Yuan (Migration)

[2024] AATA 207

Yuan (Migration) [2024] AATA 207 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Liying Yuan

REPRESENTATIVE:  Mr Gangliang George Li (MARN: 0005687)

CASE NUMBER:  1929769

HOME AFFAIRS REFERENCE(S):          BCC2014/3171894

MEMBER:Stephen Witts

DATE:6 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa

Statement made on 06 February 2024 at 9:08am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – sponsorship limitation – two previous sponsorships resulting in grants of visas – applicant departed Australia intending to return but bridging visa cancelled – relationship now ceased – no appearance at hearing – sponsor’s health and medical reports – no compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J(1)(a), Schedule 2, cl 820.221(4)

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 on 14 October 2019 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 November 2014. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant met the requirements of Subclause 820.221(4) and the sponsorship limitations outlined in Regulation 1.20J (limitation on approval of sponsorships-spouse, partner, prospective marriage and independency visas) and that the applicant did not demonstrate compelling circumstances affecting the interests of the sponsor.

3. The Tribunal notes that on 1 August 2022 it contacted the applicant’s representative stating that the Tribunal’s records indicated that the applicant had departed Australia and requested the applicant’s representative to confirm that the applicant wishes to continue with the application for review, and, if so, to ensure that the applicant is informed of this, and to provide updated contact details.

4. The Tribunal notes that on 15 August 2022 the applicant’s representative responded to the Tribunal on behalf of the applicant informing the Tribunal that the applicant departed Australia on a Bridging visa A and had intended to come back to Australia but could not because, it was stated, her visa had been cancelled.

5. The Tribunal notes that the applicant was invited on 8 November 2023 to a video conference on 6 February 2024 to hear the application.

6. On 14 December 2023 the applicant’s representative contacted the Tribunal requesting a postponement because, he stated, the applicant was living in Hong Kong and that they would like the hearing to be scheduled from mid-April 2024. The Tribunal considered this matter carefully noting its obligations to provide hearing opportunities to the applicant that are timely and appropriate, and noting also that the hearing was a video conference in any case, and on that basis refused the request for a postponement.

7. The Tribunal further notes that on 5 February 2024, the afternoon before the hearing, the applicant’s representative contacted the Tribunal via email stating that he would not be attending the hearing to appear for the applicant as he has not been able to contact her on the phone and that she has not replied to his messages. He also stated that he has been in contact with her sponsoring husband in Australia, Mr Zhong, and that he informed him that due to the lengthy periods of time that they have lived apart after the applicant’s bridging visa was cancelled that they have not continued with their relationship and that he is not prepared to attend the hearing.

8. The Tribunal considered this matter carefully and decided to cancel the hearing at the applicant’s representative’s request and make a decision on the material before it.

9. On that basis on 6 February 2024 at 8:51 AM the Tribunal contacted the applicant’s representative cancelling the hearing.

10. The Tribunal made this decision after very careful consideration noting that the applicant was invited to attend a hearing in the appropriate manner and the Tribunal is satisfied that every effort has been made to contact the applicant via her nominated contact points and that the applicant’s representative, as the applicant’s nominated and specified representative, has provided the above submission. On that basis the Tribunal has decided to proceed to make a decision on the material before it as outlined below.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant, Ms Liying Yuan, satisfied the requirements of Subclause 820.221(4) and the sponsorship limitations outlined in Regulation 1.20J (limitation on approval of sponsorships-spouse, partner, prospective marriage and independency visas) and whether the applicant demonstrated compelling circumstances affecting the interests of the sponsor, Mr Jin Zhong.

    Subclause 820.221(4)

    (4) If paragraph 820.211(2)(c), (5)(f) or (6)(c) requires the applicant to be sponsored:
    (a) the sponsorship has been approved by the Minister and is still in force; and
    (b) the sponsor has consented to the disclosure by the Department, to each applicant included in the sponsorship, of any conviction of the sponsor for a relevant offence (within the meaning of subregulation 1.20KC(2)).

    Regulations 1.20J, 1.20KA, 1.20KB and 1.20KC limit the Minister's discretion to approve sponsorships

    Subregulation 1.20J

    (1) Subject to subregulations (2) and (3), if a person applies for a visa mentioned in subregulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:

    (a) not more than 1 other person has been granted a relevant permission as:

    (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or
    (ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and
    (b) if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) — not less than 5 years has passed since the date of making the application for that relevant permission; and
    (c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination — not less than 5 years has passed since the date of making the application for that relevant permission.

