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

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).
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).
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.
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.
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.

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 Yuan (Migration)

Details

AGLC: Yuan (Migration) [2024] AATA 3638
Case: [2024] AATA 3638
Decision Date: 4 April 2024

CaseChat Overview and Summary

The applicant, a 41-year-old man from Taiwan, sought review of a decision concerning his application for a Partner (Temporary) (Class UK) visa, Subclass 820. The central dispute revolved around whether the applicant met the Schedule 3 criteria for the visa, or if there were compelling reasons for these criteria not to be applied. The applicant had remained in Australia after his last substantive visa expired in October 2016, and his subsequent visa application was made more than three years later, meaning he did not meet the 28-day requirement of Schedule 3 criterion 3001. The matter was heard by Tegen Downes.

The court was required to determine two primary legal issues. Firstly, whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3001, which mandates that an application be lodged within 28 days of the relevant day, defined as the last day a substantive visa was held. Secondly, if the applicant did not meet this criterion, the court had to consider whether there were "compelling reasons" for the Minister to be satisfied not to apply these criteria, as permitted by clause 820.211(2)(d) of Schedule 2 of the Regulations.

The court found that the applicant did not meet the Schedule 3 criteria because his application was lodged significantly outside the 28-day timeframe. However, the court considered the meaning of "compelling reasons" as established in jurisprudence, requiring circumstances sufficiently powerful to drive a decision-maker to a particular conclusion. While the applicant presented evidence of his sponsor's and young adult son's mental health issues and their dependence on him for emotional and financial support, the court determined that these factors, in themselves, were not sufficient to constitute "compelling reasons" to waive the Schedule 3 criteria. The court noted that the decision under review was made without a hearing.

Consequently, the Tribunal remitted the application for the Partner (Temporary) (Class UK) visa, with a direction that the applicant meets criterion 820.211(2)(d) of Schedule 2 to the Regulations, allowing for further consideration of the remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEBackground 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. 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. 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. 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? 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. 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. 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. 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? 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].

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 820.211(2)(d) of Schedule 2 to the RegulationsTegen DownesMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.

Ratio Decidendi

Legal Principle Established

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 RegulationsTegen DownesMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.