1508850 (Migration)

[2015] AATA 3473

1508850 (Migration) [2015] AATA 3473 (6 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hanna Teklay Adhanom

CASE NUMBER:  1508850

DIBP REFERENCE(S):  BCC2014/2648743

MEMBER:Di Hubble

DATE:6 October 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)(ii) of Schedule 2 to the Regulations.

Statement made on 06 October 2015 at 7:00pm

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 11 June 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 applied for the visa on 9 October 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 applicant did not satisfy cl.820.211(2)(d)(ii) because she did not meet Schedule 3 criterion 3001 in that she ceased to hold a substantive visa more than 28 days prior to lodging the visa application.  The delegate further found there were no compelling reasons for not applying the Schedule 3 criteria.

4. The applicant sought review of the delegate’s decision on 1 July 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. 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).

6. It is not in dispute that the applicant did not have a substantive visa at the time of application. As she did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue before the Tribunal 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

7. 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.

8. The relevant day in this instance is the day the applicant last held a substantive visa, which was 12 June 2014 when her Subclass 601 visa ceased.  The current visa application was lodged on 9 October 2014.

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

   Compelling reasons

10. 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.

11. 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].

12. The Explanatory Statement to Statutory Rules 1996, No. 75 which accompanied the introduction of these provisions, stated (in relation to cl.820.211) that the inclusion of a ‘waiver’ provision was in recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply for a spousal (partner) visa, but would otherwise be forced to leave Australia and apply offshore. The waiver was introduced to provide flexibility for the Minister where compelling circumstances arise, but only where there are reasons of a ‘strongly compassionate’ nature. The Statement referred to the following circumstances as examples of where a waiver may be justified by the hardship that would result if the Schedule 3 criteria were not waived:

    ·there are Australian-citizen children from the relationship; or

    ·the applicant and his or her nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer.

13. The applicant is sponsored in connection with the visa application by Mr Antony Jeevaraj Gnanaseelan, the sponsoring partner (the sponsor), who is an Australian citizen.

14. In the applicant’s 6 January 2015 submission to the delegate regarding compelling reasons for not applying the Schedule 3 criteria, it was claimed, inter alia, that the applicant and the sponsor were expecting their first child together and the applicant was currently 18 weeks pregnant.

15. Although the delegate accepted that the applicant was pregnant, it was considered that there was no evidence this was the case at the time of application.  Therefore on the then current evidence, the delegate did not find the applicant’s pregnancy a compelling reason to waive the Schedule 3 criteria.

16. On 1 October 2015 the applicant submitted to the Tribunal a certified copy of the birth certificate for Reuben Gnanaseelan, who was born on 8 June 2015 at Dandenong Hospital.  The birth certificate names the applicant and the sponsor as the mother and the father of the baby.  The Tribunal accordingly finds that an Australian citizen child has been born as a result of the applicant’s relationship with her sponsor.

17. The Tribunal notes that the child was born 4 days after the applicant’s estimated date of delivery, which was 4 June 2015, according to the applicant’s pregnancy record with Monash Health (Department file, folio 69).  Accordingly, the Tribunal is satisfied, and further finds, that the applicant was several weeks pregnant at the time of application on 9 October 2014.

18. On the basis of this evidence, the Tribunal is satisfied that there are compelling reasons that existed at the time of application for not applying the Schedule 3 criteria. 

19. Accordingly, the applicant meets cl.820.211(2)(d)(ii). 

20. As the delegate did not undertake a formal assessment of the relationship and made no findings as to whether the parties are in a genuine spousal relationship, the Tribunal has refrained from considering this issue.

21. Given the finding above, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 820 visa.

    DECISION

22. 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)(ii) of Schedule 2 to the Regulations.

    Di Hubble
    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.