1409646 (Migration) - [2016] AATA 3821

1409646 (Migration) [2016] AATA 3821 (26 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manish Sharma
CASE NUMBER:  1409646
DIBP REFERENCE(S):  CLF2012/64087
MEMBER:Susan Trotter
DATE:26 April 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 26 April 2016 at 3:05pm

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 20 May 2014 to refuse to grant the applicant, Manish Sharma, a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (the Act).
Mr Sharma applied for the visa on 23 March 2012 on the basis of his relationship with his sponsor, Mrs Mafi Sharma (nee Feiloakitau). 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.
The delegate refused to grant the visa to Mr Sharma on the basis that he did not satisfy clause 820.211(2)(d) and clause 820.221 of the Regulations, because the delegate was not satisfied that he met the required Schedule 3 criteria in the Regulations, nor that there were compelling reasons to waive the Schedule 3 requirements.
Mr Sharma lodged an application for review of the delegate’s decision with the Tribunal on 30 May 2014. Mr Sharma appeared before the Tribunal on 13 January 2016 and 12 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sharma at both hearings. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages. Mr Sharma was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES
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: clause 820.211(2)(d). These criteria are set out in the attachment to this decision.
The delegate’s decision record, a copy of which was submitted to the Tribunal by Mr Sharma when he made his application, states that the Department’s records show that Mr Sharma last held a substantive visa on 9 December 2011. Departmental records show that Mr Sharma did not enter Australia as the holder of a Subclass 995 visa or special purpose visa. The issue in this case is…

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 1409646 (Migration)

Details

AGLC: 1409646 (Migration) [2016] AATA 3821
Case: [2016] AATA 3821
Decision Date: 26 April 2016

CaseChat Overview and Summary

This decision concerned an application for a Partner (Temporary) (Class UK) visa by Mr Sharma, who last held a substantive visa on 9 December 2011 and lodged his application on 23 March 2012. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the Schedule 3 criteria were met at the time of the application and, if not, whether there were compelling reasons for not applying those criteria.

The Tribunal was required to consider two primary issues. Firstly, whether Mr Sharma met the Schedule 3 criteria, specifically criterion 3001, which requires an application to be made within 28 days of the "relevant day". Secondly, if the Schedule 3 criteria were not met, the Tribunal had to assess whether there were compelling reasons to waive their application, considering the circumstances presented by Mr Sharma.

The Tribunal found that Mr Sharma did not meet criterion 3001 of Schedule 3, as his application was lodged more than 28 days after the relevant day (9 December 2011). In relation to the second issue, Mr Sharma submitted that his genuine relationship with his wife, his close relationship with his wife's daughter, and a recent injury to his mother-in-law constituted compelling reasons for not applying the Schedule 3 criteria. However, the Tribunal noted that while previous policy guidance and explanatory statements had provided examples of compelling reasons such as long-standing relationships or the existence of Australian-citizen children, the policy had been revised to focus on the circumstances leading to an applicant becoming unlawful. The Tribunal concluded that the reasons provided by Mr Sharma did not constitute compelling reasons for a waiver under the current policy framework.

Consequently, the Tribunal affirmed the decision not to grant Mr Sharma the Partner (Temporary) (Class UK) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that the issues for the Tribunal to determine are:(a) Were the Schedule 3 criteria met at the time of application?; and, if not,(b) Are there compelling reasons for not applying the Schedule 3 criteria?CONSIDERATION OF CLAIMS AND EVIDENCEIssue 1 - Were the Schedule 3 criteria met at the time of the visa application? As already noted, Mr Sharma last held a substantive visa on 9 December 2011. This visa application was lodged on 23 March 2012. The Tribunal therefore finds that Mr Sharma’s visa application was made more than 28 days after the relevant day, 9 December 2011. Criterion 3001 is not met and it is unnecessary for the Tribunal to then consider criteria 3003 and 3004. Given criterion 3001 was not met, the Schedule 3 criteria were not met at the time of the visa application.Issue 2 - Are there compelling reasons for not applying the Schedule 3 criteria? When queried as to whether there are any reasons as to why he could not leave Australia to lodge a partner visa application, Mr Sharma told the Tribunal that he and his wife are in a genuine relationship and need each other. They would miss each other deeply if he had to leave Australia to apply for a visa. Further, he has a very close relationship with his wife’s daughter. He is the only father she knows. She relies upon him and it is his intention to adopt her once his visa issues are finalised. Further, more recently, his mother-in-law has suffered an ankle injury and his presence in Australia is necessary to assist her because of the injury. The Tribunal considered each of the matters raised, and others, as follows.Genuine Relationship/ Length of Relationship Mr Sharma’s agent has submitted that the parties have been married for four years and refers to Departmental Policy where “compelling reasons include reasons such as the parties having a child or an existence of a long standing relationship”. He further referred to reference to the Explanatory Statement accompanying the introduction of the relevant provisions in decisions by other members of this division of the Tribunal. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75, relevantly referred to the following circumstances as examples of where a waiver may be justified by the hardship that would result if the Schedule 3 criteria were not waived:(a) there are Australian-citizen children from the relationship; or(b) the applicant and his or her nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer. Further, previous versions of the Department’s Policy (PAM3) mirrored the examples provided in the Explanatory Statement, as well as suggesting a range of other examples of circumstances that would amount to compelling circumstances, as noted by Mr Sharma’s representative in his written submissions. However, those examples were removed on 1 July 2014 and the policy guidance now focuses on the circumstances that resulted in the applicant becoming unlawful. The expectation of the revised policy is that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a partner visa.

Decision

Reasons for decision

For the reasons above, Mr Sharma 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.Susan TrotterMember ATTACHMENT - 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.Susan TrotterMember ATTACHMENT - 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.