    Further, for applications made on or after 1 November 1996:

    At most, a person may enter into 2 approved spouse, de facto partner, interdependent partner or prospective spouse (fiancé) sponsorships (reg. 1.20J(1)(a))
     Even if regulation 1.20J(1)(a) is met, a person who has sponsored/nominated a person as a spouse, de facto partner, prospective spouse or interdependent partner cannot have another sponsorship approved under any of these visa categories until at least 5 years after the first visa application was made (reg. 1.20J(1)(b))

    Persons who themselves have been sponsored/nominated as a spouse, de facto partner, prospective spouse or interdependent partner cannot sponsor a partner under any of those visa categories until at least 5 years after their own visa application was made (reg. 1.20J(1)(c)).  

13. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

14. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record dated 14 October 2019 by the applicant.

15. According to the delegate the applicant applied for Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visas on 24 November 2014.

16. According to the delegate it assessed that departmental records confirmed that the sponsor had two previous sponsorships which were commenced on 20 December 1996 and 8 March 2004 and that both sponsorships had resulted in the grant of a partner visa. It stated that it therefore decided that regulation 1.02J(1)(a) was not met. It also noted that although the sponsor did not satisfy this regulation that the sponsorship may be approved if it is established that there are compelling circumstances affecting the sponsor.

17. According to the delegate it asserted that compelling circumstances affecting the interests of the sponsor may include such things as the applicant and her sponsor having a dependent child, or the previous spouse has died, or that the previous spouse has abandoned the sponsor, or that there are children dependent upon the sponsor requiring care and support.

18. According to the delegate’s decision the applicant was informed on 18 January 2019 that the application was affected by sponsorship limitations and was invited to provide any compelling reasons she wished to be considered to have the sponsorship limitation waivered.

19. According to the delegate the applicant provided some material including a submission from the applicant stating that the sponsor suffers health issues. These health issues were stated as being the sponsor suffered from a cholesteama near his ear and underwent an operation to remove it in May 2014 and that in February 2015 he needed a further operation to remove the residual cholesteama and that this was considered life-threatening. It was also stated that this caused the sponsor to suffer some form of memory loss which required assistance from the applicant.

20. According to the delegate it considered this submission and the material provided regarding the health condition suffered by the sponsor including reports provided from a health care provider and from a doctor dated in April 2014 and in February 2015. According to the delegated it determined that the information of the sponsor’s medical history at that time does not support the claims of serious side effect that gives rise to compelling circumstances at the time of decision.

21. According to the delegate it also contended that the applicant submitted that the sponsor had only one sponsorship in the past that was subject to the 1.20J restriction. According to the delegate the sponsor sponsored his ex-wife, Ms Yueying Chen, on a visa application made on 20 October 1996 and therefore that sponsorship meets the requirements of the regulations in that it was made after 1 November 1996, as it was lodged on 20 December 1996 in accordance with the requirements of regulation 1.20J.

22. According to the delegate it considered the information provided stating that no evidence was provided as to whether there was anything that prevented the applicant from relocating to his country of origin, and therefore it was not satisfied that compelling circumstances existed to warrant the waiver of regulation 1.20J. On that basis the delegate made a finding that the applicant does not satisfy clause 820.221(4) of the Migration Regulations.

23. The Tribunal notes that as above that the applicant’s representative contacted the Tribunal indicating that the applicant will not be attending the hearing. On that basis the Tribunal proceeded to consider the material before it on the papers.

24. The Tribunal finds that the applicant has not provided any evidence or submissions regarding this matter and that the applicant’s representative provided a submission before the hearing as noted in paragraph 7 of this decision stating that the applicant and the sponsor are not in a spousal relationship, and provided that submission as specifically put by the applicant’s sponsor. The Tribunal is mindful that it has not specifically heard from the applicant regarding any up-to-date evidence she would want to provide in this matter but, as stated, the Tribunal finds that the applicant has been given every opportunity to attend a hearing and was specifically invited via teleconference from her assumed residence in Hong Kong to provide any submissions that she would wish to provide.

25. The Tribunal also notes that no submissions were provided regarding the decision of the delegate that the sponsor had already had two previous sponsorships and therefore did not satisfy clause 820.221(4) of the Migration Regulations and did not satisfy regulation 1.20J. The Tribunal further notes that no evidence was provided about a consideration of the waiving of this regulation on the grounds of compelling circumstances. The Tribunal finds that no compelling circumstances were provided in this matter.

26. On the basis of the above the Tribunal finds that the applicant has not met the sponsorship requirements of the above regulation, and that in any case it has been stated by the applicant’s representative, on behalf of the applicant, that the parties are not in a spousal relationship.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa

    Stephen Witts
    Member