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 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).
The applicant is a Chinese national.
The sponsor was granted Australian citizenship in 1998. She has declared three previous partner relationships. She sponsored two of her previous partners to Australia. The visa applications were made on 19 April 1996 and on 21 June 2015. The sponsor’s previous sponsored relationships ended when she divorced her second husband (Mr Xu Chen who was granted a Subclass 100 visa on 12 July 1999) in 2001 and ended the relationship with her other sponsored partner (Mr Hansheng Guo) in 2016 before they married. Therefore the sponsor is affected by the sponsorship limitation set out in reg 1.20J(1)(a). As noted, reg 1.20J(2) provides that, despite reg (1), the Minister, or the Tribunal on review, may approve the sponsorship if satisfied that there are compelling circumstances affecting the sponsor.
The applicant and the sponsor claim to have met on 21 October 2016. They were married on 28 May 2017. The applicant and the sponsor do not have a child together.
In response to the Department advising that the reg 1.20J(1)(a) requirement could be waived upon consideration of compelling circumstances affecting her, the sponsor provided the following information in 2018 as compelling circumstances:
- The applicant was attacked in October 1997 and has damage to his cervical and neck areas.
- Her previous married life was full of suffering. Her first husband was unfaithful and the marriage ended. She was single for 10 years.
- In March 2013, she had a hip replacement and she was lonely and needed a companion. She joined an online introduction website and met Mr Guo. She travelled to China to meet him twice and found him suitable so she sponsored him for a visa.
- In June 2015, she sponsored her previous fiancé, Mr Guo, for a Subclass 300 visa which was approved in 2016.
- She and Mr Guo lived together in Australia. She had been hurt before so she was more careful before marrying. She found many problems during the 2 months they cohabited including deletion of electronic messages which made her suspicious. He did not bear any financial or housework responsibility and treated the home as a hotel. She was highly disappointed and decided not to marry him and withdrew her sponsorship.
- She was in need of a true and dedicated married relationship and does not wish to be cheated or harmed in love again. She has found true love with the applicant. They were staying together on a long term basis. The relationship commenced in 2016 and is long standing.
- She would suffer more difficulties if the applicant is not allowed the visa to stay in Australia.
- She was careful not to misuse the process in her previous sponsorship of Mr Guo. She did not immediately marry him and when she found him not suitable she withdrew her sponsorship.
Evidence provided at the hearing
Prior to the hearing, the applicant provided several photographs described as “Jing Xu and Sponsor Ai Photos together 2017, ” “photos 2018 to 2022”, “Xu and Ai Photos 2022,” and “recent photos together 2023”.
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 hearing
Applicant’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.
In response to the Tribunal asking what would become of the businesses if she relocates to China, the sponsor said her son could run them, which she said would essentially mean just paying the bills. She said she wants to end the businesses but her employees don’t want the businesses to cease and they can manage them.
The sponsor said the three compelling circumstances in her case are her fear of becoming sick if she lives in China, her fear that her phone may cause her to be detained and her hip problems.
Zhou Cao’s evidence
Mr Cao told the Tribunal that the applicant and the sponsor love and need each other. He said the sponsor needs the applicant mentally and physically. He said she is not that mobile and she needs someone to take care of her when he is not around. He said he currently assists with driving her around and carrying her groceries. He said her hip condition has worsened and she will have hip replacement surgery once it is covered by insurance.
Representative’s submissions
The representative submitted that the sponsor’s online posts, even if deleted, could still be retrieved by the Chinese government and therefore she could be in danger.
The Tribunal noted that there was no evidence of the claimed posts that would place the sponsor’s safety at risk or the basis for claiming that any posts would result in the sponsor being in danger if she travelled to China. Accordingly, the Tribunal allowed the representative 7 days following the hearing to make further submissions.
Post hearing submissions
Following the hearing, the Tribunal received legal submissions in respect of the applicable law and compelling circumstances.
The legal submissions contended that reg 1.20J(1A) only affects partner applications lodged from 1 November 1996 until the present day, and as sponsorship of sponsor’s second husband occurred before the legislation took effect that sponsorship does not count for the purposes of reg 1.20J(1A).
The representative made the following submissions in relation to compelling circumstances:
·The sponsor was not careless, but was disappointed and hurt: She had sponsored Mr Guo in 2015 on a Subclass 300 visa however the relationship failed due to an unacceptable high degree of indifference and uncaringness on the part of Mr Guo after he entered Australia, who had not shown this type of behaviours when the sponsor was in China with him. When considering a waiver of the limitation under 1.20J(2), account should be taken whether the sponsor was acting carelessly. The sponsor had not been careless with the visa system and did not proceed to marriage after she found the change in attitudes towards her by Mr Guo.
·Difficulty in Australia: The letter from the GP and photos of the sponsor’s last hip replacement consequences necessitate a new operation soon. The standing photos were taken in a few seconds and could not represent her state of wellness at other times. The applicant, and the sponsor’s son are looking after her in Australia, but in his evidence the son said he was there to help “too”, as an additional helper with the driving and heavy shopping carrying. The son said he could be away in the future. In any event, the son cannot be viewed as a replacement of the applicant.
