YAN (Migration)

[2018] AATA 4493

YAN (Migration) [2018] AATA 4493 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Jun Yan

CASE NUMBER:  1708521

DIBP REFERENCE(S):  BCC2016/4017757

MEMBER:Hugh Sanderson

DATE:2 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 October 2018 at 9:27am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – no substantive visa – Schedule 3 criteria – applicant not employed – financial support from parents – compelling circumstances – care for sponsor’s family – applicant’s previous visa – ceased study – availability of courses interstate – ability to travel to visit sponsor – desire to live with sponsor – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
SZOXP v MIBP FCAFC 69
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 3 April 2017 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 28 November 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found that the applicant did not hold a substantive visa at the time of the application and did not satisfy the Schedule 3 criteria. Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.

   Background

4. The applicant is a citizen of China and is currently 26 years old. Her parents and sister continue to live in China. She first arrived in Australia in 2008 on a Student visa. She has returned to China on two occasions since then, the first time in June 2010 and the second time in January 2014. The last substantive visa the applicant held was a Student visa which was cancelled on 17 June 2016 as the applicant had not been enrolled in a course of study since 2 December 2014. After the cancellation of her visa, the applicant remained in Australia as an unlawful non-citizen until filing the current application.

5. The sponsor of the applicant is Shuairen Wang. He was born in China and is a Chinese citizen. He is currently 27 years old. He first entered Australia in 2008 on a Student visa. He was granted a Subclass 309 Partner (Temporary) visa as a member of the family unit of his mother who was the primary visa applicant. He was granted a Subclass 100 Partner (Residence) visa on 14 May 2012. He now has the right to reside permanently in Australia.

6. Since being granted the right to reside permanently in Australia, the sponsor has travelled out of Australia as follows:

   ·From 4 December 2012 to 29 December 2012; and

   ·From 8 May 2015 to 21 May 2015.

7. The parties claimed that they first met each other in October 2009 when they were studying at the same institution. They claimed that a relationship developed between them and on 18 August 2012 they started living together in rented accommodation in Chatswood. In November 2013 they claimed to have moved together to live in Canberra. The parties were married on 4 June 2016.

8. The Department noted that the applicant did not hold a substantive visa at the time of the application and invited the applicant to provide compelling reasons for not applying the Schedule 3 criteria. The applicant provided a statement where the following was claimed:

   ·The applicant had a sudden weight increase at the beginning of 2015 and as a result was too embarrassed to go to school and took various self-help medication to try to lose weight;

   ·In November 2015 she saw a GP but continued to have weight gain problems;

   ·The applicant will be referred to a specialist; and

   ·The applicant does not want to go back to China because Australia has better medical technology and she has been in Australia since 2008 and is now used to the food and living environment.

9. The delegate who considered the application noted the following issues:

   ·As the applicant’s last substantive visa was cancelled on 17 June 2016 this was more than 28 days prior to the filing of the application and accordingly the applicant did not meet criterion 3001 of the Schedule 3 criteria;

   ·The health issues and medical records do not indicate that the applicant was unable to study or make arrangements to return to China at any time;

   ·There is little information as to any continuing medical issue suffered by the applicant or that any condition she did suffer was severe or debilitating;

   ·There is no evidence of any claimed depression and any medication she has been receiving can be obtained in China; and

   ·The situation where people in a genuine relationship are separated for a period of time while an offshore visa application is assessed is the usual situation for all people where an offshore Partner visa application is filed and is no different to the circumstances of the applicant and the sponsor.

10. Taking these matters into account the delegate found that the applicant did not satisfy the Schedule 3 criteria and was not satisfied there were compelling reasons for not applying those criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.211(2)(d) and refused the application.

    Information to the Tribunal

11. The applicant appeared before the Tribunal on 27 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicant provided details of where she and the sponsor had been living. She said that she had never worked in Australia and was supported by the sponsor who was working as a painter.

13. The applicant said she stopped studying in Australia in 2014. She said that after she and the sponsor moved to Canberra she found it impossible to transfer her studies from Sydney to Canberra and too difficult to continue her studies in Sydney. She said that for a period she returned to live in Sydney to continue her studies, but wanted to live with the sponsor and so returned to live in Canberra. She could not remember the exact dates of when she was living in Sydney or when she stopped studying.

14. The applicant claimed that she did not complete her course as she fell sick and was suffering from depression.

15. The applicant said that her parents and younger sister continue to live in China. She said that her parents supported her while she was on a Student visa and sometimes continue to provide financial support for her and the sponsor. She said that her parents run their own business and she last saw them when she returned to spend time with them in January 2014.

