ZHANG (MIGRATION) - [2024] ARTA 113

ZHANG (MIGRATION) [2024] ARTA 113 (28 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Shuqin Zhang
Respondent:  Minister for Home Affairs
Tribunal Number:  2115880

Tribunal:Alison Murphy
Place:Melbourne
Date: 28 November 2024
Decision:The Tribunal remits the application for a Partner (Temporary) (Class UK) Subclass 820 visa, with the direction that the applicant meets the following criteria for a Subclass 820:
·Reg 1.20J for the purpose of cl.820.221(4) of Schedule 2 to the Regulations

Senior Member A. Murphy

Statement made on 28 November 2024 at 5:45pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation requirement – compelling circumstances – significant mental and physical health issues – long standing dependent relationship – 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
Nagaki v MIBP [2016] FCCA 1070
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2021 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 30 November 2018. The delegate refused to grant the visa on the basis that the sponsorship of the applicant was not approved and as a result the applicant did not meet the criteria set out in cl 820.221(4).
The applicant appeared before the Tribunal on 19 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Guo Jun Xu and the applicant’s daughter-in-law, Ms Haiyi Liang. 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 decision under review should be remitted to the Department for reconsideration.
THE RELEVANT LAW
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…

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 ZHANG (MIGRATION)

Details

AGLC: ZHANG (MIGRATION) [2024] ARTA 113
Case: [2024] ARTA 113
Decision Date: 28 NOVEMBER 2024

CaseChat Overview and Summary

The case involves the sponsor, a sixty-three-year-old male, who has already exceeded the sponsorship limit set by regulation 1.20J for partner visas. The sponsor has previously sponsored three individuals, two of whom were granted partner visas. He now seeks to sponsor the applicant, his fifth spouse, for a Subclass 820 (Partner) visa. The matter was heard by the Tribunal, which had to determine whether there were compelling circumstances to warrant a waiver of the sponsorship limitations imposed by the regulation.

The central legal issue before the Tribunal was whether the sponsor's circumstances constituted compelling reasons under regulation 1.20J(2) to permit a waiver of the sponsorship limit, which restricts a sponsor to two lifetime approved sponsorships leading to a grant of a partner visa. The Tribunal considered various factors, including the genuineness and duration of the sponsor's relationship with the applicant, the sponsor's health conditions, and his inability to return to China due to the renunciation of his Chinese citizenship. The Tribunal also examined the sponsor's previous marriages and the reasons behind the breakdown of those relationships.

The Tribunal found that the relationship between the sponsor and the applicant was genuine and long-standing, lasting over six years. It also noted the sponsor's significant health issues, which have prevented him from working and are likely to continue, and his lack of close family in China. The Tribunal concluded that these circumstances warranted a waiver of the sponsorship limitations. The Tribunal further observed that the sponsor's previous marriages, particularly the second, were long-lasting, and there was no evidence of abuse of the partner migration provisions. The Tribunal ultimately decided that the compelling circumstances present in this case justified the remission of the visa application to the Minister for reconsideration under the remaining criteria for a Subclass 820 visa.

