1409924 (Migration) - [2015] AATA 3088

1409924 (Migration) [2015] AATA 3088 (15 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sandeep Sharma
CASE NUMBER:  1409924
DIBP REFERENCE(S):  CLF2013/82852
MEMBER:Hugh Sanderson
DATE:15 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 15 July 2015 at 11:18am

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 May 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 16 April 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the parties were in a genuine and continuing relationship.
Background
The applicant is a citizen of India and is currently 28 years old. He first entered Australia on 18 July, 2008 holding a subclass 573 Student visa. Apart from one month in September 2009 he has remained in Australia since then.
The applicant’s Student visa was cancelled on 30 August, 2012. He has not held a substantive visa since that date. After the department cancelled his visa, the applicant applied to the tribunal (differently constituted) seeking a review of that decision. The tribunal found that the applicant’s enrolment in the course of study he had in Australia was cancelled because of non-payment of fees in February 2012. The tribunal found that the basis for the reason of the cancellation of his visa had been established and that there were no exceptional circumstances beyond the applicant’s control why the visa should not be cancelled. The decision of the department to cancel the applicant’s Student visa was affirmed on 9 January, 2013.
The sponsor of the applicant is Luafata Solomua. She was born in Samoa and is currently 24 years old. She is an Australian citizen and has provided to the department a copy of her Australian passport. Her parents and six siblings all reside in Australia.
The parties claimed that they first met each other on 21 May, 2012 at the Gate Gourmet where they were both working. They claimed that they started dating in August 2012. Although there were some problems in the relationship, the sponsor claimed that she committed herself to the relationship after returning from a holiday in Samoa in January 2013.
The parties were married…

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 1409924 (Migration)

Details

AGLC: 1409924 (Migration) [2015] AATA 3088
Case: [2015] AATA 3088
Decision Date: 15 July 2015

CaseChat Overview and Summary

The matter before the tribunal was an appeal against a decision to refuse to grant the applicant a Partner (Temporary) visa. The applicant was a non-citizen who had previously held a Subclass 572 Student visa which had been cancelled, and who sought to enter Australia on a Partner (Temporary) visa. The tribunal had to determine whether the applicant met the Schedule 3 criteria or whether there were compelling reasons for not applying those criteria. The tribunal found that the applicant did not meet the criteria, as the visa application was lodged more than seven months after the applicant last held a substantive visa. The tribunal also considered whether there were compelling reasons for not applying the criteria but found that there were none. The tribunal therefore affirmed the decision not to grant the applicant a Partner (Temporary) visa.

The tribunal considered the applicant's circumstances, including the fact that the applicant had a child with the sponsor, who was clearly bonded to both the applicant and the sponsor. However, the tribunal found that this was not enough to constitute compelling reasons for not applying the Schedule 3 criteria. The tribunal also considered the possibility of Ministerial intervention but found that it was not appropriate in this case. The tribunal therefore affirmed the decision not to grant the applicant a Partner (Temporary) visa.

No specific orders were made by the tribunal. The tribunal's decision was to affirm the decision not to grant the applicant a Partner (Temporary) visa. The tribunal did, however, express support for an application for Ministerial intervention in light of the current circumstances of the applicant and his daughter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 the applicant meets the time of application criteria that he meets the Schedule 3 criteria. If he does not, there must be compelling reasons for not applying those criteria. The tribunal has accepted the evidence of the parties as to the genuineness of their relationship. The fact that the parties have a child together, who is clearly bonded to both the applicant and the sponsor, provides the strongest evidence in support of the claim that the parties are in a genuine and continuing relationship. In assessing the application, the tribunal has only considered if the applicant meets the time of application criteria of meeting the Schedule 3 criteria and, if he does not, if there are compelling reasons, at the time of the application, for not applying those 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 applicant’s last substantive visa was a subclass 572 Student visa. This visa was cancelled on 30 August, 2012 on the basis that the applicant was not enrolled in any course of study and had not been enrolled in any course of study since 2 February, 2012. An application to the tribunal (differently constituted) was not successful and the decision of the department to cancel the applicant’s Student visa was affirmed on 9 January, 2013. The applicant has not held a substantive visa since 30 August, 2012. The Partner visa application was not filed until 16 April, 2013, more than seven months after the applicant last held a substantive visa. 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.

Decision

Reasons for decision

In light of the current circumstances of the applicant, and in particular his daughter, the tribunal supports an application for Ministerial intervention.DECISION The tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Hugh SandersonMemberATTACHMENT - 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.Hugh SandersonMemberATTACHMENT - 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.