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

1. 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).

2. 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.

3. 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.

4. 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.

5. The Tribunal hearing was conducted with the assistance of an interpreter fluent in the Mandarin and English languages.

6. The applicant was not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the requirements of cl 3001 are met in order to meet cl 820.211(2)(d).

9. 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. 

10. The Tribunal has read and carefully considered all the evidence submitted to the Department and the delegate.

11. 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

12. 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?

13. 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).

14. 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

15. 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.

16. The relevant day in this instance is the last day the applicant held a substantive visa. The Departmental records clearly establish the last substantive visa held by the applicant ceased on 6 June 1997. The visa was a Short Stay Business (subclass 456) visa. This establishes the applicant does not meet the requirements of criterion 3001. This has been verified by the Tribunal through reference to Departmental travel and immigration records.

17. To meet the requirements of subclause 820.211(2)(d)(ii), you must satisfy each of Schedule 3 Criteria 3001, 3003 and 3004. As the applicant failed to meet criterion 3001, the Tribunal has not considered the remaining Schedule 3 criteria.

18. As the visa application was not made within 28 days of the relevant day, (the applicant confirmed this fact at the hearing), the applicant does not satisfy criterion 3001.

    Compelling reasons

19. 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.

20. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

21. The provisions are not intended to facilitate persons who:

    ·fail to comply with their visa conditions; or

    ·deliberately manipulate their circumstances to give rise to compelling reasons; or

    ·can leave Australia and apply for a Partner visa outside Australia.

22. The Tribunal notes the applicant was provided with an opportunity on 6 November 2019 to provide information regarding any compelling factors for consideration to waive the Schedule 3 criteria. The applicant was provided 28 days in which to reply.

23. In summary the applicant stated the following.

    They described how you came to Australia in May 1997;

    It was claimed they did not want to return to their country of residence, (China) for fear of persecution resulting from claimed Christian beliefs;

    They state that they met the sponsor in March 2011;

    It was claimed a relationship started between the visa applicant and their sponsor on 1 December 2017;

    The couple were married on 13 June 2018;

    It was stated they love each other;

    It was also stated they look after one another and share daily life together;

    It is stated the applicant commenced work in September 2018;

    The applicant had stated that in September 2019, their sponsor suffered from acute pyelonephritis and he cared for her which has been substantiated with medical records and treatment schedules;

    The applicant claimed financial and spiritual dependent upon one another.

    The applicant also claimed their sponsor will suffer significant impact financially, emotionally, psychologically and socially if their application is refused and they are forced to depart Australia.

24. As already stated, the previous substantive visa held by the applicant expired on 6 June 1997.

25. The Tribunal requested an explanation during the hearing as to compelling reasons why the applicant had not lodged a valid partner visa until approximately 26 years after the expiry of his last substantive visa. There was an unsubstantiated claim of fear of being placed in prison and borrowed money from undisclosed lenders. In addition, fear of persecution as he is a Christian was very briefly stated with no corroborating evidence proffered.

26. The Tribunal acknowledges the claims presented prior to the hearing, to the delegate and at the hearing raised in response to the reasons why the applicant was not the holder of a substantive visa when their Partner visa applications were lodged.

27. The Tribunal has formed the view the claims of fearing a return to China have previously been fully considered at multiple levels.  This includes by the Department during the assessment of the applicant’s Protection Visa applications. During consideration at various review channels including the AAT and the RRT, Federal Court review, and the Two separate requests for Ministerial Intervention. All the outcomes were decided in the negative against the applicant.

28. The applicant has been afforded ample opportunities throughout these exhaustive processes to demonstrate any valid protection claims. The Tribunal has formed the view therefore that if credible protection claims existed, the applicant would have been granted a Protection visa during the assessment of their multitude of previous applications, or through the subsequent review channels. This clearly has not occurred. The Tribunal is satisfied that no such legitimate fear can reasonably be established. It observes the applicant has not been living in China for close to 3 decades. No personal links to persecution through association with past individuals or their purported religion are likely. 

29. The applicant’s claims of support required for his wife’s medical condition are not supported by the medical evidence provided. It is noted that the malaise and subsequent treatment occurred many years ago. The treatment schedules and the medical reports clearly demonstrate there is no viable claim to demonstrate the severity of the anticipated hardship on medical grounds. None of this was mentioned at the hearing.

