1504706 (Migration)

[2016] AATA 4450

1504706 (Migration) [2016] AATA 4450 (22 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Floare Hidis

CASE NUMBER:  1504706

DIBP REFERENCE(S):  CLF2013/135235

MEMBER:Kira Raif

DATE:22 September 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 September 2016 at 3:52pm

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 Romania, born in December 1954. She last entered Australia in May 2012 holding a Visitor visa, which expired in November 2012. The applicant applied for the Partner visa on 17 June 2013 on the basis of her relationship with the sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant met Item 3001 and found there were no compelling reasons to waive that requirement. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 August 2016 and 22 September 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 Romanian and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. The issues before the Tribunal are:

   a.Does the applicant meet the Schedule 3 criteria,

   b.If not, are there compelling reasons not to apply these criteria.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6.    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).

7.    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.

8.    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?

1. The applicant confirmed in her written statement to the Tribunal dated 1 April 2015 that her previous visa expired in November 2012 and that she made the application for the Partner visa in June 2013. In oral evidence to the Tribunal the applicant said that she approached a lawyer in November 2012 and trusted the lawyer to do the paperwork. That may be the case but approaching a lawyer does not equate to lodging a valid visa application.

2. The Tribunal finds that the applicant last held a substantive visa when her Visitor visa expired in November 2012. She was not the holder of a substantive visa at the time she made the application for the Partner visa in June 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 November 2012. 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 June 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]. 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 addressing the Schedule 3 criteria the applicant confirmed that her marriage was of less than two years’ duration and there was no child to the relationship. The applicant addressed the various aspects of the relationship in her submissions. In her evidence to the Tribunal the applicant claims her relationship with the sponsor is a long term one and has existed for four years. The applicant presented documentary evidence to the Tribunal concerning the various aspects of her relationship with the sponsor. She informed the Tribunal in oral evidence that her relationship is a close one and a genuine one. The same oral evidence was given to the Tribunal by the sponsor. The Tribunal is mindful that by now the marriage has existed for more than three years and the relationship may be termed a ‘long term’ one. However, in the Tribunal’s view, that is not sufficient. The Tribunal makes no findings on the nature of the applicant’s relationship with the sponsor because the Tribunal does not consider that the existence of a close and genuine relationship, including a long term one, constitutes a compelling reason for the waiver. In the Tribunal’s view, it is the basis on which this application is made but no more. The Tribunal is mindful that the earlier Departmental policy identified long term relationships as giving rise to compelling circumstances. In the Tribunal’s view, such policy is more restrictive than, and is not consistent with, the legislation. Essentially, the Tribunal does not consider that a genuine relationship, including a long term relationship, is sufficient to constitute a compelling reason for the waiver.

10. The applicant claims in her written submission that there are compelling reasons to prevent her from applying overseas. She claims she was unemployed in Romania and if she was to return to Romania, she would have to rely on her husband for financial support. The applicant claims that it would be unreasonable for her to expect her daughter to support her. However, in her declaration sworn on 6 June 2013 the applicant claims that the sponsor is the breadwinner in the marriage and prefers for her not to work but stay at home. The applicant confirmed in oral evidence to the Tribunal that she does not work in Australia. That suggests that whether the applicant goes to Romania or remains in Australia, she would be relying on the sponsor for financial support. The Tribunal is not satisfied that such reliance, or the need for such reliance, give rise to compelling reasons for the waiver.

11. The applicant’s evidence to the Tribunal is that if she has to leave Australia, the sponsor would have to look after himself in Australia and also support her in Romania. That may be the case but the applicant has not satisfied the Tribunal that he would be unable to do so, particularly as the applicant’s evidence to the Tribunal is that she is unemployed in Australia and is fully dependent on the sponsor. The applicant claims that her daughter in Romania has a limited salary and cannot afford to support her and said that her son can only provide symbolic support but nothing substantial because he has his own commitments. The applicant has not provided adequate evidence of such commitments and of the children’s assets, income and liabilities. The Tribunal is not satisfied that neither of the applicant’s children would be unable to at least contribute some financial support to the applicant, if such support was needed. In any case, the Tribunal is not convinced that such support would be required because the Tribunal is of the view that the sponsor would be able to continue to provide support to the applicant as he has been doing in Australia, irrespective of her country of residence.

