1415513 (Migration)

[2015] AATA 3045

1415513 (Migration) [2015] AATA 3045 (16 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415513

DIBP REFERENCE(S):  CLF2013/57933

MEMBER:Margie Bourke

DATE:16 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 16 July 2015 at 4:58pm

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 28 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 15 March 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.

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

4. The applicant appeared before the Tribunal on 16 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence the sponsor’s [mother], the [sponsor], and two other witnesses [Witness 1] and [Witness 2].

5. The applicant was represented in relation to the review by his 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.

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

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

9. 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).

10. 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

11. 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.

12. The applicant told the Tribunal he came to Australia on 14 April 2008 as the holder of a student visa. The student visa ceased on 10 September 2011 and the applicant stated he had not held a substantive visa since that date. The Tribunal has considered the dates recorded in the Department’s decision record dated 28 August 2014, a copy of which was provided to the Tribunal by the applicant. Based on the evidence before it, the Tribunal is satisfied that the applicant last held a substantive visa on 10 September 2011, and for the purposes of consideration of schedule 3 criteria  10 September 2011 is the ‘relevant day’.

13. The applicant stated that he applied for a partner visa on 15 March 2013. The Tribunal has considered the application forms in the Department file. The Tribunal is satisfied that the application for the partner visa which is the subject of this review was made on 15 March 2013. The Tribunal is also satisfied that the applicant was the holder of a bridging visa at all relevant times between the relevant day and the date of the application for the partner visa, and therefore at no time was unlawfully in Australia. The Tribunal is satisfied that the application for the visa was not made within 28 days of the relevant day.

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

    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. The Tribunal has considered the applicant’s written statement to the Tribunal dated 15 July 2015 and the applicant’s written statement to the tribunal dated 13 September 2013, in relation to compelling reasons for not applying the Schedule 3 criteria. The Tribunal accepts that the sponsor is eight and a half months pregnant, but cannot consider this matter as a compelling reason as it was not a circumstance that existed at the time of application.

18. The Tribunal has considered the evidence of the emotional and financial effects upon the sponsor if the applicant had to return to India at the time of application to lodge the application offshore.  The Tribunal accepts that at the time of application the applicant was employed full-time, although after lodging the application the applicant was unable to work until his work rights were approved. The Tribunal accepts that the sponsor was a young woman who had been living independently from her parents for two years, had been married for less than five months and had completed studies and been employed in the childcare industry for some time.  The Tribunal accepts that the financial commitments of the parties involved a tenancy and a personal loan in addition to general living expenses. Initially the Tribunal did not consider the financial effects on the sponsor of the applicant being required to leave Australia could amount to compelling reasons.

19. The Tribunal is satisfied, based on the evidence before it that the parties at the time of application had a rental commitment of $360 per week. The Tribunal accepts that the parties had a boarder who contributed $120 per week to the rental commitment. The Tribunal accepts that the parties also had a personal loan in the amount of $35,000, and various credit card and utility bill commitments as well as general living expenses.

20. However, the Tribunal accepts the evidence that the financial dependence of the sponsor upon the applicant was a bit more complex than it first appeared. The applicant and the sponsor claimed that the sponsor was financially dependent upon the applicant, as the applicant was the main breadwinner in the relationship and the sponsor worked casually on-call and did not have employment security. In reaching its time of application findings, the Tribunal has applied the principles espoused in Bretag v MILGEA [1991] FCA 582, in that it has had regard to the subsequent history of a matter so long as it tends to logically show the existence or nonexistence of facts relevant to the issue to be determined. The Tribunal is satisfied that at the time of application the sponsor had completed her certificate III and diploma in children’s services, but had found it difficult to obtain permanent employment, and in fact at the time of application was on call for five different childcare centres. The Tribunal accepts that the sponsor received work at approximately three childcare centres or three days each week at the time of application. The Tribunal has considered that subsequent to the time of application the sponsor was made redundant, and after receiving a study allowance, obtained a training position and was then made redundant from that training position also. The Tribunal has considered that the sponsor spent several months unemployed in 2013 and 2014. The Tribunal is satisfied that the sponsor was financially dependent upon the applicant and did not have employment security at the time of application.

21. The Tribunal has also considered the oral evidence of the sponsor who stated that if the applicant had to return to India she would not have been able to maintain their financial commitments on her own and would have had to leave the rental property and forego on their personal loan. The Tribunal has also considered the sponsor’s evidence that if the applicant had to return to India she would have felt “stuck” without the applicant to support her and does not think she would have coped socially. The Tribunal has given weight to the evidence of the sponsor’s mother and the two witnesses. The Tribunal has given weight to the evidence of [Witness 1] who stated that the sponsor relies on the applicant for support. The Tribunal has considered and given weight to the evidence of the sponsor’s mother who stated (although she stated has more concerns for her daughter now that she is 8 ½ months pregnant) she was concerned for her daughter at the substantial interruption to their lives if the applicant was required to return to India in 2013.

22. The Tribunal has considered all the evidence before it, and is satisfied that collectively the evidence of the effect of the emotional and financial hardship upon the sponsor at the time of application if the applicant was required to lodge h his application offshore amounts to compelling reasons for not applying the Schedule 3 criteria.

23. 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).

24. 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

25. 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.