1504247 (Migration)

[2016] AATA 3590

1504247 (Migration) [2016] AATA 3590 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms CHU HUYNH

CASE NUMBER:  1504247

DIBP REFERENCE(S):  CLF2013/210336

MEMBER:Kira Raif

DATE:22 March 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 22 March 2016 at 4:03pm

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 20 March 2015 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 Vietnam, born in July 1960. She travelled to Australia in 1992 holding a Visitor visa which expired in December 1992. The applicant applied for the Partner visa on 27 August 2013 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 the delegate was not satisfied the applicant met the requirements of Item 3001. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 22 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese 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).

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

1. When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record which sets out his immigration history. As noted above, the applicant travelled to Australia in September 1992 holding a Tourist visa. That visa expired in December 1992 and the applicant became an unlawful non-citizen.

2. The Tribunal finds, having regard to that information, that the last day the applicant held a substantive visa was in December 1992 when her Visitor visa ceased. The Tribunal finds that the applicant was not a holder of a substantive visa at the time she made the application for the Partner visa in 2013. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).

3. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii).

4. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that she entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that 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.

5. The Tribunal has found that the applicant ceased to hold a substantive visa when her Visitor visa expired in December 1992. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in 2013, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

6. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

   Compelling reasons

7. 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.

8. 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]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

9. In her written submission to the delegate concerning the waiver the applicant stated that she was in a long standing relationship with the sponsor as they had been living together since 2009 and that their relationship has been recognised by others. The applicant provided with her application a number of documents concerning the relationship and additional evidence has been presented to the Tribunal.

10. In his written submission to the Tribunal dated 17 March 2016, the applicant’s representative notes that the delegate accepted there is a genuine relationship between the applicant and the sponsor. The representative refers to the delegate’s acceptance that supporting statements demonstrating a long-term genuine relationship had been provided. However, such acceptance does not equate to a finding that the relationship is a genuine one or a long term one. It is merely the acknowledgement that such claims have been made. The delegate, and the Tribunal on review, have the responsibility to assess the evidence and it is up to the decision-maker to determine what weight to give to such evidence. The mere fact that statements have been provide to evidence a long term genuine relationship does not necessarily establish that such a relationship exists.

11. Ultimately, the Tribunal makes no findings on the nature of the applicant’s relationship with the sponsor because the Tribunal is of the view that the existence of a genuine relationship, even a long term one, is not a compelling reason. In the Tribunal’s view, it is the basis on which the application for the Partner visa is made but no more. The Tribunal is mindful that the earlier Departmental policy, on which the applicant relies in her written submission to the Tribunal of 17 March 2016, identified long-standing relationships as a compelling reason for the waiver. In the Tribunal’s view, such policy is more restrictive than, and not consistent with, the legislation. That is, the Tribunal does not consider the existence of a long standing genuine spousal relationship constitutes a compelling reason for the waiver. In reaching this conclusion, the Tribunal acknowledges the representative’s reference to the judgment in Waensila and the Court’s reference to the Explanatory Memorandum which refers to long-term relationships constituting a compelling reason for the waiver. While the Tribunal accepts that this judgment no longer limits the consideration of circumstances to the time of the application, the Tribunal does not consider that judgment to go further and direct that the existence of a long term relationship would constitute a compelling reason for the waiver. Any direction that a long term relationship is a compelling reason for the waiver would amount to a fetter on the Tribunal’s discretion. While no doubt in some circumstances, factors relevant to the relationship or the length of the relationship may constitute compelling reasons, the Tribunal does not accept that the mere existence of a long term relationship, on its own and without more, is sufficient to establish compelling reasons for the waiver.

