1414118 (Migration)

[2015] AATA 3292

1414118 (Migration) [2015] AATA 3292 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414118

DIBP REFERENCE(S):  CLF2013/236751

MEMBER:Margie Bourke

DATE:14 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211(2)(d) of Schedule 2 to the Regulations.

Statement made on 14 July 2015 at 1:54pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 4 August 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 applied for the visa on 24 September 2013 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate was not satisfied that the applicant met the Schedule 3 criterion, and the delegate was not satisfied there were sufficiently compelling reasons for not applying the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 22 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant's partner]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The main issue in the present case is whether there are compelling reasons for not applying the Schedule 3 criteria.

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

   Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

8. 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).

9. 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

10. 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.

11. The applicant stated she arrived in Australia on 22 August 2009 as the holder of a student visa. The applicant stated the student visa was cancelled on 3 July 2012, and she did not hold another substantive visa after that date.  The Tribunal has considered the Department’s decision record dated 4 August 2014, a copy of which was provided to the Tribunal by the applicant. The Tribunal is satisfied, based on the evidence of the applicant which is consistent with the dates recorded in the Department’s decision record, that the applicant last held a substantive visa on 3 July 2012.  For the purposes of Schedule 3 requirements, the Tribunal is satisfied in this matter that the ‘relevant day’ is 3 July 2012.

12. The Tribunal is satisfied, based on the evidence of the applicant and the application forms, that the application for the visa which is the subject of this review was made on 24 September 2013. The Tribunal is satisfied the application for the visa was not made within 28 days of the ‘relevant day’.

13. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

14. 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.

15. 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].

16. Based on the evidence of the applicant, which is consistent with the Department’s decision record dated 4 August 2014, the Tribunal is satisfied the applicant applied for a review of the cancellation of the student visa on 3 July 2012.  The Tribunal is satisfied the applicant took steps to resolve her visa status, and was at most times after the ‘relevant day’ the holder of a bridging visa, and not unlawfully in Australia.  The Tribunal accepts there were financial difficulties which prevented the applicant from completing her studies.   The Tribunal has considered these matters, and does not consider they amount to compelling reasons for not applying the Schedule 3 criteria. 

17. The Tribunal is satisfied, based on the oral evidence of the applicant and the sponsor, and the written evidence of the sponsor and the sponsor’s father, that the applicant moved into the sponsor’s and sponsor’s father’s home in August 2013, approximately six weeks before the visa application was lodged.  The Tribunal is satisfied the applicant and sponsor allowed their relationship to develop slowly to give the sponsor’s father time to accept the change involved in the relationship.  The Tribunal is satisfied the parties married on 29 March 2014.  Whilst the Tribunal accepts these facts, the circumstances of being in a defacto relationship for approximately six weeks and planning to marry are not compelling reasons for not applying the Schedule 3 criteria.

18. The applicant and the sponsor stated there would be an effect on the sponsor if the applicant had to return to Vietnam to lodge the application for the visa.  The applicant stated she looks after him, when he stresses at work, she cooks and cleans, she relieves his back pain, she assists in caring for the sponsor’s father and the sponsor’s daughter of whom he has shared custody.  The Tribunal has considered this claim but as the applicant had lived with the applicant on a full time basis for approximately six weeks at the time of application, the Tribunal is not satisfied that the sponsor’s dependence on the applicant amounts to a compelling reason for not applying the Schedule 3 criteria.

19. The applicant and sponsor also claimed the applicant had formed a strong bond with the sponsor’s daughter, aged eight years at the time of application. The Tribunal accepts that the sponsor and the child’s mother have a shared custody arrangement involving alternate weeks, but that the child often goes to the sponsor’s house after school to be cared for by her grandfather as her mother works. The sponsor stated other relatives are also involved in the child’s after school care. The applicant and sponsor stated the applicant had time for the child and they did many things together, including ‘manga’, an artform of Japanese animation.  The Tribunal has considered the written letter from the sponsor’s father who states his granddaughter “adores” the applicant and they have formed a strong bond.  The Tribunal has considered the letter from [Friend 1] (a friend of both parties) dated 10 June 2015, who stated the sponsor’s daughter had “affection” for the applicant. The Tribunal has considered the letter of [Friend 2] (a friend of the parties) dated 8 June 2015, who stated the applicant has been looking after the sponsor’s daughter who has grown to be “close and dependent” on the applicant.

20. The Tribunal accepts the applicant had cared for the sponsor’s daughter before and after school, and had formed a positive relationship with her.  The Tribunal also has considered that the child resides every second week with her mother, and would continue to reside the alternate week with her father.  At the time of application, the Tribunal is satisfied the applicant had been an increasing presence in the child’s life, since 2011. The Tribunal balanced this with the fact the applicant had lived in the child’s father’s home for approximately six weeks. On the evidence before it at the hearing the Tribunal was not satisfied that if the applicant had to leave at the time of application to lodge the application offshore, the sponsor’s daughter would be seriously affected.   However, the evidence indicated that if this point was more intently assessed, the evidence may reveal more detail as to the extent of the relationship between the applicant and the sponsor’s daughter at the time of application.  Therefore, the Tribunal granted the applicant two weeks to provide post hearing evidence as to the effect on the sponsor’s daughter if the applicant was required to leave Australia at the time of application to lodge the application for the visa offshore.  The Tribunal indicated to the applicant and the sponsor it accepted their oral evidence, and requested the applicant provide detailed evidence from independent witnesses if possible.

21. The Tribunal has considered the representative’s submission dated 2 July 2015 and the written statements of [Friend 2], [Friend 1], [Friend 3] and [the applicant’s partner], provided after the hearing.  The Tribunal accepts that the relationship between the applicant and the sponsor’s daughter has developed form 2011, and that at the time of application the relationship between the applicant and the sponsor’s daughter was a strong bond. The Tribunal accepts the applicant assisted the sponsor’s daughter with craft activities, personal hygiene matters, homework, and domestic activities like cooking.  The Tribunal is satisfied, based on the written evidence before it, that although the applicant and sponsor had formally been in a defacto relationship at the time of application for only six weeks, the relationship between the applicant and the sponsor’s daughter had developed intosomething like a stepmother- stepdaughter relationship over the period of two years. The Tribunal has given weight to the statement of [Friend 1] that the child would have missed the applicant “terribly” if there had been any extended absence after “their strong bond began in 2011/2012”.  The Tribunal has given weight to the opinion of [Friend 2] that from August 2013, the child would have been “deeply affected” by a prolonged absence from the applicant.  The Tribunal has considered the statement of [Friend 3] , particularly that the applicant has assumed many parenting responsibilities of the sponsor’s daughter, and that they have a “very strong relationship and get along extremely well”.  The Tribunal also gives weight to the written evidence of the sponsor’s father that the applicant has “excelled in helping, guiding and supporting” the child, and that it would be “detrimental” to the child’s “happiness and wellbeing” if the applicant was required to return to Vietnam to lodge the application. For these reasons, after considering all the evidence before it, the Tribunal is satisfied that if the applicant had to leave the country to lodge the application offshore at the time of application, her absence would have had a serious and detrimental effect on the sponsor’s child, to the extent that it amounts to a compelling reason for not applying the Schedule 3 criteria.

22. 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).

23. 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

24. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211(2)(d) of Schedule 2 to the Regulations

    Margie Bourke
    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.