16. The applicant said that she was not on any medication. She was taking folic acid as advised by her doctor as she was hoping to fall pregnant. Prior to this, she was taking contraceptive medication to control her other condition, however, as she wanted to fall pregnant she has gone off the contraceptive pill. The applicant said that she has never been referred by her doctor or seen at any time in Australia a counsellor or psychologist for depression or any other condition.

17. The applicant said the sponsor returned to China in 2015 to spend time with his biological father in China. She said the sponsor’s mother provides financial assistance to them.

18. The Tribunal invited the applicant to provide any compelling reasons for not applying the Schedule 3 criteria. She said that when her Student visa was cancelled in 2016 she and the sponsor had already decided to get married. She said that if she were required to file an offshore Partner visa application she would have to be away from the sponsor for a long time and he needs her to look after him as he is a fussy eater, not liking vegetables. She said that they had been trying to have a baby. She said that it would be difficult for them to find work if they both went back to China and he needs to look after his mother and brother in Australia.

19. The sponsor gave evidence in support of the application. He said that the home in which he and the applicant lived is in a family trust in the name of his mother and his mother, brother and he are on the mortgage details.

20. The sponsor gave details of the applicant ending her study, claiming that she ceased study about six months after they moved to Canberra. He said that for a couple of months the applicant was living in rented accommodation in Sydney so that she could continue her studies but did not like being separated from him so returned to Canberra.

21. The sponsor said that the applicant has never seen a psychologist or counsellor and would only go and see the doctor if she was sick. He said that he could not remember the last time she went to see her general practitioner, but thought that it would be a few months ago.

22. The Tribunal invited the sponsor to provide any compelling reasons for not applying the Schedule 3 criteria. He said that they were married before the applicant’s Student visa was cancelled. He said that even though she was not studying they had checked with a lawyer to see if she still had a substantive visa. He said that it was not that she did not want to study in Australia, it was just that travel to Sydney was too difficult and she could not study in Canberra so it was not their problem.

23. The sponsor said that they applied for the Partner visa so that the applicant would not have to leave Australia. He said that if the applicant were required to go back to China it would impose great difficulty on him to live without the sponsor because it is well known that Australians are not efficient people and so the delay would be too great. He said that they were in love and so the visa should be granted to the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and, if she does not, whether there are compelling reasons for not applying those criteria.

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

26. 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).

27. 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.

    Criterion 3001

28. 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). In the circumstances of the applicant, the relevant day is the last day when the applicant held a substantive visa.

29. The applicant’s last substantive visa was cancelled on 17 June 2016. This is more than five months prior to the filing of the Partner visa application.

30. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

31. 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.

32. 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.

33. The applicant’s visa was cancelled by the Department on 17 June 2016. The reason for the cancellation was that the applicant had not been enrolled in any course of study since December 2014. The evidence of the parties was that the applicant had ceased all study not later than June 2014. It was a condition of the grant of the Student visa to the applicant that she continue to be enrolled in the course of study and be studying. There is no information which would indicate that at any time after the applicant ceased studying that she engaged with the Department or made any representations to them as to why she was failing to comply with her Student visa by not being enrolled in any course of study or be studying.

34. The claims that have been made as to why the applicant did not hold a substantive visa were that she could not continue to study due to depression and a medical condition which caused her to put on weight, as well as claiming that she could not find any course to be enrolled in Canberra when she moved away from Sydney.

35. Although the applicant has provided information as to the condition she suffered, there is no information which would indicate that she was suffering from depression or any mental or other incapacity which would have prevented her from continuing to study or comply with the conditions of the Student visa. She was able to return to China to spend time with her family immediately prior to her ceasing any study. As set out above, there is nothing to indicate that she engaged with the Department or provided any information to the Department as to why she was not able to comply with her Student visa. The Tribunal does not accept that any attempts were made by the applicant to transfer to any course of study in Canberra. The Tribunal does not accept the fact that the Department cancelled the applicant’s visa 13 days after the applicant and the sponsor were married provides any explanation as to why the applicant did not hold a substantive visa at the time of the application when she had not complied with the conditions of her Student visa for over two years.

36. When considering all the circumstances of the reason why the applicant did not hold a substantive visa at the time of the application, the Tribunal is not satisfied that they provide a compelling reason for not applying the Schedule 3 criteria.

