1405843 (Migration)
[2015] AATA 3065
•6 July 2015
1405843 (Migration) [2015] AATA 3065 (6 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Chintan Hiteshkumar Desai
CASE NUMBER: 1405843
DIBP REFERENCE(S): CLF2013/139243
MEMBER:Wendy Banfield
DATE:6 July 2015
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 06 July 2015 at 5:10pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision of a delegate of the Minister for Immigration on 6 March 2014 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 June 2013 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.
Background
The visa applicant came to Australia in 2006 on a sub-class TU-573 student visa. His last substantive visa ceased on 15 March 2009. The application for a partner visa was lodged on 21 June 2013 on the grounds of a spouse relationship with the sponsor, Ms Nidhi Kamleshbhai Gandhi. The visa applicant claims to have begun a de facto relationship with Ms Gandhi in 2008, commenced living with her in 2009 and was married on 28 March 2013.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because there were insufficiently compelling reasons to waive the Schedule 3 requirements.
The applicant appeared before the Tribunal on 3 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Nidhi Gandhi and from a witness, Ms Dhara Shah.
Evidence of the visa applicant
The visa applicant gave evidence that he continues to be in a spouse relationship with the sponsor. He claimed the length of the relationship should give rise to compelling reasons for the waiver of the Schedule 3 criteria. The Tribunal advised the visa applicant that he had not submitted sufficient evidence to demonstrate that he had been in a long term spouse relationship with the sponsor at the time of application. The visa applicant claimed that he had not been able to open a bank account or obtain sufficient evidence due to his unlawful status in Australia.
The visa applicant referred to his former landlord’s statement that the sponsor had left their shared accommodation for a period of eight months from June 2012 that the delegate noted was not explained. The visa applicant confirmed this had occurred and said it was because the sponsor’s mother was due to visit and as he and the sponsor were not married at the time, they did not want to be living together. He said in the end, the sponsor’s mother did not visit but the sponsor had rented accommodation for six months so she did not move back in with him. The visa applicant said he did not consider this period as a separation.
The visa applicant was asked about the cancellation of his student visa in March 2009. He said it was actually cancelled in October 2008 but he had not known about it and had sought an extension in March 2009 but was out of time. He does not know why he had not found out about the cancellation but believed the notification was sent to his old address. He claimed his university where he was studying sent mail to his new address and he believed this meant the Department would also have it. The visa applicant claimed that by this time, he was in a relationship with the sponsor so he decided to take a chance and stay in Australia or the relationship would have no future. However, he decided to go back to India in 2014 where he and the sponsor were married.
The Tribunal explained that the evidence he had provided to the Department only established that he and the sponsor had shared accommodation in a share house in 2012 but did not demonstrate that they were in a long term spouse relationship prior to their marriage. The visa applicant conceded that bills during the time they lived together were in the sponsor’s name only and he had very little documentary evidence.
Evidence of the sponsor
The Tribunal explained to the sponsor that the visa applicant was required to satisfy Schedule 3 criteria unless there were compelling reasons for waiving the criteria. The sponsor said that when they applied for the partner visa in 2013 the visa applicant did not have a substantive visa but they are husband and wife. The sponsor claimed that she and the visa applicant were married on 28 March 2013 but in January 2009 they had commenced living together in Australia. She said they had first met in India prior to that. The sponsor conceded there was not much documentation supporting their relationship prior to their marriage that the sponsor said was due to the visa applicant’s status in Australia. She said it meant he could not obtain paperwork in his name. The sponsor said that they have now been married for more than two years and she is an Australian citizen. The sponsor said they were in a long term relationship prior to their marriage and that any of their friends could attest to it.
The sponsor referred to the period she did not live with the visa applicant for eight months that was said to be because her mother had intended to visit. She said she had lived with him before that and had only moved out because they were not married. The sponsor claimed that she shared with another couple for the eight month period and had made a commitment to them so she did not move back immediately. The sponsor said she had lived with the visa applicant since 2009 except for the eight month period when she lived at another address nearby. The sponsor outlined the various share houses that she claimed she and the visa applicant lived in from 2009. She said that even during the eight months they were not living together, they saw each other every day.
The sponsor told the Tribunal that she understood when she and the visa applicant applied for a partner visa that the visa applicant did not have a visa to remain in Australia but she reiterated that the relationship was and is genuine. She said that as she is an Australian citizen, she believed there was a legal right for the visa applicant to remain in Australia with her.
