Zheng (Migration) - [2021] AATA 4400

Zheng (Migration) [2021] AATA 4400 (8 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jinyu Zheng
Miss Yuxin Zheng
CASE NUMBER:  2013020
HOME AFFAIRS REFERENCE(S):          BCC2015/219969
MEMBER:Michael Cooke
DATE:8 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.221(2)(d) of Schedule 2 to the Regulations

Statement made on 08 November 2021 at 1:31pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Court remittal – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – child with sponsor and children of both from previous relationships, including Australian citizens – genuine, long-standing relationship and sponsor’s mental health and financial dependence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.221(2)(d)(ii), Schedule 3, criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
SZSLA v MICMSMA [2020] FCA 944
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 Immigration and Border Protection to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) applied for the visa on 18 November 2016 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 the applicant did not meet the Schedule 3 criteria and did not have ‘compelling reasons’ for waiver of the criterion.
The matter is before the Tribunal because of a Court order remitting the matter to the Tribunal for determination according to law.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has ‘compelling reasons’ for waiver of thew Schedule 3 criteria.
SCHEDULE 3 CRITERIA (cl 820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or are there ‘compelling reasons’ for not applying those criteria?
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 Tribunal finds from evidence before it that the visa application was not made within 28 days of the ‘relevant day’ and thus 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: see 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.
In his submission to the delegate addressing the Schedule 3 criteria the applicant refers to having a close and committed relationship with the sponsor. The applicant presented a number of documents addressing the various aspects of the relationship and additional evidence concerning the relationship is before the Tribunal. The applicant repeatedly told the Tribunal (separately constituted) that his relationship with the sponsor is genuine.
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 Tribunal is mindful that the Explanatory Statement, in providing examples of ‘compelling reasons’, states:
Where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
The applicant’s claim is that he has a child of his present long-standing relationship (begun in 2015). He gave evidence to the Tribunal (separately constituted) that he had children together with his former partner. The applicant claimed in his submission to the delegate (see decision record tendered to the Tribunal) that there are two children from the previous relationship, as well as his child with the sponsor, and that they have been relying on him physically, emotionally and financially. He stated in evidence:
I think that the reason I stay here is to give - build for future for my children. And I work very hard here to promise my wife, my family, a good life. And as a man, I have four children, and all of us, the whole family, just stayed in a two bedroom property. I cannot buy the things that other family buy for their children. I really don't understand why people keep suspecting us.
The Tribunal Member (separately constituted) summarised the position concerning the children as being that the applicant lives with four children, 'one is your daughter from your previous relationship, one is the child you claim from your current relationship, and two are children of … your current wife'.
In oral evidence to the (previously constituted) Tribunal the applicant claimed that his wife’s mental health is poor, as a result of her previous marriage, and she is getting ongoing help from a psychologist and that he works hard to enable such treatment. The applicant claimed that the sponsor relies on him for ongoing and continuous care. The applicant said his partner sees the doctor every 2-3 months because of their financial situation and the expense of such visits, and the doctor suggested the wife keeps in a good mood and goes out to see people. The applicant was not sure what his wife had been diagnosed with (he suggested it may be autism but if that was the case, the Tribunal would expect probative medical evidence relating to the condition). The applicant also told the Tribunal his wife sees a GP regularly because her mood is unstable. He thought she has been prescribed sleeping pills or a sedative, but he was not sure ‘because he is not a doctor’. The applicant said he encourages his wife to go for walks and his wife needs him. The applicant subsequently provided to the Tribunal medical evidence relating to his wife and the Tribunal accepts that she has been receiving treatment for autism.
The applicant also argued that he had been the sole breadwinner for the family and his income covers most of the daily household expenses. He claimed his wife receives Centrelink benefits and child support from her former partner, but this income was not sufficient to meet the family needs and if he has to leave the country, the family would experience financial hardship.
The applicant indicated to the Tribunal (separately constituted) at various times in the hearing in response to questions the following:
I hope that you can believe me. I work very hard in Australia here is to provide a good life to my child and my wife and I want them to receive fair treatment. I don't want them to have to face any discriminations. I want to give them the life that they like. I don't want to be here just to challenge you or show any disrespect to any of you. It's only because I want to have a life with my family. If I have to leave how do you think that a single woman can live or survive with four children just by [herself] only make - cannot live the good life.
Member, I really respect you and I invite you to believe me. As a man with family, I need to provide a future and life to my children and my family. I cannot just walk away out of their life and that's very irresponsible. So you shouldn't suspect me just because I don't go to have a DNA test. And do you think just you force a family as ours to a corner a fair action to us. If I don't love them, if we are not in real relationship, why would I stay here to support four children and to support a sick person.
No, I don't think so, because our marriage is real. Our marriage is real and the children is mine. I don't think you should suspect me. If it's not my real child, just for a residency right to just acknowledge someone is my child and to look after this child or this child's life, do you think that's worth it? Have four children and one - your person, if it's not for love, what other reason would it be?
The Federal Court in its remittal of the Tribunal’s (separately constituted) decision (SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944) stated the following:
To claim to be a father to young children is a claim to the existence of a relationship with attributes of a kind so fundamental and well-understood across cultural contexts that an active intellectual engagement with the appellant's case had to consider whether the appellant had such a relationship with the four children and, if so, the consequences for them if his application was unsuccessful (and he had to leave Australia in circumstances where his ability to return would depend upon successfully obtaining a visa based on an application made from outside Australia).
To approach the appellant's case, as the Tribunal did, as if it was denuded of any claim that the appellant's relationship to the four children had any of the characteristics conjured by the description 'father' or any of the usual comfort, affection and support that young children would receive from a father was to reach a state of satisfaction as to exceptional circumstances that was so disconnected from a major matter raised that it lacked the requisite statutory character.
The Tribunal is satisfied, on evidence already led, that ‘the applicant and his nominator are already in a long-standing relationship which has been in existence for two years or longer’.
The applicant has also established to the Tribunal’s satisfaction that - despite his unsatisfactory migration history – he has a crucial role in the parenting of four children - three of whom are Australian citizens. Furthermore, it is apparent that it would not be practicable for the applicant in the previously outlined circumstances for him to return to his country of origin and to make (with the sponsor) a second (offshore) Partner visa application. His important role as father and major financial provider to four children is thus a “compelling” in the sense of ‘convincing’ and ‘forceful’ reason to ground waiver of the Schedule 3 criteria.
The Tribunal is satisfied that there are ‘compelling reasons’ for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(d) of Schedule 2 to the Regulations
Michael Cooke
Senior 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.