Zhao (Migration)

[2020] AATA 5205

Zhao (Migration) [2020] AATA 5205 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zhengxian Zhao
Mr Jichang Tian

CASE NUMBER:  1914179

HOME AFFAIRS REFERENCE(S):          BCC2018/2241731

MEMBER:P. Maishman

DATE:3 December 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 03 December 2020 at 1:47pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – validly married – secondary applicant’s education – parties’ work and finances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

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

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 24 May 2018 on the basis of her relationship with her sponsor, Glenn Craig Mackay. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the applicant did not satisfy the Schedule 3 criteria and there were not compelling reasons for not applying the criteria.

4. On 24 June 2020 the Tribunal wrote to the review applicants by letter addressed to the first named applicant, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 22 July 2020.

5. On 15 July 2020 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from signed by the first named applicant, the primary visa applicant, and received from the first named applicant’s newly appointed representative, a registered migration agent. The Tribunal is satisfied this person had authority to act on behalf of all the applicants. This matter has therefore been determined on the evidence available to the Tribunal.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file containing the visa application, sponsorship form and documents provided to the Department in respect of the application. The second named applicant is included in the visa application and claimed to be the child of the first named applicant. The first named applicant and sponsor claim to have first met on 30 October 2015 and commenced a romantic relationship in January 2018. They committed to a shared life to the exclusion of all others on 17 May 2018, the date they married. The first named applicant claimed she was married twice previously and had a child from her first marriage. Her most recent marriage ended by divorce on 27 October 2017. The Department invited the applicants in writing on 12 April 2019 to put forward claims for it to assess if there were compelling reasons not to apply the Schedule 3 criteria. The Department’s file contains an unsigned, undated typed letter with the first named applicant and sponsor’s names at the end appearing to be a joint response to that invitation.      

9. The applicants gave the Tribunal a copy of the delegate’s decision record with their application for review. The delegate outlined the applicants visa history. In summary the first named applicant arrived in Australia on 25 January 2013 as the holder of a Temporary Work (subclass 457) dependent/spouse visa of her previous husband and that visa ceased on 14 August 2016. The first named applicant was included on a subsequent application by her previous husband in July 2016 and that application was refused in April 2017. The applicant continued to be the holder of a bridging visa pending the outcome of her then husband’s application to the Tribunal when she applied for the visa subject of this review. Various tax notices, payslips, study costs for the second named applicants have been provided with the submission and considered by the Tribunal where relevant.     

10. The applicant’s representative emailed a written submission dated 12 July 2020 to the Tribunal on 15 July 2020. The Tribunal received documents indexed by the representative as being numbered from 1 to 23 on 15 and 16 July 2020. The Tribunal received an undated letter from the sponsor. The documents provided with the submission generally do not address compelling reasons for the Schedule 3 criteria not to apply. Statutory declarations from the sponsors mother and sister support the genuineness of the parties’ relationship.   

11. The issue in the present case is whether the applicant meets the Schedule 3 criteria or whether those criteria should be waived.

    Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

12. 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).

13. 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

14. 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.

15. The delegate’s decision says the applicant’s last held a substantive visa when her Temporary Work (subclass 457) dependent/spouse visa ceased on 14 August 2016. There is no evidence before the Tribunal that the applicants dispute they last held a substantive visa on 14 August 2016.

16. Having regard to the delegate’s information concerning the applicant’s visa history, the Tribunal finds that the last day the applicant held a substantive visa was 14 August 2016 which is the ‘relevant day’ within the meaning of criterion 3001(2)(c).

17. The Tribunal finds that the applicant was not a holder of a substantive visa at the time she made the application for a partner visa on 24 May 2018. This was more than 28 days after the ‘relevant day’.

18. As the visa application was not made within 28 days of the relevant day, 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, 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.

21. The Tribunal had regard to claims in the unsigned, undated letter of the parties provided to the Department. It is submitted the parties ongoing relationship and employment/financial commitments are compelling reasons not to apply the Schedule 3 criteria.

    Ongoing relationship

22. The Tribunal acknowledges the parties claimed they do not want to be unnecessarily separated and that it would be distressing to them both. The Tribunal acknowledges it is not the parties’ preference for the applicants to go offshore to make the visa application. The Tribunal acknowledges the claims the applicants have been accepted into the sponsors extended family. The Tribunal acknowledges the claim the second named applicant has settled into university studies and is developing a social circle. It is claimed the second named applicant’s future would be disadvantaged he could not continue his studies.

23. The first named applicant and the sponsor have been in a married relationship for a relatively short period of time. There is no probable evidence before the Tribunal that a temporary geographical separation would cause mental or physical harm to any of the parties. The Tribunal acknowledges the parties preference to be together.

24. There is no independent evidence that the second named applicant could not make alternative arrangements to continue his studies, or that deferring his studies would have any adverse effect on his future.

25. The Tribunal has addressed the claim that employment/financial commitments are compelling reasons in the following paragraphs. 