12. The applicant states in her written evidence that if she remains in Australia, she will be able to support her husband by helping him with his self-employed business. It is unclear how the applicant helps her husband in his business, given her claims made in the declaration of 6 June 2013 that she has no involvement in the sponsor’s financial affairs and has no interest in these, as well as her oral evidence to the Tribunal that she is unemployed. The Tribunal is not satisfied that the applicant will be without financial support or that she will be unable to survive, if she is to leave Australia. The Tribunal is not satisfied such matters give rise to compelling circumstances.

13. The applicant and the sponsor informed the Tribunal in oral evidence that they are in a committed relationship, that they love and support each other and do not wish to be separated. They refer to their age and claims that in their age, separation would be very difficult. If the parties claim they provide emotional support to each other, the Tribunal is of the view that such support forms an integral part of any committed relationship and there is nothing compelling about it. It is common to any genuine relationship. The Tribunal is also of the view that support is not limited to circumstances where the parties reside together. There is no reason such support would have to be withdrawn if the applicant was to leave Australia. The Tribunal accepts that the partners do not wish to be separated, however, that is a common desire in any relationship. The applicant claims that they are of advanced age and it would serve no purpose to separate her from the sponsor. The applicant referred to the hardship she and the sponsor experienced in the past. The Tribunal finds such submissions unhelpful. As the Tribunal explained to the applicant in the hearing, the issue is not whether there is any purpose in separation. Either the applicant meets the requirements for the grant of the visa or she does not and any purpose in such requirements is not an issue for the Tribunal. The Tribunal is satisfied the parties do not wish to separate but the Tribunal does not consider there is anything compelling about such desire, even having regard to the parties’ age. The Tribunal is not convinced that separation is more compelling at any particular age or at an advanced age, as the parties claim. The applicant also suggested in oral evidence that the separation would cause them medical stress. There is no probative basis to support these assertions. There is no medical evidence before the Tribunal to indicate that separation would adversely affect the partners’ health and the Tribunal does not accept that evidence. Thus, while the Tribunal accepts that the parties do not wish to be separated, the Tribunal does not consider that the consequence of the separation, even having regard to the partners’ age and other circumstances, give rise to compelling reasons for the waiver.

14. In her written submission to the Tribunal the applicant outlined the circumstances which led to her not being a holder of a substantive visa and she referred to the Departmental policy. In her submission to the Tribunal the applicant refers to her lack of English and the sponsor’s mistaken belief that everything would be okay and their reliance on migration agent’s advice. In oral evidence to the Tribunal the applicant also explained that they approached a lawyer and paid a lawyer to take care of the case and they did not know that the application was not made until several months later. The Tribunal finds these claims unpersuasive. The applicant has the responsibility, as a holder of a visa, to ensure that she was familiar with the requirements relevant to her visa, including the visa expiry date. She had the opportunity to make the relevant inquiries and would have been able to rely on an interpreter, if not on her partner to make inquiries. It is not sufficient to state that she did not understand the law. In the Tribunal’s view, the applicant had an obligation to understand the law to ensure her compliance with it and lack of knowledge of the law does not constitute a compelling reason why such law should not apply.

