1413512 (Migration)

[2016] AATA 3176

1413512 (Migration) [2016] AATA 3176 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Suphansa Promma

CASE NUMBER:  1413512

DIBP REFERENCE(S):  CLf2011/207438

MEMBER:Kira Raif

DATE:28 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 28 January 2016 at 12:42pm

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 31 July 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Thailand, born in July 1981. She travelled to Australia in June 2008 holding a Student visa and she was granted another Student visa in Australia, which expired on 16 November 2011. The applicant applied for the Partner on 28 November 2011 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because he did not meet Item 3001 of Schedule 3 and there were not compelling reasons for not applying the criterion. The applicant seeks review of the delegate’s decision. 

3. The applicant appeared before the Tribunal on 28 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4.    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).

5.    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.

6.    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).

1. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

   Does the applicant meet Schedule 3 criteria?

2. In her declaration to the Tribunal received on 19 August 2015 the applicant stated that she entered Australia on a Student visa and was granted another Student visa which was valid until 16 November 2011. The applicant confirms that she made the application for the Partner visa on 28 November 2011.

3. The delegate concluded that the applicant did not meet Item 3001. The Tribunal finds, however, that if the applicant’s previously held Student visa expired on 16 November 2011 and the application for the Partner visa was made on 28 November 2011, then such an application was made within 28 days of the expiry of the last substantive visa. The Tribunal finds that the applicant meets Item 3001.

4. However, the Tribunal finds, having regard to the information in the applicant’s statutory declaration, that her last substantive visa expired on 16 November 2011 and that he applicant was not the holder of a substantive visa at the time she made the application for the Partner visa on 28 November 2011.

5. There is nothing before the Tribunal to indicate the applicant entered Australia as holder of a Diplomatic visa or a special purpose visa. The applicant must therefore meet Criterion 3004.

6. The applicant ceased to hold the substantive visa after 1 September 1994. The Tribunal must consider whether the applicant was not the holder of a substantive visa because of factors beyond her control.

7. The applicant did not address these matters in her primary application. In her declaration to the Tribunal the applicant stated that it was her intention to lodge the Partner application before the Student visa expired. She claims they tried to lodge the application after they married but did not know they could have lodged the application as a de facto couple and believed they had to be married. If they knew they could make the application as a de facto couple, they would have done that. The applicant claims that hey visited the office of DIBP many times before her Student visa expired but the application was not accepted until 28 November 2011 because the needed more documents.  Every time they visited, they were told the forms were incomplete and at no time were they advised that it would be an issue if the application was made late. The same evidence has been provided to the Tribunal by the sponsor.

8. The Tribunal has considered the applicant’s submission but finds these unconvincing. The Tribunal notes that information about Partner applications is well publicised on the Department’s website. Even a briefest search of the Department’s website offers a link to the fact sheet concerning Partner cases, which expressly states that an application may be made on de facto grounds. The applicant also had the option of contacting the Department to enquire whether a Partner application could be made on de facto grounds. She could have made contact with any migration agent. The Tribunal is of the view that this information was readily available to the applicant if she had taken steps to acquire the information.  The Tribunal is unconvinced by the applicant’s claim that she did not have the relevant information and would have made the application earlier if she knew she could. The Tribunal finds that the applicant’s failure to make the relevant inquiries was not a factor beyond her control.

9. Neither is the Tribunal convinced by the applicant’s claim that she tried to lodge the application earlier but it was not accept by the DIBP staff. The applicant’s evidence suggests that the applications she attempted to lodge were incomplete or did not have the relevant documents. Such applications may have been invalid and, as such, could not have accepted by the DIBP staff. Again, the Tribunal is of the view that information about what was required to make a valid visa application was readily available to the applicant if she had taken any steps to acquire that information. She could have read the information on the DIBP website or contacted Immigration or a migration agent, including a number of agencies that provide free immigration advice. It is not sufficient, in the Tribunal’s view, for the applicant to state that the Department should have accepted her application. It is the Tribunal’s view that the applicant could have taken more steps to ensure her application was complete and valid. It is also not apparent why the applicant first approached the Department on 16 November, the day her student visa was due to expire. It may have been more helpful if she did so before the last day. The Tribunal does not consider that any of these matters were beyond the applicant’s control.

10. In oral evidence to the Tribunal the applicant said that nobody reminded her to make the application and nobody sent her a letter. The Tribunal does not consider that it was anyone’s – other than the applicant’s – responsibility to monitor the period of her visa validity and to ensure she maintained a visa or made a visa application before her previous visa expired. The applicant also said they just got married and had a lot of preparations for the marriage and she had many things to think about that month. The Tribunal accepts that the applicant may have had many things to think about but in the Tribunal’s view, such matters are hardly beyond the applicant’s control. Significantly, the applicant informed the Tribunal they married on 11 November 2011. Her previous visa expired on 16 November 2011. That is, the couple had a few days after the marriage to lodge the application.

11. The applicant referred to her husband injuring his ankle after the marriage. Even if that is the case, that does not explain in the Tribunal’s view, the applicant’s failure to hold a substantive visa at the time the application was made. Ultimately it was the applicant’s responsibility to make the application and there is no reason she could not have completed the paperwork either herself or with the help of her husband. The Tribunal is not convinced that an injured ankle would have prevented the sponsor from helping the applicant complete the relevant paperwork.

