Xu (Migration) - [2024] AATA 367

Xu (Migration) [2024] AATA 367 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jing Xu
REPRESENTATIVE:Mr Gangliang George Li

CASE NUMBER:  2111704
HOME AFFAIRS REFERENCE(S):          BCC2017/2230671
MEMBER:Christine Kannis
DATE:23 February 2024
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 820.221(4) of Schedule 2 to the Regulations

Statement made on 23 February 2024 at 7:16am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – compelling circumstances – support for the sponsor after surgery – mobility issues – lengthy relationship – medical evidence – significant hardship – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.20
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
Jiang v MIBP [2016] FCCA 360
Nagaki v MIBP [2016] FCCA 1070
Wu v MIBP [2016] FCCA 290
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 23 June 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 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.221(4 ) because the sponsor of the application had provided two previous sponsorships for partner visas. Both sponsorships had resulted in visas being granted to the applicants.
The applicant appeared before the Tribunal by MS Teams on 12 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Xiao Ping Ai and the sponsor’s son , Mr Zhao Cao. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made.
The issue in the present case is whether is whether the sponsorship limitations apply in this case, and if so, whether there are compelling circumstances affecting the sponsor for not applying the limitation requirements.
Are the sponsorship requirements met?
Clause 820.211 requires at the time of application, the applicant meets one of several alternative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Xu (Migration)

Details

AGLC: Xu (Migration) [2024] AATA 367
Case: [2024] AATA 367
Decision Date: 23 February 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Jing Xu, against a decision of the Tribunal regarding her Partner (Temporary) (Class UK) visa, Subclass 820. The central issue revolved around sponsorship limitations imposed by migration regulations and whether compelling circumstances existed to waive these limitations.

The Tribunal was required to determine whether the sponsorship limitations under regulation 1.20J of the Migration Regulations 1994 applied to the applicant's case. If they did apply, the Tribunal then had to consider whether there were compelling circumstances affecting the sponsor that would justify not applying these limitations. The Tribunal also needed to assess if the applicant met the criteria under clause 820.211(2)(c) and clause 820.221(4) of Schedule 2 to the Regulations.

The Tribunal found that the applicant met the criteria under clause 820.211(2)(c) and clause 820.221(4). However, it identified that regulation 1.20J limits a sponsor to a total of two approved sponsorships in a lifetime, with a five-year waiting period between sponsorships unless compelling circumstances exist. The Tribunal considered evidence regarding the sponsor's upcoming hip surgery, her mobility issues, and the applicant's reliance on her, alongside the lengthy duration of their relationship. While the sponsor had previous sponsored relationships and had travelled internationally, the Tribunal concluded that the matter should be remitted to the Minister for reconsideration of the remaining criteria for the Subclass 820 visa, implying that the compelling circumstances aspect required further assessment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Statements for Westpac and ANZ accounts in the applicant’s name described as “Jing Xu and Sponsor Al joint finances” were provided.Evidence provided at the hearingApplicant’s evidence The applicant told the Tribunal that the sponsor has mobility issues due to needing hip surgery. He said she had a hip replacement some years ago but one of her legs is now longer than the other and she needs further surgery. He said this surgery is likely to occur next year. He said the sponsor needs him to take care of her. The applicant told the Tribunal that he and the sponsor have been together for 7 or 8 years and they cannot be separated. He said he has no family in China as they have all passed away. When asked if the sponsor would relocate to China with him if the visa is not granted, he said she would live with him in China however he wants to stay in Australia.Sponsor’s evidence The sponsor told the Tribunal that her previous sponsored relationships ended because they were not real relationships in the sense that they did not do things together. She said after her relationship with Mr Gou ended she was single for 11 years because she did not want to marry and have the same problem. She said she and the applicant grew up in similar environments and they do things together. The sponsor explained that she had previous hip surgery however one of her legs is now longer than the other. She said she had a fall when she was 9 years old and when she was 48 years old her hip problems started. She had surgery in 2013 however she needs another hip replacement. This surgery is likely to occur in late 2024 or early 2025. She is waiting for her private health insurance to cover the costs. The Tribunal referred the sponsor to her Movement Details as recorded by the Department. This record shows she has departed Australia at least twice a year since 2014 until 2019. The sponsor said she visited her mother in China twice a year until 2019. Her mother lives in China. She has a sister in America and her son lives with her in Australia. She has no other family. Her son relocated from Sydney to live with her so he could look after her. In response to the Tribunal asking whether she would relocate to China if the applicant’s visa is not granted, the sponsor said if she had no choice then she would go with him. She said she would have to register for a new mobile phone because she has expressed opinions which may cause the Chinese government to detain her. She said she fears for her safety because people from Hong Kong have been detained and it may or may not happen to her. The sponsor said she is also fearful of going to China because she falls sick when she travels there and referred to oral cavities and COVID-19 because she is not vaccinated. The Tribunal asked the sponsor how she and the applicant financially support themselves. She said she runs brothel businesses and she receives some income from the businesses. She said she owns 6 properties from which she receives rental income. She said she purchased 4 of the properties and the applicant purchased 2 of the properties however they are all in her name. The sponsor said only one of the properties is mortgaged. She said they also live off the applicant’s substantial savings.

Decision

Reasons for decision

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 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 820.221(4) of Schedule 2 to the RegulationsChristine KannisMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made. The issue in the present case is whether is whether the sponsorship limitations apply in this case, and if so, whether there are compelling circumstances affecting the sponsor for not applying the limitation requirements.Are the sponsorship requirements met? Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211 (2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations). At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016. The Tribunal has no adverse information before it relating to the identity and age of the sponsor. Similarly, the evidence does not highlight any criminal activity by the sponsor. On the evidence the Tribunal is satisfied that the visa applicant meets cl. 820.211 (2)(c). Under reg 1.20J , a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of five years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J (2).