·Difficulty in sponsor’s life if they were to live in China: The sponsor submitted to the Tribunal that she would suffer great difficulties if she were to return to China with the applicant but said if he returns, she would too. She expressed grave concerns of the uncertainty that she would face if she were in China. Mainly, she had a lot of social media posts in her phone (downloaded by her or posted by herself) that were critical of the current government, so she thought that a prevention should be to delete the phone history or even change her phone. In fact, that such efforts would be futile when faced with China’s formidable online police forces. Also, she mentioned two recent Australians Mr Cheng Lei and Dr Hengjun Yang, who suffered imprisonment in China for unjustifiable reasons. She is aware of many more other nameless victims from social media posts. The fear of government persecution of her, and the uncertainty whether it exercises this persecution power or not on her when she is living in Australia constitutes a compelling circumstance.
The following documents were also provided:
·Medical Certificate dated 12 February 2024 certifying that the sponsor has a medical condition and would occasionally need help from her husband and son for ADLs and to get to appointments.
·Photographs of the sponsor and various items described as assistive devices to maintain the sponsor’s daily routine.
The submissions included the following, described as submitted directly by the sponsor:
Question 1: China is an authoritarian country. Especially in the past few years, many people have had their passports cut off by customs officers when they were found guilty of speaking out, making it impossible for them to leave China in the future. When they treat Australian citizens, they will imprison you for no reason on unfounded charges, or treat you as if you are an Australian citizen. madman. Confined to a mental hospital. Because they will check your mobile phone and social media accounts when you go through customs. Examples include Twitter and YouTube. During the anti-extradition movement in Hong Kong in 2019, I have been following and caring about the young people in Hong Kong. This will be my evidence against the Chinese government. I would be thrown in jail or put in a mental hospital for no reason. I want to ask if I encounter any political problems. For example, what happened to the famous figures Yang Hengjun and Cheng Lei. How will the government ensure the personal safety of Australian citizens?
Question 2: My physical condition is very bad now. - Once I sit or lie down for a long time, my left leg becomes so weak and sore when I get up that I cannot walk on my own. My husband needed help to support me and I needed slow movement to relieve my symptoms. I need to do stretching exercises and massage therapy at home every day. It makes my body feel better. I need to see a specialist in August or later and may need a second hip surgery. Please give me a little help and sympathy for this disabled person.
Question 3: My husband’s mother and sister died one after another.
My husband doesn't have any relatives in China. Moreover, he sold his house in China and transferred the money to me in Australia. He paid most of the bank loan. If my husband and I returned to China, we would not have a house to live in, not even a piece of furniture. Isn’t this situation a bit inhumane to us?
The Tribunal has taken into account these submissions in its deliberations.
Consideration of the evidence.
Regulation 1.20J is concerned with preventing serial sponsorship. It allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'. In this provision the compelling circumstances must specifically affect the sponsor.
The expression ‘compelling circumstances’ is not defined in the legislation. Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
Unlike other instances where compelling circumstances must be considered in the Regulations, in the context of r.1.20J those circumstances must affect the sponsor. The legislative intention of this provision can be found in the Explanatory Statement which indicates that the Minister can approve sponsorships or nominations if ‘compelling circumstances’ exist. These include, but are not limited to:
- The previous spouses, de facto partner or interdependent partner has died;
- The previous spouse, de facto partner or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support;
- The new relationship is long-standing; or
- There are dependent children of the new relationship.

Other considerations include:
- The nature of the hardship/detriment that would be suffered by the sponsor if the sponsorship were not approved; and
- The extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.
In Nagaki v MIBP the Court identified particular circumstances which of themselves could not constitute compelling circumstances in the context of reg 1.20J:
·The genuineness of the relationship between the applicant and sponsor could not, in and of itself, constitute a compelling circumstance affecting a sponsor. The Court commented that, were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl 820.211(2)(a) would fall within the exception in reg 1.20J(2).[1]
·An applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa on the basis of being in a partner relationship for three years or longer within the definition of ‘long-term partner relationship’ in reg 1.03, cannot amount to a compelling circumstance affecting the sponsor for reg 1.20J(2). The definition of long-term partner relationship in reg 1.03 has no statutory relevance or application for the purposes of reg 1.20J(2).[2]
[1] Nagaki v MIBP [2016] FCCA 1070 at [58].
[2] Nagaki v MIBP [2016] FCCA 1070 at [69].
It is not in dispute that the applicant has two previous Partner visa sponsorship applications. The first was in 1996 where the sponsor sponsored Mr Xu Chen and the second was in 2016 when she sponsored Mr Hansheng Guo.
The Tribunal does not agree with the representative’s submission that reg 1.20J(1A) only affects partner applications lodged from 1 November 1996 until the present day and the sponsor’s first sponsorship is not to be counted for the purpose of this application. In the Tribunal’s view although the limitations in reg 1.20J only apply where the current visa application was lodged on or after 1 November 1996, any previous sponsorships (even if they occurred before that time) may count towards the limit, depending on the date of the current visa application. This is due to amendments to this provision over time and the definition of ‘relevant permission’ in reg 1.20J(1A).
