Yuan (Migration)

[2024] AATA 3638

Yuan (Migration) [2024] AATA 3638 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jo-Kang Yuan

REPRESENTATIVE:  Mr Thomas Edmond Meagher

CASE NUMBER:  2113505

HOME AFFAIRS REFERENCE(S):          BCC2019/6207185

MEMBER:Tegen Downes

DATE:4 April 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(d)

Statement made on 04 April 2024 at 4:45pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – bridging visa later granted in association with another review application – compelling reasons for not applying criteria – genuine relationship and hardship if required to apply outside Australia not themselves compelling – sponsor’s and young adult son’s mental health and dependence on applicant – emotional and financial support – detailed and sincere evidence – cumulative factors – decision made without hearing required – decision under review remitted

LEGISLATION
Migration Act 1994 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d), Schedule 3, criterion 3001

CASES
Al Souhmarani v MIBP [2016] FCCA 2866
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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 November 2019 based on 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(d) of Schedule 2 to the Regulations. The applicant did not hold a substantive visa at the time of application and the delegate found that the applicant did not satisfy the Schedule 3 criteria and there were no compelling reasons for not applying those criteria.

4. The applicant was represented in relation to the review. The representative filed written submissions dated 30 May 2023, 7 March 2024, and 3 April 2024, in addition to supporting witness statements and documentary evidence.

5. I did not invite the applicant to attend a hearing to give evidence and present arguments because I decided that I should decide the review application in the applicant’s favour based on the information before me, in accordance with s 360(2)(a) of the Act.

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

   ISSUE AND LAW

7. 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).

8. The issue in the present case is whether the applicant meets the Schedule 3 criteria, or whether there are compelling reasons for not applying those criteria.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. The applicant is a 41-year-old man from Taiwan. He has applied for the visa that is the subject of this review application based on his relationship with his wife, a 51-year-old Australian citizen who was born in China. The sponsor is once divorced, with two adult children from her first marriage, aged 26 years and 23 years.

10. The applicant arrived in Australia in November 2011 on a Temporary Working Holiday visa. He has remained in Australia since this time, initially on an extension to his working holiday visa and then on a student visa, which expired on 27 October 2016.

11. Before the expiry of his student visa, the applicant applied for a further student visa, which was refused in January 2017. He then remained in Australia unlawfully for approximately four months before applying for a [visa] in June 2017. The department refused to grant the [visa] in July 2017. The applicant applied for a review of that decision before the Tribunal. The Tribunal (differently constituted) affirmed the department’s decision in June 2023.

12. At the time the applicant applied for the visa that is the subject of this review application, he held a bridging visa associated with his [visa] review application. He continues to hold a bridging visa, pending the outcome of this review application.

    Does the applicant meet the schedule 3 criteria?

13. It is not in dispute that the applicant did not have a substantive visa at the time he applied for the visa that is the subject of this review. He also did not enter Australia as the holder of a Subclass 995 visa or special purpose visa.

14. Accordingly, the next issue to be determined is whether the applicant satisfies 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) of Schedule 2 of the Regulations.

15. 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.

16. In this case, the relevant day was the last day when the applicant held a substantive or criminal visa, being 27 October 2016 when the applicant’s student visa expired. As the visa application was made some more than three years’ later, the applicant does not meet the relevant Schedule 3 criteria.

    Are there compelling reasons for not applying the Schedule 3 criteria?

17. The expression ‘compelling reasons’ in cl 820.211(2)(d) is not defined in the Act or Regulations. However, according to jurisprudence, 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].

18. 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.

19. Ultimately, whether the circumstances are ‘compelling’ will be a matter of fact and degree for the Tribunal to determine. In doing so, the Tribunal is required to apply ‘his [or her] own mind to the issues raised’, engage with the materials for him or herself, evaluate them and to give them genuine consideration. A cursory consideration will not suffice: MZYPZ v MIAC [2012] FCA 478 at [19].

20. Further, it is relevant for the Tribunal to consider the purpose of the provision. In the context of cl 820.211(2)(d)(ii), that purpose is to deal with cases where there are compelling reasons for not putting particular applicants to the hardship of having to leave Australia to apply for a partner visa: Al Souhmarani v MIBP [2016] FCCA 2866 at [18].

21. The department’s policy indicates that, as a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship that may be suffered if the parties are separated and the applicant is forced to apply for a partner visa outside of Australia, should not of itself amount to compelling circumstances. However, this is not absolute, and the Tribunal must assess whether the circumstances as claimed by the applicant are a compelling reason.

22. I have carefully considered the applicant’s claims individually and cumulatively, as well as the supporting evidence provided. I am satisfied that there are compelling reasons for not applying the Schedule 3 criteria, namely:

    a.I accept based on the witness statements and medical evidence provided that the sponsor has a diagnosed mental health condition and that she is dependent on the applicant for support in managing her condition. There is a real risk that her condition could be significantly aggravated without the applicant’s onshore support.

    b.I accept based on the witness statements and medical evidence provided that the sponsor’s son has a diagnosed mental health condition. He also relies on the applicant for emotional and financial support. While there is no medical evidence to this effect, it is reasonable to assume that his condition could be significantly aggravated without the applicant’s onshore support.

    c.I accept based on the witness statements provided that the applicant, the sponsor, and the sponsor’s children are a close family unit. Although the sponsor’s children are adults, the applicant plays a significant role in their lives, which would be compromised if the applicant were required to depart Australia.

    d.I accept based on the witness statements and bank statements provided that the applicant provides material financial support to the sponsor and her children. It is likely that the applicant would be unable to maintain this financial support if he were required to leave Australia, which would result in substantial financial hardship for sponsor and her children.

23. I would not consider any of these matters alone to be sufficiently compelling. However, considering the claims cumulatively, and considering the detailed and sincere nature of the evidence provided by witness statements, I consider it appropriate to waive the Schedule 3 criteria.

24. 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

25. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(d) of Schedule 2 to the Regulations

    Tegen Downes
    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.