26. The Tribunal is not satisfied, on the evidence presented, the claims made to the Department constitute a compelling reason not to apply the Schedule 3 criteria. 

27. The Tribunal had regard to the applicants’ representative submission to the Tribunal on 12 July 2020. The sponsor is currently working as a driver in Australia and earns around $92,000 per annum. The first named applicant has a stable job as a massage therapist. The second named applicant is currently studying at the University of Technology Sydney.

28. The representative submitted the sponsor would be affected:

    a.the sponsor had lived in Australia for a very long period

    b.the sponsors work skills were narrow, different traffic laws and driving styles, no Chinese driver’s licence and unfamiliar road conditions;

    c.the sponsor would face a language barrier;

    d.the sponsor had no work visa;

    e.the sponsor would not adapt to the new environment, climate, food and living arrangements in Sichuan China.

    f.The sponsors sister and 85-year-old mother lived in Australia and he is his mother’s main carer;

    g.the sponsor provides for his mother financially;

    h.the sponsors sister shares accommodation with the sponsor and partially relies on him emotionally and financially;

    i.he could not manage his investments from overseas;

    j.he would lose money on the value of his car;

    k.he would lose his job; and

    l.his sister and mother will lose his emotional, physical and financial support.

29. There is no requirement for the sponsor to go offshore with the visa applicant for her to make a visa application. If the sponsor remains onshore, none of the circumstances submitted as affecting the sponsor would arise.

30. The Tribunal is not satisfied the circumstances submitted as affecting the sponsor are compelling reasons for not applying the Schedule 3 criteria.

    Financial and emotional hardship

31. The first named applicant submits she and the sponsor have stable incomes in Australia. Their skills are suitable for Australia but will not give them enough financial capacity to live and support the family in China. The sponsor will not be able to get any income. The Covid19 pandemic and flooding in China is making it more difficult for them to relocate.

32. The Tribunal accepts the applicants and sponsors living standards may be affected if the applicant had to return to China. The Tribunal accepts it is likely that if the parties are separated their living costs would be higher than if they remained living together. This is not an uncommon scenario when people are required to be geographically separated for a temporary period to meet work commitments, visit family not living locally, or to meet immigration requirements. There is not any substantial evidence to show they would suffer appreciable financial hardship.

33. The first named applicant has provided media documents indicating seasonal flooding in China in July and August. There is no detail before the Tribunal of why the pandemic and heavy flooding in parts of China makes it more difficult for the applicants to go to China or to leave Australia.

34. The Tribunal is not satisfied on the evidence presented, that the applicants, the sponsor or any other relatives would suffer financial hardship that would constitute a compelling reason not to apply the Schedule 3 criteria.

    Property, assets and job in Australia.

35. The first named applicant submits the sponsor will lose the value in his assets and investment portfolio if he leaves Australia. The first named applicant and the sponsor will lose their current jobs and their family members will consequently lose their financial support.

36. The Tribunal was provided a CHESS holders statement indicating the sponsor had purchased, sold or transferred shares between 15 September 2019 and 19 September 2019.

37. The Tribunal does not accept the sponsor will lose the value of these assets and investment portfolio if he left Australia. The value of the sponsors assets and investment portfolio would continue to be affected presumably by market forces regardless of his geographical location. The Internet provides the ability for investors to transact on their investment portfolios from anywhere in the world. In any case there is no requirement for the sponsor to leave Australia and there is no reason for the sponsor to lose his employment. There is no evidence before the Tribunal that the first named applicant could not obtain some work in China or be financially supported by her family.

38. The Tribunal is not satisfied on the evidence that there is any effect on the parties’ property, assets and/or employment in Australia that are compelling reasons not to apply the Schedule 3 criteria.

    Starting a new life in China.

39. The first named applicant submitted the sponsor would have difficulties with the language barrier, different skill sets, different cultures and habits making it hard for them all to start a new life in China.

40. There is no requirement for the sponsor to go offshore. If the first named applicant goes offshore to make a visa application without the sponsor he will not have a language barrier, different skill set, different culture or different habits. It is not a requirement that the parties go offshore permanently or that the family start a new life in China.

41. The Tribunal was not satisfied on the evidence that the difficulty of the parties starting a new life in China is a compelling reason not to apply the Schedule 3 criteria.

    Health concerns

42. The applicant submitted she had concerns about her in the sponsor’s health if they left Australia because of the air quality in China; the likelihood they would be infected by Covid 19; and seasonal flooding and associated illness.

43. There is no evidence before the Tribunal that the parties have any particular health susceptibility to environmental factors. There is nothing before the Tribunal that suggests the applicants are at higher risk of  Covid-19 infection in China than they are in Australia. The health concerns raised are not compelling reasons not to apply the Schedule 3 criteria.     

44. The Tribunal has considered the all applicants claims of compelling reasons. The Tribunal is not satisfied the claimed reasons are compelling, either individually or cumulatively, such that the Schedule 3 criteria should not apply.    

45. 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)

46. For the reasons above, the applicants do not satisfy the criteria for the grant of the visa.

    DECISION

47. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    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.