The words “application for a visa” in the definition of “relevant permission” in reg 1.20J(1A) means the visa application currently under consideration (see Wu v MIBP [2016] FCCA 290 at [9] – [11]; followed in Jiang v MIBP [2016] FCCA 360 at [17]–[24]), rather than the previous visa applications. In the present case, the visa currently under consideration is the applicant’s visa application made on 23 June 2017 . As this visa application was made on or after 1 July 1997, the definition of “relevant permission” in reg 1.20J(1A)(b) (i.e. a visa, entry permit or a permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia) applies. This means that if more than one other person has been granted a “relevant permission” as the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination, then reg 1.20J(1)(a)(i) is not met, even if the grant of the “relevant permission” occurred before 1 November 1996.
The sponsor’s second husband, Mr Xu Chen, was granted a permanent visa on 12 July 1999 and the Tribunal finds that he was granted a relevant permission by way of a visa or an entry permit following her sponsorship of him to Australia. Applying Wu, the Tribunal finds that the sponsorship of Mr Xu Chen is counted for the purposes of reg 1.20J.
Accordingly, on the basis of the evidence before it the Tribunal finds that the sponsor has sponsored two previous partners for entry to Australia in addition to the current sponsorship of the applicant and therefore the provisions of reg 1.20J(1)(a) are not met.
Given the Tribunal’s finding that sponsorship limitations apply, the Tribunal therefore considered whether there are compelling circumstances affecting the sponsor such that the sponsorship can be approved (in accordance with reg 1.20J(2)).
When asked about compelling reasons, the sponsor told the Tribunal that her three main problems if she returns to China are that she needs assistance because of her hip condition, that she is at risk of becoming unwell and that she is at risk of being detained by the Chinese government. In contrast to what was contended in the representative’s post hearing submissions, she did not say she would have any difficulty living in China. In her post hearing submissions the sponsor said if she and the applicant return to China, they would not have a house or furniture. The sponsor’s evidence at hearing was that they financially support themselves from rental income from 6 properties, the sponsor’s savings and business income. The sponsor did not claim any financial difficulty would arise if she and the applicant returned to China and there is no evidence to indicate that this would occur.
In relation to the sponsor’s evidence that apart from the care she requires, the compelling circumstances affecting her are that she is at risk of illness or detention by the Chinese government if she travels to China, the Tribunal finds that these risks have not been established. No evidence to support the contention that the sponsor is at risk of becoming ill in China was provided. The representative’s post hearing submissions regarding the risk of persecution by the Chinese government referred to the imprisonment of Mr Cheng Lei and Dr Hengjun Yang. No evidence of the sponsor’s social media posts or their similarity to the cases of Mr Cheng Lei and Dr Hengjun Yang was provided. The Tribunal does not find this information persuasive in relation to the sponsor’s specific circumstances and is not satisfied, based on the evidence and the submissions, that the sponsor is at risk of persecution in China. The Tribunal does not find that the claimed risks constitute compelling circumstances.
In relation to the sponsor’s claim that she requires the applicant to remain in Australia to provide care because of her hip condition, the Tribunal notes the Medical Certificate refers to her needing care occasionally. In addition, the evidence was that she would undergo hip replacement surgery within the next 12 months which will rectify the problem and presumably this surgery can be undertaken in China. The Tribunal does not find that the sponsor’s hip condition is a compelling circumstance.
The Tribunal has considered the evidence provided by the applicant that he is in a long standing spousal relationship with the sponsor and that this should be considered as a compelling circumstance. Some of the evidence submitted pointed primarily to the purported genuineness of the relationship. This evidence included bank statements, photographs and oral evidence at the hearing. The Tribunal makes no specific findings as to the genuineness or otherwise of this relationship noting that the grounds for refusal was based on reg 1.02J(1)(a). The Tribunal accepts that the applicant and the sponsor have been married for nearly 7 years however, the existence of a genuine relationship does not constitute compelling circumstances that justify the warrant of a waiver of the bar on sponsorship in this situation. This is because a genuine relationship forms the basis of all partner visa applications. The Tribunal finds that this relationship will not be placed in difficulties should the applicant need to relocate back to his home country as the sponsor can also relocate as an Australian citizen to China, where he mother also resides.
The Tribunal found the sponsor and the applicant to be genuine, honest and articulate witnesses at the hearing.
The Tribunal accepts the parties’ evidence that should the applicant’s visa be refused on the basis of not meeting the sponsorship requirement, then the sponsor, although she does not have to depart Australia, will be compelled to travel to China to remain with her husband of 7 years. The Tribunal notes that the sponsor arrived in Australia in 1992 and was granted Australian citizenship in 1998. The Tribunal considers the relocation of the sponsor to China after decades of residing in Australia as an Australian citizen in order to remain with her husband, in a relationship the Tribunal accepts is long-term, represents a significant hardship that justifies the Tribunal’s use of the waiver.
Accordingly, the Tribunal is satisfied that there are compelling circumstances affecting the sponsor such that the sponsorship should be approved. Therefore, cl.820.221(4) is met and the sponsorship is ongoing.
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 Regulations
Christine Kannis
Member