ZHANG (MIGRATION)
[2024] ARTA 113
•28 NOVEMBER 2024
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, 1.20CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
Nagaki v MIBP [2016] FCCA 1070STATEMENT 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 conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.
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
In assessing whether there are compelling circumstances affecting the sponsor, the Tribunal has considered all of the oral and documentary evidence produced to the Department and the Tribunal. It is submitted that the compelling circumstances include that the couple’s relationship is long-standing (since 2018); that the sponsor lives with significant mental and physical health issues and relies heavily on the visa applicant for care; that the couple are committed to the relationship and provide each other with a strong degree of companionship and emotional support; and that refusing the partner visa application will have a significant impact on the couple’s life because of their age and the fact they have few options to continue their relationship should the partner visa be refused.
The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.
The Department’s Policy Guidelines set out that compelling circumstances affecting the interests of the sponsor include instances where:
· the applicant and their sponsor have a dependent child who is dependent on each of them or
· the death of the previous partner or
· the previous spouse abandoning the sponsor and there are children dependent on the sponsor requiring care and support or
· the new relationship is longstanding.
The Policy Guidelines note that every aspect of the sponsor’s circumstances are relevant to the existence of compelling circumstances and aspects that might be particularly important include the nature of the hardship/ detriment that would be suffered by the sponsor if the sponsorship were not approved; the extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant. The Guidelines also 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.
Genuine and continuing relationship of a long-standing nature
The Tribunal accepts the relationship between the sponsor and the applicant commenced in 2018 and that it is genuine and continuing. They are both in their sixties, each with adult children and grandchildren from previous marriages. They met on WeChat in or about April 2018 and commenced a relationship when the applicant was visiting her adult son and his family in Melbourne. They moved in together in approximately September 2018 and married in October 2018 and have been living together since.
The Tribunal accepts that their relationship is known to their family and friends and that they regularly spend time with both the applicant’s and the sponsor’s adult children and their families. The Tribunal notes the oral evidence of the applicant’s daughter in law, and the written statements of each of the applicant and sponsor’s adult children as well as the Form 888s completed by their friends, neighbours and acquaintances. Many of those neighbours and friends report that they have socialised with the parties over the past several years. The sponsor’s GP confirms that they accompany each other to their various medical appointments.
The applicant has worked in construction for many years but lost his job during COVID19 lockdowns. While he is again looking for work, his age and medical conditions impact on his ability to continue working in that occupation and he is currently in receipt of Jobseeker payments. The sponsor gave evidence that when he was working as a construction worker the applicant used to get up early to prepare his lunches and continues to prepare his evening meals.
Banking documents submitted to the Tribunal indicate that the sponsor and applicant have operated a joint back account over several years, with the sponsor covering their daily living expenses. While the applicant has a small pension paid by the Chinese government into a Chinese bank account, she is largely financially dependent on the sponsor. His wages (and more recently, Centrelink payments), are paid into their joint account which shows evidence of the usual daily expenses as would be expected of a couple in their position going back for several years. Superannuation and tax records confirm that the sponsor has named the applicant as his beneficiary for superannuation purposes and included her details as his spouse in his income tax returns for the past several years.
Medical conditions affecting the sponsor
Medical evidence from the sponsor’s GP indicates he suffers from persistent tinnitus and severe sinusitis that affects his memory, mood and balance. At the time of application he was waiting list for an Ear Nose and Throat surgeon review in preparation for surgery, but at hearing he gave evidence that the surgery was expensive and was on hold for now. A letter from his GP records that he is depressed due to his long-term health condition and lost working capacity and reports that he needs his partner’s care to assist with his medical conditions as he is unable to shop or cook for himself due to poor endurance.
A report from the sponsor’s treating psychologist dated 14 October 2024 that since losing his job as a labourer on various construction sites, his physical and psychological condition has deteriorated, he has been certified as unfit to work by his doctor and his wife has become his carer. The report indicates that the sponsor’s depression, anxiety and stress were recorded as extremely severe in each of November 2021, June 2023 and October 2024 and he is concerned that his wife may not be able to stay with him.
The Tribunal accepts that the sponsor suffers from the medical conditions set out in the various medical reports and that the applicant attends his medical appointments with him and more generally acts as his carer.
Hardship if the visa is refused
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.UK
Consideration
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.
Considering the circumstances of the sponsor cumulatively, the Tribunal accepts that he is an elderly man with significant physical and mental health issues who has been in a long-standing relationship with the visa applicant. The Tribunal accepts that the visa applicant provides care for the sponsor and that her departure from Australia would cause him to suffer significant hardship. The Tribunal accepts that he may feel compelled to leave Australia to maintain his relationship with the applicant, which would see him separated from his adult daughter and grandchild causing hardship to the family. The sponsor has been resident in Australia since 2002 and an Australian citizen since 2007. While it may be possible for him to obtain a visa to return to China, as a non-citizen he will not have access to health care or other government services for his significant medical needs.
In view of the hardship and detriment that would be suffered by the sponsor if the sponsorship were not approved; the importance of his family relationships here in Australia, and the consequent hardship/detriment that would occur if he were to feel compelled to leave Australia to maintain their relationship with the applicant, the Tribunal is satisfied there are compelling circumstances affecting the sponsor such that the sponsorship should be approved pursuant to reg 1.20J(2).
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 Regulations
Date(s) of hearing: 19 November 2024
Representative for the Applicant: Ms Ying Ying Wong (MARN: 0958103)
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