15. In oral evidence to the Tribunal the applicant and the sponsor outlined their dealings with their migration gents. They stated that they approached a lawyer in November 2012 and paid a fee relied on the actions of the lawyer. The Tribunal acknowledges that evidence but in the Tribunal’s view, such matters do not establish any compelling reasons for the waiver. It is not in dispute that the application for the Partner visa was not made until several months after the applicant’s visa expired. As noted above, the Tribunal is of the view that the applicant had every opportunity to monitor the progress of her application. She could have asked her lawyer about the progress of the application or whether it has been lodged, or she could have asked for a copy of the acknowledgement letter or a copy of the receipt from the Department or about the grant of a bridging visa. The applicant provided credit card authorisation on the application form and she could have monitored whether payment had been made. She could have certainly contacted Immigration to check the progress of her application. It is not apparent that the applicant did anything at all to monitor the progress of her application. The Tribunal is not satisfied that the applicant had taken adequate steps to monitor the progress of her application.

16. The Tribunal also notes that the form is dated 20 May 2013 and was signed by the applicant. The sponsorship form which she presented with the application was signed in June 2013. It is impossible, in the Tribunal’s view, that the applicant was unaware that her application was not made before the expiry of her substantive visa, given that the relevant application forms had not been signed until six months later. The Tribunal does not accept that the applicant was unaware that her visa application was not made and that the applicant had no control over that process. Further, the question before the Tribunal is not the reason the application was made late.  By June 2013 when the application was validly made, the issues with the lawyer, to which the partners refer, had been resolved. The Tribunal does not consider that the circumstances leading to the lodgement of her application give rise to compelling reasons for the waiver.

17. The applicant claims that her circumstances had changed around the time she came to Australia and she has nowhere to live and nothing to return to. In her written submission to the Tribunal the applicant suggested that she no longer has anywhere to live in Romania. The applicant has not repeated this claim in her oral evidence to the Tribunal. She also told the Tribunal that she has a daughter in Romania with whom she has a close relationship and with whom she speaks daily. Although the applicant claims her daughter has limited income, no evidence of the daughter’s circumstances has been presented and the applicant has not satisfied the Tribunal that the daughter would be unable to provide at least some support to the applicant during the processing of any offshore application she may wish to make in the future. As noted above, the Tribunal has also formed the view that if this relationship is genuine, the sponsor may be able to provide financial and other support to the applicant during the period of her stay overseas. The Tribunal is not satisfied that the applicant will be unable to return to Romania or that she will have nowhere to live and will be unable to support herself. The Tribunal is not satisfied such matters give rise to compelling circumstances.

18. In her written submission the applicant refers to the sponsor’s chronic illnesses which may recur with time. The applicant has not presented documentary evidence, such as medical reports, to support her claims and has not pursued this matter in oral evidence to the Tribunal. In oral evidence to the Tribunal the applicant said that the sponsor does not have any serious health concerns and has not been to a hospital and while he may have some age-related issues, these are not serious. In such circumstances, whatever health concerns the sponsor may have, if they exist, the Tribunal is not satisfied that these give rise to compelling reasons for the waiver.

19. The applicant informed the Tribunal that she has a son in Australia and grandchildren. The Tribunal acknowledges that the applicant’s son and children reside in Australia. However, that is not a compelling reason in the Tribunal’s view, for the waiver. The applicant is seeking a Partner visa on the basis of her relationship with the sponsor, not because of the presence of other relatives in Australia. According to the application form, the applicant’s daughter is in Romania and the Tribunal does not consider that the presence of family members in any particular country is sufficient to give rise to compelling reasons to enable the applicant to remain in that country.

20. The applicant informed the Tribunal that she likes life in Australia and respects the Australian rules and culture. She considers the living standards in Australia are higher than in Romania and that there is respect for the elderly. The Tribunal is not convinced that the applicant’s preference for life in Australia, rather than life in Romania, constitutes a compelling reason for the waiver. Those applying for Australian visas generally do so because they prefer to remain in Australia. They may respect the Australian laws and way of life but that is common to many, if not all, applicants who apply for Australian visas. The Tribunal is not satisfied there is anything compelling about such matters.

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal is not satisfied that the matters put forward by the applicant, whether considered singularly or cumulatively, give rise to compelling reasons for the waiver. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

    Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member