1419441 (Migration)

[2015] AATA 3731

1419441 (Migration) [2015] AATA 3731 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Elzbieta Wolowiec

CASE NUMBER:  1419441

DIBP REFERENCE(S):  clf2014/70727

MEMBER:Amanda Goodier

DATE:26 November 2015

PLACE OF DECISION:  Perth

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 and cl.820.221 of Schedule 2 to the Regulations

Statement made on 26 November 2015 at 4:16pm

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 12 November 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 May 2014 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)(ii)  as the delegate was not satisfied there were compelling reasons for waiving the Schedule 3 criteria. A copy of the delegate’s decision was attached to the application for review.  A considerable amount of evidence was provided to the Tribunal as to the genuineness of the relationship.

4. The applicant and sponsor appeared before the Tribunal on 18 November 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse relationship

6. Clauses 820.211 (2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

7. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  A certified copy of a marriage certificate issued by the Registry of Births, Deaths and Marriage (Vic) was provided indicating that the parties were married on 25 February 2014.  On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

   Are the other requirements for a spousal relationship met?

   Financial aspects of the relationship

9. The applicant and sponsor opened a joint bank account to share expenses from the time of their marriage.  The applicant has not worked during their relationship and is supported financially by the sponsor.  The applicant indicates that she will soon be eligible for a small pension and this will contribute to their finances.

10. The Tribunal is satisfied that there is a pooling of financial resources and sharing of day to day finances and the financial aspects of this relationship evidence a spousal relationship. 

    Nature of the household

11. Evidence was provided that indicate the applicant and sponsor reside together and have established a household together.

12. The Tribunal is satisfied on the basis of the evidence provided that the nature of the household evidences a spousal relationship.

    Social aspects of the relationship

13. The parties gave evidence that from the time they commenced their relationship they have held themselves out as a couple and that continues.  The Tribunal finds that the parties have provided statutory declarations from friends attesting that the relationship between the parties is a genuine, caring and loving one.    The statements also refer to the parties holding themselves out as a couple to their family and friends from early in their relationship and that they attended social activities as a couple.

14. The Tribunal finds that the parties represent themselves as a couple and plan their social activities on this basis.  The Tribunal also finds that others accept them as a couple and socialise with them as a couple.  Evidence was presented that that they represent themselves as being a couple to others outside their circle of friends and family. 

    Nature of persons commitment to each other

15. Both the applicant and sponsor provided statements in support of the genuineness and continuing nature of their relationship and that they saw their relationship as being long term.

16. The applicant indicated that the sponsor and her had met in Poland many years ago prior to their first marriages.  Following the death of the sponsor’s wife, the sponsor searched for old friends in Poland and eventually located the applicant.  They communicated on a regular basis through skype and email for some time.  The sponsor intended to visit the applicant but a shoulder injury prevented him so the applicant applied for a tourist visa and travelled to Australia.  The sponsor proposed a few weeks later and they arranged to be married on 25 February 2014.   Not long after their marriage, all the applicant’s belongings arrived in Australia. 

17. The Tribunal is satisfied on the evidence that at the time the application was lodged, the applicant and sponsor were married and living together.   The Tribunal is satisfied that at the time the application was lodged the applicant and sponsor provided a degree of companionship and emotional support to each other and saw the relationship as long term and that this continues. 

18. The Tribunal is satisfied on the evidence presented that at the time of application the applicant and sponsor had a mutual commitment to a shared life together to the exclusion of all others, that it was genuine and continuing and they lived together and not separately and apart on a permanent basis and that this continues. 

19. Given these findings the Tribunal is satisfied that at the time the visa application was made the parties were in a spousal relationship.

20. Therefore the applicant meets cl.820.211(2)(a).

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

21. 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).

22. 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

23. 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.

24. According to the delegate’s decision, the applicant last held a substantive visa on 28 February 2014, which is considered to be the relevant day.  She lodged this application on 15 May 2014.  The Tribunal is satisfied on the evidence that this application was not made within 28 days of the relevant day.

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

    Compelling reasons

26. 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.

27. 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].

28. The Schedule 3 Criteria are clearly prescribed as ‘time of application’ criteria. In this respect, the Courts have confirmed it is erroneous for the Tribunal to consider compelling reasons or circumstances that arose or occurred after the date of application. Likewise to the approach it adopted in assessing the applicant and sponsor to be in a spouse relationship at the time of application, when assessing if compelling reasons exist, the Tribunal may have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of application. In the context of a time of application criterion the Tribunal would only apply these principles if the events or circumstances relied upon gave further weight to a compelling circumstance that was already in existence at the time of application.

29. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.

30. According to the delegate’s decision, the applicant arrived in Australia on 29 November 2013 as the holder of a subclass 651 tourist visa that ceased on 28 February 2014.  On 15 May 2014, she applied for this visa on the basis that she was in a genuine relationship with the sponsor.  As discussed with the applicant at hearing, a genuine relationship is not sufficient to establish compelling reasons for waiving the Schedule 3 criteria.

31. Evidence was provided to the Tribunal that the sponsor has health issues requiring on-going medical treatment.  His treating doctor states that he requires the close supervision, care and support of his wife. 

32. After considering the evidence provided, the Tribunal considers the sponsor’s health issues together with their ages of the applicant and sponsor compelling reasons for waiving the Schedule 3 criteria.  

33. 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).

    CONCLUSIONS

34. The Tribunal finds that at the time of application the applicant was the partner of a person who is an Australian citizen, that the applicant was sponsored by that person and the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). Accordingly, the Tribunal finds that the applicant meets cl.820.211(2)(a) and (c).

35. The Tribunal further finds that there are compelling reasons for not applying the relevant Schedule 3 criteria. Accordingly, the Tribunal finds that the applicant meets cl.820.211(2)(d). The applicant therefore satisfies cl.820.211(2).

36. The Tribunal finds that the applicant continues to meet the requirements of cl.820.211(2) at the time of this decision. Therefore the applicant satisfies cl.820.221.

37. 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

38. 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 and cl.820.221 of Schedule 2 to the Regulations

    Amanda Goodier
    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.