1416720 (Migration) - [2015] AATA 3840

1416720 (Migration) [2015] AATA 3840 (1 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gergess Youssef
CASE NUMBER:  1416720
DIBP REFERENCE(S):  CLF2013/198335
MEMBER:Nicholas McGowan
DATE:Tuesday December 1, 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 01 December 2015 at 12:16pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On August 15, 2013 the applicant applied for a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act) on the basis that he was in a spouse relationship with an Australian citizen (his sponsor), Ms Jessica Karen Vico (03/10/1989).
On September 17, 2014 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d) or any of the alternate provisions within regulation 820.211. The delegate found the applicant was not the holder of a substantive visa at the time he lodged the partner visa application. The delegate considered all the circumstances of the application and concluded there were not compelling reasons to not apply the Schedule 3 criteria in this case.
On October 8, 2014 the applicant lodged an application for review of the decision to refuse his Partner (Temporary) (Class UK) visa. The applicant appeared before the Tribunal on November 26 to give evidence. An interpreter was provided.
As the applicant did not provide the Tribunal with a copy of the delegate’s Decision Record, the Tribunal put the adverse information therein, to him to comment on or respond to. The information was that he did not hold a substantive visa at the time of application. The applicant acknowledged he understood the information being put to him, and confirmed he understood how that information is relevant to the criteria he is being assess against, and that if relied upon, it could be part (or whole) of the reason why the Tribunal might affirm the decision under review. The applicant was provided with an opportunity to comment on or respond to the information orally, including being advised that he could request additional time to comment on or respond to the information at a later date. The applicant told the Tribunal he had nothing to add to the information. The oral evidence of the applicant later in the hearing (in regards to the date when his last substantive visa ceased) was consistent with the information put to him at the beginning of the hearing.
ISSUE AND CONSIDERATION OF EVIDENCE
As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them.
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…

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 1416720 (Migration)

Details

AGLC: 1416720 (Migration) [2015] AATA 3840
Case: [2015] AATA 3840
Decision Date: 1 December 2015

CaseChat Overview and Summary

The case involves an applicant who applied for a spouse visa in Australia, but did not hold a substantive visa at the time of application. The matter was heard by the Tribunal which determined that the applicant did not satisfy the criteria for the grant of the visa. The Tribunal was required to determine if there were compelling reasons to not apply the Schedule 3 criteria, which require an applicant to have lodged their application within 28 days of the relevant day. The Tribunal found that the applicant did not meet the Schedule 3 criteria, as the application was lodged more than 28 days after the relevant day.

The Tribunal considered the compelling reasons for not applying the Schedule 3 criteria, which must be relevant to the purpose of permitting the person to make an application for a spouse visa in Australia. The Tribunal noted that the compelling reasons should be sufficiently convincing to move a decision-maker to exercise discretion to waive the requisite criteria. However, the Tribunal found that the applicant did not provide any compelling reasons to not apply the Schedule 3 criteria, and therefore the criteria must be applied.

The Tribunal found that the applicant did not satisfy the criteria for the grant of the visa, as the application was not lodged within 28 days of the relevant day and there were no compelling reasons to not apply the Schedule 3 criteria. The Tribunal affirmed the decision under review.

The Tribunal affirmed the decision under review, and the applicant's application for the spouse visa was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As the applicant did not provide the Tribunal with a copy of the delegate’s Decision Record, the Tribunal put the adverse information therein, to him to comment on or respond to. The information was that he did not hold a substantive visa at the time of application. The applicant acknowledged he understood the information being put to him, and confirmed he understood how that information is relevant to the criteria he is being assess against, and that if relied upon, it could be part (or whole) of the reason why the Tribunal might affirm the decision under review. The applicant was provided with an opportunity to comment on or respond to the information orally, including being advised that he could request additional time to comment on or respond to the information at a later date. The applicant told the Tribunal he had nothing to add to the information. The oral evidence of the applicant later in the hearing (in regards to the date when his last substantive visa ceased) was consistent with the information put to him at the beginning of the hearing. ISSUE AND CONSIDERATION OF EVIDENCE As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them. 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). 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). In this case, the oral evidence of the applicant at the hearing was that he last held a substantive visa on November 17, 2010 (when his TU 572 student visa ceased) and the visa application was lodged more than 28 days later on August 15, 2013. Therefore, Schedule 3 criteria 3001 is not met. This information was also contained in the Delegate’s Decision Record, and to afford the applicant every opportunity to respond, the Tribunal had previously put that information formally to the applicant, including advising him of his rights. 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.Compelling reasons The Schedule 3 criteria are ‘time of application’ criteria. The Tribunal is required to consider the circumstances existing at the time of application in considering whether there are compelling reasons to not apply the Schedule 3 criteria: Boakye-Danquah v MIMIA [2002] FCA 438 at [39]. While for the purposes of both the waiver in cl.820.211 and Schedule 3, the term ‘compelling’ is not defined, the reasons should be sufficiently convincing to move a decision-maker to exercise discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA [2005] FCAFC 77 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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