30. During the hearing the applicant claimed his wife had a bone spur on 1 knee and a fracture on the other and she had difficulty walking. The sponsor reiterated the claim and stated she relies on her husband to assist with transportation. No evidence was produced in support of this claim however if motor transport is required there are multiple options available. At the invitation of the Tribunal the applicant sent recent (19 February 2024), scans and medical reports post hearing. The conclusions for both the left and right knee was ‘Moderate to severe patellofemoral compartment osteoarthritis bilaterally.’ The Tribunal does not find this compelling.

31. At the hearing the sponsor indicated there was the possibility of a cancer diagnosis and possible treatment. No evidence had been provided to the Tribunal prior to the hearing. When questioned why the cancer issue was not previously raised, he stated the letter only came yesterday. This would be ample time to forward such a letter prior to the hearing which did not occur. The applicant was invited to send any evidence they thought relevant to the Tribunal immediately following the hearing. This did occur shortly after the hearing was completed. The letter was dated 20 February 2024 and was a standard invitation offered by the National Bowel Cancer Screening Program to undertake a screening test via a test kit which would be sent to the sponsor in the next 4-6 weeks. These tests are sent every 2 years for individuals over the age of 50 and less than 75. As is the case with the sponsor. They are a standard preventative screening measure which in no way indicates or suggest a cancer diagnosis.

32. It is established that the sponsor has other family members who could support her if her condition relating to knee osteoarthritis in fact required such support and her husband the applicant was offshore applying for an appropriate visa. Her adult daughter lives in Australia. The Tribunal notes that the many photographs provided by the applicant depicting he and his wife in a wide range of social settings very clearly indicate no sign of discernible physical incapacitation.

33. The Tribunal has considered the claimed length of the relationship. It accepts that it is theoretically possible that psychological and emotional support are needed by the sponsor and hence the visa application being made onshore although no credible evidence has been provided to support the claim.

34. It is accepted by the Tribunal that if the visa applicant is unable to remain in Australia, they will be unable to easily maintain personal ties to friends and cultural ties with the local community to the same extent as they currently are able. Modern communication technology should be able to assist to some degree in the short to medium term. Some travel may also be possible for the sponsor or both at a mutually convenient place outside of Australia or China. This is a consequence faced by a great many people when they are unable to maintain residency in their country of choice and as such the Tribunal does not find it compelling.

35. The Tribunal accepts that if the claimed relationship is genuine some degree of hardship can reasonably be expected to result from the separation. The Tribunal appreciates the couple may not wish to be apart for a temporary period, this however does not in itself establish that they would experience extraordinary hardship and activate the concept of compelling in the Tribunal’s view. The Tribunal notes the couple may be able to regularise their immigration status via an offshore Partner visa application to which Schedule 3 requirement would not apply. The applicant has demonstrated substantial experience in navigating the Australian immigration system over more than 26 years. The Tribunal notes the applicant’s periods of time onshore illegally and the aborted deportation following a period of immigration detention.

36. The level of emotional hardship to be experienced if partners are separated from one another for any extended period of time in this instance appears to be no greater than commonly experienced by a large number of applicants legitimately applying from offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident. Likewise, families forced to separate in order to legally meet immigration and citizenship requirements suffer similar hardships. Although emotional hardship can in some instances be considered a compelling factor in relation to the Schedule 3 criteria, minimal evidence has been offered to substantiate such claims and demonstrate the severity of the anticipated hardship. The Tribunal is substantially unconvinced of any compelling reason which would move it to waive the requirements of the Schedule 3 criteria.

1. No compelling evidence was provided explaining why more than 26 years elapsed post the expiry of the last substantive visa prior to this application and why therefore the Tribunal should grant a waiver of the Schedule 3 criteria. Little compelling evidence was provided to the Tribunal as to why the provisions of Schedule 3 criteria should be waived.

2. 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).

3. As the applicant does not meet cl 820.211(2)(d)(ii), the Tribunal has considered whether alternative criteria in cl 820.211(3) – (9) (people entering Australia to marry and who have subsequently married, and death, family violence, child exceptions) are met before affirming the decision under review. It is noted: cl 820.211(3) and (4) have been repealed for visa applications made on or after 22 March 2014 as is the case in this instance. None of these criteria are deemed relevant in the current case.

4. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Peter Emmerton
   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.