Evidence of the witness Ms Shah
The Tribunal asked the witness about the nature of the parties’ relationship before and after they were married. The witness said she and the visa applicant and sponsor were living in shared accommodation from 2010 until 2012 when she moved to another residence. The witness said there were a number of people sharing the bedrooms in the house and the visa applicant and sponsor had one of the rooms.
The Tribunal asked about the nature of the relationship during this time and she said initially they were boyfriend and girlfriend but later they became more sure of each other and decided to marry. The witness said during the time they lived together, the visa applicant and sponsor were a couple with common friends and social activities. She said there were no bills in individual names, the owner of the property split utilities between the people who were living in the house and made the details available in a common room.
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 there are compelling reasons for the waiver of 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 visa applicant came to Australia on 17 February 2006. His last substantive visa ceased on 15 March 2009 which was the relevant day according to the legislation. The application for a partner visa was lodged on 21 June 2013. As the visa applicant did not hold a substantive visa for more than 28 days before lodging the application for a partner visa, criterion 3001 is not met.
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]. The compelling reasons for not applying the Schedule 3 criteria must be reasons which are relevant to the purpose of permitting the person to make an application for a spouse visa in Australia: Monakova v MIMA [2006] FMCA 849 at [27]-[28]. The question of whether there are compelling reasons for not applying the Schedule 3 criteria must be considered in relation to circumstances existing at the time of application: Boakye-Danquah v MIMIA (2002) 116 FCR 557 at [39].
The compelling reasons for not applying the Schedule 3 criteria advanced by the visa applicant were a claimed long term de facto relationship prior to marriage to the sponsor in 2013. The evidence that had been provided to the Department consisted of statements by the visa applicant and sponsor; witness statements by three friends of the parties, a statutory declaration by a tenant in share accommodation who declared the visa applicant and sponsor lived at the residence for a year; and a statutory declaration and statement by a co-tenant of another property who stated the visa applicant and sponsor lived at that address for over three years. This witness, Mr Li Jun Huang declared that Ms Gandhi moved out between June 2012 and February 2013.
No further documentary evidence was provided to the Tribunal prior to the hearing in support of the claimed spouse relationship or of compelling reasons for not applying the Schedule 3 criteria. The visa applicant made submissions and the sponsor and a witness gave oral evidence at the Tribunal hearing regarding compelling reasons for the waiver of the Schedule 3 requirements.
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).
The visa applicant claimed his student visa had been cancelled in October 2008 but it was not until March 2009 that he found out about it. In an undated written statement provided with the original visa application, the visa applicant claims he and the sponsor decided he would stay in Australia anyway and they would continue living their life as before and concentrate on the sponsor’s studies. He says the sponsor completed her studies and later went through the process to obtain permanent residency in Australia. Only when the sponsor obtained residence did she and the visa applicant marry and submit a partner visa application. In evidence to the Tribunal, the visa applicant said he decided to “take a chance” and remain in Australia after his student visa ceased as he felt that the relationship would have no future if he left. Therefore, the visa applicant did not take any steps to regularise his visa status from 2009 until 2013 until the partner visa application was made.
At the Tribunal hearing, both the visa applicant and sponsor submitted that while they do not have a great deal of evidence of their spouse relationship, they are legally husband and wife. They claim that they were in a de facto relationship for two years prior to submitting their visa application and have since been married for a further two years. They therefore claimed a long term relationship as a compelling reason for the waiver of the Schedule 3 criteria.
In considering compelling reasons for the waiver of Schedule 3 criteria, the Tribunal must consider the circumstances at the time of application. Consideration of a long term relationship is a policy consideration only and is not binding on the Tribunal. However, irrespective of matters that may be considered compelling, the visa applicant has insufficient evidence of a long term relationship prior to the marriage in 2013. The visa applicant did not present any further evidence that would establish compelling reasons for the grant of the spouse visa.
Regarding the effect of separation, while the Tribunal understands there may be some hardship experienced by the parties in making an application off-shore, in the circumstances, they are also insufficiently compelling reasons for not applying the Schedule 3 criteria. The visa applicant has already returned to India to await the outcome of the review and the sponsor remains in Australia.
The Tribunal has considered all the circumstances of the parties both individually and cumulatively and is not satisfied that individually or taken together the circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is no information before the tribunal which would indicate the applicant meets any of the other sub criteria in cl.820.211.
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.
Wendy Banfield
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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