Zhang (Migration) - [2024] AATA 1671

Zhang (Migration) [2024] AATA 1671 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dunxiu Zhang
CASE NUMBER:  1936161
HOME AFFAIRS REFERENCE(S):          BCC2018/2699675
MEMBER:Peter Emmerton
DATE:6 March 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 06 March 2024 at 2:51pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days last substantive visa held – compelling reasons for not applying criterion – extensive period as unlawful non-citizen – unsubstantiated claims of fear of harm from money lenders and persecution as Christian – multiple visa and review applications, and aborted removal – limited evidence of sponsor’s physical health conditions – minimal evidence of anticipated hardship – some hardship reasonably expected – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, criterion 3001
CASES
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
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 (Cth) (the Act).
The applicant applied for the visa on 19 July 2018 on the basis of 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 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 they were not satisfied that the via applicant had met the requirements of Schedule 3. Specifically, cl 3001 as they had not made a valid application for the visa within 28 days of last holding a substantive visa.
The applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments via video initially and then with his permission via telephone due to some apparent technical issues at his end. The Tribunal also took evidence from Ms Jhu Ming Ye, the sponsor via telephone.
The Tribunal hearing was conducted with the assistance of an interpreter fluent in the Mandarin and English languages.
The applicant was not represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the requirements of cl 3001 are met in…

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] AATA 1671
Case: [2024] AATA 1671
Decision Date: 6 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) made by the applicant. The primary issue before the Administrative Appeals Tribunal (AAT), presided over by Member Peter Emmerton, was whether the applicant met the requirements of Schedule 3 of the Migration Regulations 1994, or if there were compelling reasons for those criteria not to apply. The applicant had applied for the visa more than 28 days after their last substantive visa ceased.

The legal issues before the Tribunal were whether the applicant had demonstrated compelling reasons for not meeting the Schedule 3 criteria, specifically concerning the timing of their application relative to their last substantive visa. This required an assessment of the applicant's extensive immigration history, their claims of fear of harm from money lenders and persecution as a Christian, and the evidence provided regarding their sponsor's health and the anticipated hardship if the visa were not granted. The Tribunal also considered the applicant's explanation for not seeking legal advice and for not reading the delegate's decision.