12. The applicant and the sponsor claim that it took time to complete the paperwork and while the Tribunal accepts that may be the case, the Tribunal is of the view that the couple would have known much earlier that the applicant intended to apply for the Partner visa (even if she believed she needed the marriage certificate before the application could be made) and she would have also known when her Student visa was due to expire. In the Tribunal’s view, the applicant had ample opportunity to prepare the paperwork before the expiry of her Student visa. There is no obvious reason why the visa preparations could not have commenced earlier before the marriage certificate was issued. The Tribunal does not consider such matters were beyond the applicant’s control.

13. The applicant’s representative submits to the Tribunal that the couple had taken all possible steps to make the application on 16 November but they were unrepresented and unfamiliar with the process. The representative argues that the Department failed to accept the application when the couple approached the Department on 16 November and failed in their duty to inform the applicant of the consequences. The Tribunal does not accept these submissions because the Tribunal is mindful that only a valid application can be accepted and considered. If the applicant did not make a valid application 16 November, for any reason, the Department was unable to accept that application and even if some of the papers were accepted, the application would not have been considered as being validly made until it met the relevant requirements for making a valid visa application. The Tribunal does not consider that the Department’s failure to accept an invalid application was a circumstance beyond the applicant’s control.

14. Having considered the applicant’s circumstances, the Tribunal is not satisfied that the applicant was not the holder of a substantive visa because of factors beyond her control. The Tribunal is not satisfied the applicant meets Item 3004(c) and criterion 3004.

    Compelling reasons

15. 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.

16. 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].

17. In her written submission to the Tribunal the applicant stated that after the marriage, she and her husband planned to have children. She gave birth to their first child in August 2014. The applicant claims that she has no family in Australia other than her husband and child. The daughter is entirely dependent on her while the sponsor works and she cannot be separated from her child as the sponsor would be unable to look after the child. The Tribunal accepts that evidence, however, these matters occurred well after the time the application was made. The Tribunal is unable to have regard to the applicant’s present circumstances that exist after the application was made.

18. The applicant refers to her husband’s employment and claims that if he had to look after the child if she was to leave Australia, he may lose his job and the family would suffer extreme hardship as they did not have enough savings. The applicant claims that if she was forced to go to Thailand to lodge her Partner application overseas, her family would suffer extreme hardship and distress. Again, the Tribunal notes that it is unable to have regard to the applicant’s present circumstances.

19. The applicant’s spouse informed the Tribunal in oral evidence that they approached Immigration to lodge the application but they were told the application was not complete and he had to approach his family and they were not available for a few days and they had to approach Immigration again. The Tribunal accepts that evidence, however, the Tribunal is not convinced these are compelling reasons. As noted elsewhere, the Tribunal is of the view that the process of completing the application could have commenced more than a couple of days before the visa expired. The sponsor noted that he was busy with wedding preparations and he is not good with paperwork and it took time. Again, while the Tribunal accepts that evidence, the Tribunal is of the view that the couple had ample time before the visa expired to prepare and lodge the application, including a few days after registering marriage.

20. The applicant’s representative submitted that the couple did approach the Department on 16 November, on the day the visa expired, but the application was not accepted and the Immigration officer failed to inform them of the consequences. The Tribunal has formed the view that information about the application process is readily available but even accepting that the couple did make several attempts to lodge the application and made an effort to apply on time, that does not establish the existence of compelling reasons once the application was in fact made. For the purpose of the waiver, the issue is not why the application was made late but the existence of compelling reasons once the application was made.

21. The representative submits that the applicant has established life in Australia and if she was to leave for Thailand, there would be financial hardship for the family, particularly as the sponsor would have to leave his job and travel to Thailand. The Tribunal does not accept that evidence. There is little documentary evidence before the Tribunal about what financial arrangements would exist if the couple would travel to Thailand. There is little evidence about what savings would be available to the couple or whether the applicant or the sponsor would be able to get a job in Thailand to support the family or whether they could receive assistance from family or friends. The Tribunal is not satisfied on the evidence before it that financial hardship would be caused if the Schedule 3 requirements are not waived. The Tribunal does not consider this to be a compelling reason for not applying the criterion.

22. The representative submits that, alternatively, if the sponsor remains in Australia while the applicant travels overseas, he would be separated from his family. The representative refers to the applicant having established a family in Australia. The representative submits that the couple want to have more children and build a house and the applicant wants to work in Australia and make a contribution to Australia. The Tribunal accepts that if the sponsor remains in Australia, there would be a period of separation between the applicant and the sponsor. The Tribunal is mindful that the separation would be a temporary one and may not be a lengthy one. The Tribunal accepts that the couple prefer not to be separated and prefer to be together. The Tribunal also accepts that the applicant prefers to remain in Australia. However, the Tribunal is not satisfied that any of these matters constitute compelling reasons. Such circumstances are quite common in many relationships.

23. The representative submits that it would be ‘cruel’ to take an Australian citizen child to Thailand. The Tribunal considers that submission far-fetched. There is no obvious reason why Australian born children cannot travel overseas, particularly on a temporary basis.

24. Having considered the applicant’s circumstances singularly and cumulatively, the Tribunal is not satisfied there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

25. The Tribunal has found that the applicant does not meet Item 3004 and that there are no compelling reasons to waive the Schedule 3 criteria. The Tribunal is not satisfied that the applicant meets cl.820.211(2)(d)(ii). There is no evidence that the applicant meets the alternative criteria in cl.820.211(3) – (9).

    Conclusion

26. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Kira Raif
    Senior Member