017 and they commenced their relationship on 25 April 2017, before marrying almost 12 months later. 

13. Prior to, and at the hearing, no further evidence was tendered in respect of the parties’ claimed cohabitation and relationship. The Tribunal notes that the parties have has provided minimal documentary evidence in support of the in r.1.15A(3) criteria . Regarding financial aspects of the relationship, the parties claim they share their finances and use a joint bank account. A copy of a bank statement of this joint account is on the Department file (Department file fol. 34). She claims to have not worked since the marriage and the sponsor supports her financially.  The Tribunal accepts that the parties have a joint bank account however there is no corroboratory evidence before the Tribunal about the parties’ financial matters. The Tribunal is satisfied that the parties have lived together since marriage, however, it does not consider the evidence of financial or nature of the household aspects of the relationship supports the existence of a genuine spousal relationship at time of application or now. 

14. Regarding social aspects of the relationship, the Tribunal notes the parties claim to socialise with the sponsor’s family and his work colleagues as well as their friends as a married couple. Further, that the applicant’s family in China accept and acknowledge their relationship. However there is little evidence to support these claims. Nevertheless, the Tribunal is prepared to accept that the parties are recognised as a married couple by their families, friends and by the sponsor’s work colleagues. 

15. Concerning the parties’ commitment to each other, the information before the Tribunal is that the parties met on 11 April 2017 and commenced their relationship on 25 April 2017. They  married on 3 April 2018. The applicant stated that the parties were in a genuine relationship and had plans to travel to China so that the sponsor could meet her family, however these plans have been thwarted by the Covid-19 pandemic. The Tribunal accepts that the parties are legally married but there is little objective evidence about the parties living together or about how the parties supported each other.  It is also  noted that this relationship began at a time when the applicant’s migration status in Australia was uncertain. When seen in the context of the applicant’s poor immigration history, the timing of the relationship gives the Tribunal cause to query whether the applicant embarked upon the relationship in order to pursue yet another migration pathway.

16. Having considered all of the evidence and circumstances holistically, including the applicant’s poor immigration history and the questionable timing of the relationship, the Tribunal is not satisfied that the applicant was ever genuinely committed to the relationship.

17. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.  On the basis of the applicant’s evidence to the Tribunal at the hearing,  nor is the Tribunal satisfied that the requirements of s.5F(2) are met at the time of this decision.

18. Therefore the applicant does not meet cl.820.211(2)(a) or cl.820.221.

19. Given these findings, it is not strictly necessary for the Tribunal to consider whether the applicant meets cl.820.211(2)(d), even though this was the basis of the delegate’s decision. The Tribunal makes the following findings addressing this criterion as an alternate basis for its decision and for the sake of completion.

    Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

20. 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).

21. 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.

22. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994.  There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994.  There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. 

    Criterion 3001

23. 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.

24. Departmental records show that the applicant last held a substantive visa on 28 July 2016, being the relevant day.  The Partner visa application which is the subject of this review was lodged on 21 April 2018.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

25. To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 criteria, that being criteria 3001, 3003 and 3004. The delegate found that the applicant failed to meet criterion 3001, consequently there was no requirement to assess the application against the remaining Schedule 3 criteria.

    Compelling reasons

26. 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.

27. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

28. At the hearing the Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria. 

29. The Tribunal reminded the applicant that because a genuine relationship forms the basis of all Partner visa applications, the delegate made no formal assessment to determine whether the applicant and the sponsor were in a genuine relationship at the time the application was lodged. Instead, the delegate focussed upon whether there were compelling reasons to waive the Schedule 3 criteria in the applicant’s circumstances. Accordingly, the Tribunal intends to adopt a similar approach.

30. At the hearing the applicant offered the following testimony that the following should be seen as compelling reasons for not applying the Schedule 3 criteria.

    ·   the applicant is a 52 year old citizen of China. Her parents are both deceased. She has three elder siblings all living in China. She has no other family in Australia;

    ·   She has an adult son who is married with two children. He is comfortably affluent, as is the applicant, who claims to own three investment properties in China;

    ·   the applicant and spouse married on 3 April 2018; they live together as a married couple and their respective families, friends and the  sponsor’s work colleagues acknowledge and accept the relationship. They have provided evidence of their relationship and life together to the Department.

    ·   in Australia the applicant is financially supported by the spouse. She hasn’t worked since their relationship began. Prior to that she had not worked in Australia in any meaningful sense. She had started work in a restaurant last year but it shut down a few weeks later due to the Covid-19 pandemic;

    ·   the applicant’s relationship with her spouse is genuine and ongoing; she  wishes to remain in Australia and continue to support the sponsor whom she respects and cares for.