The Tribunal remitted the application for the Partner (Temporary) (Class UK) Subclass 820 visa to the Minister, with the direction that the applicant meets the criteria for a Subclass 820 (Partner) visa, specifically regarding the sponsorship limitations under regulation 1.20J. The decision highlights the importance of considering the totality of circumstances in determining whether compelling reasons exist for waiving sponsorship limitations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Approval of sponsorship is subject to limitations contained in reg 1.20J 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. 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 5 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).CONSIDERATION OF CLAIMS AND EVIDENCE The sponsor is a sixty-three-year-old male. It is not in dispute that he has previously sponsored three other persons for partner visas and that two of those sponsorships led to a partner visa being granted. At the Tribunal hearing, the sponsor explained his relationship history in a manner consistent with his written statements to the Department, the department’s records of his migration history and documentary evidence of his previous marriages and divorces. On the evidence before it the Tribunal accepts each of the following matters to be true:·He first married in China in 1985, that marriage producing a daughter who is now an adult living in in Australia with her own family. The marriage ended in 1995 prior to the sponsor’s migration to Australia;·The sponsor next married in 2002, lodging a sponsorship application in respect of his spouse in October 2002. The marriage lasted for eight years before the parties were divorced in October 2010;·The sponsor married again in February 2011, but separated shortly afterwards. He and his former wife were officially divorced in June 2012 as evidenced by the divorce order made by the Federal Magistrate’s Court of Australia. The sponsor withdrew his sponsorship as soon as the relationship broke down and the sponsorship did not lead to the grant of a visa;·The sponsor’s fourth marriage took place in July 2012 and a provisional partner visa was granted to his spouse in August 2013. The divorce certificate issued by the Ministry of Civil Affairs, People’s Republic of China records that the parties were divorced in September 2015. Dp·marriage ended after his spouse had been granted permanent residency and they divorced in September 2015 as evidenced in the;·The sponsor married the applicant in October 2018 and they applied for the visa on 30 November 2018. As noted above, reg 1.20J provides that 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. As the sponsor has already had two approved sponsorships leading to the grant of a partner visa (being in respect of his second and fourth marriages), he cannot meet the requirements of reg 1.20J unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).Compelling circumstances

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) Subclass 820 visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·Reg 1.20J for the purpose of cl.820.221(4) of Schedule 2 to the RegulationsDate(s) of hearing: 19 November 2024Representative for the Applicant: Ms Ying Ying Wong (MARN: 0958103)

Ratio Decidendi

Legal Principle Established

At hearing the applicant’s representative noted that the sponsor no longer holds Chinese citizenship, having renounced it in order to become an Australian citizen. He has no close family remaining in China and if he returns there he will not have access to publicly funded medical or other services. Country information confirms that China’s Nationality Laws do not permit its citizens to hold dual nationality[1] and the Department’s records confirm the applicant was granted Australian citizenship in 2007. [1] Nationality in China (accessible) - GOV.UKConsideration As discussed with the applicant at hearing, the Australian courts have held that the genuineness of a relationship, on its own and with nothing more, will not constitute a compelling circumstance affecting the sponsor. Nor is the Tribunal obliged to apply or consider the definition of ‘long term partner relationship’ in r.1.03 in determining whether compelling circumstances affecting the sponsor existed for the purposes of r.1.20J(2).[2][2] Nagaki v MIBP [2016] FCCA 1070 However the Tribunal considers that considered as a whole, there are compelling circumstances affecting the sponsor that warrant a waiver of the sponsorship limitations in this case. A genuine and continuing relationship of six years standing is properly described as long standing, and the Tribunal notes this to be one of the instances that may constitute compelling reasons as set out in the Departmental Guidelines. The Tribunal gives weight to the fact that the applicant provides care for the sponsor in the context of his significant medical conditions which have prevented him from working in his usual occupation as a manual labourer for several years and are likely to continue to do so. The Tribunal also gives weight to the fact that the sponsor is no longer a Chinese citizen and cannot readily return to China to continue his relationship with the sponsor. The Tribunal is mindful that the Guidelines state that the purpose of the sponsorship limitation is to prevent abuse of the partner migration provisions and this should be kept in mind when deciding to exercise the waiver. The Tribunal considers it relevant that the sponsors’ first two marriages were long-lasting, the first producing a child. The sponsor’s second marriage, and the first of his sponsorships, lasted eight years. The Tribunal accepts the sponsor’s evidence that marriage ended in the context of significant personal tragedies which I have chosen not to record here. The sponsor’s third marriage, and the second of his sponsorships, lasted only a very short time and the applicant withdrew his sponsorship as soon as it ended with the result that no visa was granted. The sponsor now believes his fourth wife married him only for a migration outcome and was contemptuous of his occupation as a manual labourer. The Departmental file records that the sponsor notified the Department of the end of that relationship and there is nothing in the material before the Tribunal that would suggest that the sponsor did not provide timely information to the Department or that the Department otherwise held concerns about his good faith or the genuineness of the relationships.