Zhang (Migration)

Zhang (Migration) [2020] AATA 5404 (27 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Shumei Zhang
CASE NUMBER:  1908246
HOME AFFAIRS REFERENCE(S):          BCC2018/1323658
MEMBER:P. Maishman
DATE:27 October 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 27 October 2020 at 2:44pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at time of application – compelling reasons to waive Schedule 3 criteria – sponsor’s potential loss of employment – financial hardship – substantive visa ceased when previous relationship ceased – sponsor no longer has child support obligations – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
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 s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 March 2018 on the basis of her relationship with her sponsor, Mladen Naumoski. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because the delegate was not satisfied the applicant met the Schedule 3 requirements or that there were compelling reasons not to apply those requirements.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant appeared before the Tribunal by telephone on 8 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant's husband and sponsor, Mr Mladen Naumoski.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application and evidence provided to the Department in respect of the application. Relevantly the file includes a typed two page submission dated 12 March 2019 and signed by the parties, responding to the Department’s invitation to comment on compelling reasons that the Schedule 3 criteria need not be met.
The applicant provided a copy of the delegate’s decision record to the Tribunal with her application for review. The applicant’s visa history is detailed in the delegate’s decision record. The applicant arrived in Australia on 23 May 2014 as the dependent/spouse or her then husband, the holder of a Temporary Work (Skilled) (subclass 457) visa. The applicant was included on a subsequent application as the dependent/spouse of her then husband for a Temporary Work (Skilled) (subclass 457) visa on 26 May 2016. The applicant last held a substantive visa on 29 June 2017 when her then husband’s Temporary Work (Skilled) (subclass 457) visa was cancelled.
The Tribunal explained to the parties the delegate has not made an assessment of whether the applicant meets the criteria to be considered the genuine spouse or de facto partner of the sponsor. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the issue decided by the delegate.
The parties told the Tribunal what they considered to be compelling reasons for the Schedule 3 criteria not to apply.
The applicant gave oral evidence she thought the Temporary Work (Skilled) (subclass 457) visa, she was granted as the dependent of her then husband, was valid for four years until March 2018. She separated from then husband about three months after arriving in Australia. She thought the visa granted to her as the dependent of her then husband was like a contract and remained valid until March 2018 and so did not inform the Department she had separated from him. Her then husband approached her in May 2016 to get more money to renew the visa. She first met her current sponsor in June 2016 and they commenced living together in October 2016. She and did not know her previous Temporary Work (Skilled) (subclass 457) visa was cancelled in June 2017. The applicant told the Tribunal she did not want to be separated from her husband to make an offshore Partner visa application. It would be emotionally very difficult for them both to be separated for the 3 to 4 years processing time. The sponsor would lose his job and couldn’t pay to support his children or his home loan if he went offshore with her. She had borrowed a lot of money from family in China and it would be very expensive if she had to apply for another visa. Her ex-husband ran away with another woman and she would suffer the shame of being divorced if she returned to China.
The sponsor gave evidence is relationship with the applicant was a good thing that happened to him. He purchased a block of land in 2017 and is building a house which is soon to be completed. The sponsor didn’t know the full story of her visa status when they met but she had a letter saying she held a visa until March 2018. They were going to go to China in March 2018 to see her family and apply for a Partner visa. They decided to make the visa application onshore. The sponsor knew the applicant had borrowed too much money from family in China. His children did not want him to move to China. He had difficult financial arrangements when he was paying child support but no longer has that obligation. He would have difficulty supporting her financially if she was in China.
The issue in the present case is whether there are compelling reasons not to apply the Schedule 3 criteria.
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order 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.
The Department’s records show the applicant’s Temporary Work (Skilled) (subclass 457) visa ceased on 29 June 2017. The applicant does not dispute that she last held a substantive visa on 29 June 2017 when her then husband’s Temporary Work (Skilled) (subclass 457) visa ceased.
The Tribunal finds that 29 June 2017 is the last day the applicant held a substantive visa and is the ‘relevant day’ as defined in criterion 3001(2). The applicant made her Partner visa application on 21 March 2018 which is more than 28 days after the relevant day.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. 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.
The Tribunal considered the if the circumstances surrounding the applicant not holding a substantive visa.
The applicant held a visa on the basis she was the spouse of her then husband, the holder of Temporary Work (Skilled) (subclass 457) visa. Her relationship with her then husband ceased around September 2014. The applicant did not inform the Department she was no longer the spouse of the visa holder. The applicant did not know her ex-husband’s Temporary Work (Skilled) (subclass 457) visa, and consequentially her visa, was cancelled in June 2017. The applicant said on her visa application form she checked VEVO around the time of making her Partner visa application and discovered she did not have a visa.
The Tribunal does not consider the circumstances surrounding the applicant not holding a substantive visa to be compelling reasons to waive the Schedule 3 criteria. The circumstances in which she held a visa changed when she separated from her then husband. The applicant did not make any reasonable attempts to discuss her situation with the Department, or to regularise the status once she was no longer the dependent or spouse of visa holder. Information is available on the Department’s website in Mandarin and the Department make use of interpreter services so that immigration information is available in several forms in a wide range of languages.
The Tribunal considered if there are aspects of the applicant’s relationship with the sponsor that are compelling reasons not to apply the Schedule 3 criteria.
The applicant and sponsor have been married since November 2017. The sponsor’s youngest child is now 19 years. The sponsor’s children do not live with the applicant and sponsor. The sponsor talks with his children a few times a week on the telephone. The sponsor no longer has a child support obligation for his children.
The Tribunal is not satisfied the duration of the parties’ relationship or the involvement of the sponsors children in the relationship are compelling reasons to waive the Schedule 3 criteria.
The Tribunal acknowledges the preference of the applicant and sponsor to remain in Australia together while the Partner visa application is processed. The Tribunal acknowledges the parties may suffer some distress if the applicant is required to go offshore to make the visa application. The distress the parties might suffer is no more than that experienced by many couples who meet, fall in love and commit to each other, and are then required to be apart while they get their affairs sorted out. Parties in a relationship who are required to be a part routinely maintain their relationship, personal contact and communication by telephone and electronic media.
The Tribunal acknowledges the parties’ preference is not to be separated and they are likely to experience emotional distress if required to do so. The Tribunal is not satisfied the distress experienced is a compelling reason to waive the Schedule 3 criteria.
The Tribunal acknowledges the parties might suffer some financial hardship if the applicant is required to go offshore to make her Partner visa application. There is no requirement for the sponsor to leave Australia which would result in him losing his employment. The sponsor’s children and adults and he no longer has a child support obligation for them. The applicant is not employed in Australia.
The Tribunal acknowledges it is likely the sponsor will be required to make some financial adjustments if he is to support the sponsor financially while she is offshore. The Tribunal is not satisfied the financial adjustments the parties will need to make is a compelling reason to waive the Schedule 3 criteria.
The Tribunal acknowledges the applicant’s claim she may suffer some embarrassment returning to see her family in China having become divorced. The applicant is however now remarried, and her presence with her family would presumably be a short-term arrangement pending processing of her Partner visa application.
The Tribunal is not satisfied the embarrassment the applicant would suffer is a compelling reason to waive the Schedule 3 criteria.
The Tribunal has considered the applicant’s reasons to waive the Schedule 3 requirement individually and cumulatively.
The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
P. Maishman
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.

[2020] AATA 5404

27 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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