12. In her submission to the delegate the applicant explained the reasons she decided to remain in Australia after the expiry of her visa in 1992. In the Tribunal’s view, none of these reasons justify unlawful stay for such a long period. In any case, the issue before the Tribunal is not why the applicant was not the holder of a substantive visa at the time she made the application. The issue is whether, when she did make the application or at a time subsequent to it, there were any compelling reasons for the waiver. The Tribunal is not satisfied that the reasons the applicant put forward for her decision to remain in Australia unlawfully constitute compelling reasons. In particular, the applicant claims he was depressed about her boyfriend’s betrayal and decided to remain in Australia. She presented no medical evidence of her depression and it is unclear to the Tribunal why the applicant preferred to be depressed in Australia rather than in Vietnam. The applicant claims she had no knowledge of the immigration laws. The Tribunal does not accept that claim. In the Tribunal’s view, if the applicant had any desire to comply with visa requirements, she could have easily made inquiries. She certainly had ample time and opportunity to do that since 1992 when she became an unlawful non-citizen. The Tribunal does not accept that the applicant chose to remain in Australia unlawfully due to lack of knowledge of the law. The applicant also claims that her friends suggested the Australian government may offer an amnesty. In the Tribunal’s view, that is not a very good reason to live in the country unlawfully for a lengthy period. The Tribunal considers that none of these matters give rise to compelling reasons.

13. The applicant claims that she and the sponsor would experience hardship if she was required to leave Australia and apply overseas. In her written submission to the Tribunal of 17 March 2016 the applicant fails to identify any such hardship. The Tribunal finds the reference to hardship without any identification of such hardship to be unhelpful.

14. The applicant informed the Tribunal in oral evidence that she started living with her partner in 2009 and her fear was that if she made the application earlier, she would be sent back to Vietnam and be separated from her partner. She said that by 2013 her friends convinced her to make an application as she was unlawful. The sponsor’s evidence to the Tribunal was similar. He stated that he and the applicant met in 2007 and started living together in 2009.  On advice of friends, they married in June 2013 and then made the application in August 2013. The Tribunal finds that evidence unconvincing. If the applicant was in a genuine relationship with her partner, including a de facto relationship, from 2009, there was no more reason for her to be sent to Vietnam in 2009 than in 2013 when she made the application.

15. Significantly, as noted above, the issue before the Tribunal is not the reasons the applicant delayed her application for the Partner visa or the reason she remained in Australia as an unlawful non-citizen. The issue is whether compelling reasons existed at the time the application was made or at a time subsequent to it.

16. The applicant claims that she is concerned about her application being refused and being separated from her partner. The sponsor noted that they have been together for nearly seven years and given their age, they do not wish to be separated. The sponsor informed the Tribunal that they are used to being together and if the applicant was to leave Australia, he would be lonely and would be separated for maybe 15 months that it might take the application to be processed offshore. The Tribunal is prepared to accept that separation is a real concern for the couple, however, that is no different to what any couple would feel. There can be no guarantee of visa grant whether the application is made onshore or offshore and there is always the possibility that the couple may be required to separate. If the relationship is genuine, such separation will only be a temporary one. While the Tribunal accepts that the couple does not wish to separate for any period, in the Tribunal’s view, there is nothing compelling about that. 

17. The applicant also spoke about having a close and loving relationship with the sponsor but in the Tribunal’s view, that is also a normal indicia of a committed relationship and not a compelling circumstance.

18. The sponsor noted that if the applicant was required to make the application offshore, it would cost a lot of money to make the application and also for him to visit her in Vietnam. The Tribunal accepts that an offshore application would involve certain costs. There is little evidence before the Tribunal that the parties would have financial difficulties meeting the costs associated with another visa application or the sponsor’s overseas travel. The Tribunal is not satisfied on the evidence before it that an offshore application would cause financial hardship. Further, any cost associated with an offshore application is a cost that applies to every applicant seeking an Australian visa. In the absence of any further factors, the Tribunal is not satisfied that in this case, the burden of such costs constitutes a compelling reason for the waiver.

19. 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).

20. The Tribunal has found that the applicant does not meet Item 3001 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

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

    DECISION

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

    Kira Raif
    Senior Member