The Tribunal found that the applicant's explanation for not understanding or reading the delegate's decision, and for not consulting legal expertise due to cost and being married to the sponsor, was unusual. After reviewing extensive evidence, including photos, bank statements, and utility accounts, and noting the applicant's substantial and complex immigration history dating back to 1997, which included multiple visa refusals, aborted removals, and unsuccessful appeals, the Tribunal concluded that the applicant had not established compelling reasons for the Schedule 3 criteria not to apply. While acknowledging some hardship was reasonably expected, the Tribunal found the evidence of hardship and the sponsor's health conditions to be minimal and unsubstantiated in the context of overcoming the Schedule 3 requirements.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, finding that the applicant did not satisfy the criteria for its grant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the requirements of cl 3001 are met in order to meet cl 820.211(2)(d). When questioned by the Tribunal as to the reason his visa had been refused the applicant stated he didn’t understand and had not read the Department decision. Nor had he chosen to consult legal expertise as he was married to the sponsor, so it was unnecessary, and it was expensive. The Tribunal found this response unusual. The Tribunal explained the delegate’s decision to satisfy itself the applicant was informed as there was no way to verify the claimed nonreading of the decision. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate. The Tribunal has read and carefully considered all the evidence submitted to it prior to the hearing as listed below. Couple Photos -dated between 26/12/2019 to 8/2/2024 - at various locations: Paramatta Shopping Centre; Lidcombe; Auburn Nan Han Seafood Restaurant with friend and daughter-in-law’s family; Campsie; Homebush DFO Shop; Harvey Norman Auburn; Darling Harbour; Centenary Square, Parramatta; Joint Bank Statements (monthly) -ANZ Access Advantage : 20 July 2020 to 6 February 2024 Further Photos including identical copies. Further Bank Statements (monthly) - ANZ Access Advantage : 20 July 2020 to 6 February 2024 as per above Transaction Details 20 July to 18 August 2020 Further Utilities Accounts AGL electricity account quarterly : Dec 2019 to March 2021 quarters Energy Australia account quarterly: Sep 2022 to Dec 2023 quarters AGL gas account quarterly: Feb 2020 to Feb 2021 quarters AGL electricity account: 9 March 2021 to 7 April 2021 – Account Closed AGL gas account: 13 Feb 2021 to 7 April 2021 – Account Closed Discover Energy gas account: 08 April 2021 to 17 May 2021; 17 August 2021 to 16 November 2021. Discover Energy electricity account: 8 April 2021 to 4 June 2021. Energy Australia gas account: 17 Feb 2023 to 17 Nov 2023 Mobile / Internet Tax Invoices (monthly) Telstra Upfront Internet Plan Ultimate: 17 Nov 2022 to 16 Feb 2024 Vodafone Mobile Phone and Fixed Broadband Plans: Dec 2019 to Nov 2022 The Tribunal notes the following substantial immigration history contained in the Departmental records which was read and confirmed as accurate by the applicant at the hearing.·On 6 May 1997, the applicant first arrived in Australia, as the holder of a Short Stay Business (subclass 456) visa, which ceased on 06 June 1997;·On 30 May 1997, the applicant applied for a (Class AZ) (subclass 866) Protection Visa and was granted an associated Bridging Visa A;·On 13 November 1997, the applicant’s Protection visa was refused;·On 17 September 1998 the Refugee Review Tribunal (RRT) reviewed the applicant’s case and affirmed the original decision; ·On 16 October 1998 the applicant’s associated Bridging Visa A ceased;·After 16 October 1998, the applicant remained in Australia unlawfully;·On 22 October 1998, the applicant requested a section 417 Ministerial Intervention into their case and were granted an associated Bridging Visa E;·On 21 June 1999, the Minister decided not to consider intervention into the applicant’s case, pursuant to their Section 417 powers;·On 4 August 1999, the applicant requested a further section 417 Ministerial Intervention into their case;·On 18 August 1999, the applicant joined the Nancy Lie class action;·On 11 September 2000, the Minister again declined their request to consider intervention into the applicant’s case, pursuant to their Section 417 powers;·The applicant held a series of Bridging E Visas, while the Ministerial intervention request and a second further request were considered, with the Bridging Visa E being cancelled on 18 September 2002;·On 18 September 2002, the applicant was detained and held in Immigration Detention;·On 4 January 2003, the applicant was due to be removed from Australia, however, this process was aborted;·After 4 January 2003, the applicant remained in Australia unlawfully;·On 30 November 2013, the applicant lodged a further application for a Protection Visa (Class XA-PV) (Subclass 866), and was granted an associated Bridging E visa;·On 27 May 2014, the Protection Visa application was refused;·On 18 June 2014, the applicant lodged an appeal with the RRT;·On 04 May 2015, the RRT affirmed the Department’s decision;·On 25 May 2015, the applicant lodged a judicial appeal with the Federal Court;·On 6 October 2015, the Federal Court outcome resulted in the Department’s favour;·The applicant held another series of Bridging E visas until they lodged a Medical Treatment (Class UB, subclass 602) visa on 10 January 2018;·On 19 January 2018 this application was deemed invalid;·On 23 January 2018, the applicant lodged a further Medical Treatment (Class UB, subclass 602) visa;·On 15 February 2018, the applicant’s Medical Treatment visa application was refused;·On 22 February 2018, the applicant lodged an appeal with the Administrative Appeals Tribunal (AAT);·On 19 July 2018, the applicant lodged an application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa, and was subsequently granted an associated Bridging Visa E;·On 28 August 2019, the applicant withdrew their appeal with the AAT in association with their refused Medical Treatment visa;·The applicant currently remains the holder of a Bridging visa E.Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Peter EmmertonMemberATTACHMENT - 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 affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Peter EmmertonMemberATTACHMENT - 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.