37. There is no information before the Tribunal that the applicant would face any difficulty if she were required to return to China. She has returned to China over the period that she held a Student visa. Her parents and sister continue to live in China. She has received financial support from her parents over the period that she held a Student visa, and continues to receive some financial support from them. There is nothing to indicate that they would not continue to provide some financial support for her if she returns to China. They have their own business and there is no information which would indicate that they have any difficulties in continuing to live in China. The applicant does not work in Australia and it may prove difficult for her to obtain employment in China. The Tribunal finds, however, that she would continue to receive financial support from her parents if necessary.

38. The applicant was taking the contraceptive pill in order to control the medical condition she suffers from. She has ceased taking the contraceptive pill now that she is hoping to fall pregnant to the sponsor. She was advised by her doctor to take folic acid. If the applicant were required to return to China she would have access to the contraceptive pill and folic acid if she should so choose.

39. The Tribunal is not satisfied that any of the conditions the applicant would face in China if she were required to file an offshore Partner visa application provide a compelling reason for not applying the Schedule 3 criteria.

40. The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.

41. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has considered all the aspects of the relationship, including the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed when considering if there are compelling reasons for not applying the Schedule 3 criteria.

42. It is claimed that the parties are in a long-standing relationship and this provides a compelling reason for not applying the Schedule 3 criteria. This submission relies upon, in part, the Explanatory Statement to the Regulations. The Explanatory Statement, providing examples of compelling reasons, states:

    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).

43. The Tribunal is required to apply the legislation which states that it must be satisfied there are compelling reasons for not applying the Schedule 3 criteria. As is stated in SZOXP v MIBP FCAFC 69 at [14]:

    Context, such as legislative history or extrinsic materials, is a guide to the meaning of the statute but it “cannot displace the meaning of the statutory text” and it is the meaning of the statutory text which is where the task of statutory construction begins and ends: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2013) 250 CLR 503, 519.

44. The explanatory statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties have upon each other and all other relevant factors must be considered. As is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.

1. The parties claimed to have started living together in 2012 in Chatswood and moved to Canberra in November 2013. There is little independent information of any combined affairs or any other aspects of the claimed relationship apart from the statements of the parties and some of their friends. It appears that one of the primary reasons the applicant ceased her study in Sydney was because she wanted to live with the sponsor in Canberra.

2. Over the course of their claimed relationship the applicant returned to spend time with her parents in China for a month commencing 14 January 2014. This indicates that the applicant is able to spend extended periods of time away from the sponsor. The sponsor also travelled overseas for about two weeks in May 2015. There is no information which would indicate that over these periods of separation the applicant or the sponsor suffered any detriment.

3. The applicant claims that she suffers from a medical condition and depression and is dependent upon the sponsor. There is no independent information to support this. Although she claims to have suffered from depression, she has not sought access to or been referred by her doctor to any counselling service or psychologist. She claims that as the sponsor is very busy, she is required to look after him. This does not indicate that the applicant is dependent upon the sponsor for any emotional support for any claimed depression or is not able to care for herself. As indicated above, the applicant has never been required to take antidepressants or any other medication as a result of any claimed depression she suffers. If the applicant were required to return to China to file an offshore Partner visa application there is no information which would indicate that she would not be able to access appropriate medical services in China and would also have the support of her family to address any depression or any other condition.

4. The applicant and the sponsor have received financial support from the sponsor’s mother in Australia as well as receiving some financial support from the applicant’s parents in China. There is nothing to indicate that this support would not continue for the sponsor if the applicant were required to return to China to file an offshore Partner visa application. The sponsor works full-time and is not dependent upon the financial support of the applicant at all.

5. There is no reason why the sponsor would not be able to travel to China to visit the applicant while any offshore Partner visa application is being assessed. He has returned to China previously and his biological father remains living in China. As he is a citizen of China, there is nothing to stop the sponsor from living with the applicant in China while any offshore Partner visa application is being assessed. If he decides to remain residing in Australia, as is the usual situation for sponsors of offshore Partner visa applications, there is nothing to stop him from travelling to China to spend time with the applicant if he should so choose.

6. The Tribunal has considered all the circumstances of the relationship between the applicant and the sponsor, including its claimed length, the degree of love and devotion the parties have for each other, their financial arrangements and the living arrangements the parties have put in place for themselves. The Tribunal is not satisfied that any aspect of the relationship of the parties provides a compelling reason for not applying the Schedule 3 criteria.

7. The Tribunal has assessed the circumstances of the applicant and the sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that the individual circumstances of the parties and in particular the claims made by the parties when considered on an individual basis provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal is not satisfied that when considered in combination the total circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria.

8. 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). There is nothing before the Tribunal to indicate the applicant would meet any of the alternate criteria in cl.820.211.

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

   DECISION

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

    Hugh Sanderson
    Member