    ·   due to the COVID-19 pandemic the couple were unable to travel to China last year, however the couple's family and friends acknowledge their relationship;

    The sponsor’s evidence

31. The sponsor made the following statements in oral testimony:

    ·   he is a 61 year old Australian citizen. He works full-time in an alcohol and drug rehabilitation centre.  He was first aware of his own anxiety and depression some 10-15 years ago. He received advice and treatment from his doctors and psychologists at various times;

    ·   his anxiety and depression re-surfaced with the death of his father in late 2017. The applicant’s love and support were very important to him at that time. He has not been on any medication for a number of years. His employment has equipped him with various self-help techniques, such as meditation. He also has access to counsellors and other support through his employment;

    ·   he attested to his relationship with the applicant being genuine and long-term;

    ·   if the applicant is required to go offshore to pursue her Partner visa, apart from the uncertain state of international travel due to the COVID-19 pandemic, the couple would incur additional costs in such a scenario and it would be disruptive to his work and to their lives.

32. The Tribunal accepts on the evidence that the applicant and sponsor are known to each other and there has been a married relationship between the parties for the last three years. The Tribunal accepts that the parties have provided each other with support during their relationship and continue to do so.  There are no children from the  relationship.

33. The Tribunal notes that a criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor.  The definition of both a spousal relationship relevantly requires that the relationship be “genuine and continuing”. Accordingly, the existence of a genuine and continuing spousal relationship is itself a criterion for the grant of a partner visa.  A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa.  A genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria. 

    Applicant’s immigration history

34. The decision record briefly sets out the applicant’s immigration history, which was not disputed by her at the hearing. The applicant’s immigration history indicates that her Tourist visa was cancelled less than three months after her arrival due to her breach of the ‘No Work’ condition 8101. At the time, the applicant did not dispute that there were grounds for cancelling her visa.  She then applied for  a  [permanent] visa on 3 August 2016, which was refused. The applicant did not [engage] with the [Department]. The applicant then sought to have the [permanent] visa refusal reviewed by this Tribunal, however the Tribunal found it had no jurisdiction due to the application having been lodged outside the statutory time-frames. On 10 October 2017 the applicant appealed to Federal Court, however her application for judicial review was unsuccessful.

35. The Tribunal views the applicant’s immigration history with concern. It appears that she has  been willing to ignore Australia’s immigration laws and has attempted to exhaust the legal process in order to prolong her stay in Australia. The Tribunal cannot rule out the possibility that the applicant has deliberately manipulated her circumstances to attempt to give rise to compelling circumstances in order to be able to remain in Australia without any valid reason.

36. The Tribunal has considered this evidence and the circumstances of the parties’ claimed relationship and is of the opinion that there is nothing in the individual circumstances of their particular case that should compel the Tribunal to not apply the Schedule 3 criteria. The Tribunal is not satisfied, on the evidence before it, that there are compelling reasons to not apply the Schedule 3 criteria.   

    Overall assessment

37. The Tribunal has considered the factors relevant to the case including those raised by the parties and in their written submissions and evidence.

38. The applicant’s primary contention is that if she is required to depart Australia to lodge an offshore visa application, both she and the sponsor would suffer emotional hardship which would be of concern given his history of anxiety and depression. It was claimed this was a compelling reason for waiving the requirement to meet the Schedule 3 criteria.  Yet by his own testimony the sponsor indicated that he has not been on medication for several years and he has successfully used self-help techniques to manage his mental health. He is also assisted by his work in a field which utilises such techniques; he also engages regularly with doctors and psychologists in the course of his work.

39. Clearly the applicant and the sponsor do not wish to be separated, even temporarily. However the Tribunal notes that the couple would have means of electronic communication available to them including Skype, Zoom and social media. The Tribunal considered the potential consequences of the applicant temporarily departing Australia. The applicant conceded there were no reasons why she could not return to China other than the emotional stress of separation and the general disruption to their lives.

1. The Tribunal accepts that separation is not the preferred outcome for the couple, and temporary relocation would be emotionally difficult for them. It is reasonable to expect a level of emotional hardship to be experienced if partners are separated from one another for any extended period of time.  This is a common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident.  Although emotional hardship can be considered a compelling factor in relation to the Schedule 3 criteria, neither the applicant nor the sponsor has provided sufficient evidence to substantiate such a claim; nor have they persuaded the Tribunal that the severity of the anticipated hardship is such that it might be constitute a compelling factor pertaining to the Schedule 3 criteria.  

2. The Tribunal further notes that if this relationship is genuine, the applicant would be eligible to apply for a Partner visa in the future and any period of separation is likely to be temporary. In the circumstances of this case, the Tribunal does not consider that a period of temporary separation gives rise to compelling reasons to waive the Schedule 3 criteria.  

   Conclusion

3. The Tribunal has considered the totality of the applicant’s circumstances.  Having considered the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

4. There is no evidence or suggestion the alternative criteria in cl.820.211 (2A), (2B), (5)-(9) apply. 

5. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Stephen Conwell
   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.