1509063 (Migration)

[2016] AATA 3265

1509063 (Migration) [2016] AATA 3265 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Javed Asghar

CASE NUMBER:  1509063

DIBP REFERENCE(S):  CLF2012/254306 & BCC2015/2181980

MEMBER:Di Hubble

DATE OF DECISION:  5 February 2016

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 05 February 2016 at 3:24pm

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 25 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 24 December 2012 on the basis of his relationship with his 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 he did not meet Schedule 3 criterion 3001 in that he 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, who was represented by Accredited Immigration & Administrative Law Specialist and Registered Migration Agent, Ms Carina Ford, sought review of the delegate’s decision on 7 July 2015. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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 did not have a substantive visa at the time of application. As he 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

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), as set out in the attachment to this decision.

9. The relevant day in this instance is the day the applicant last held a substantive visa, which was 15 March 2012 when his Subclass 572 visa ceased.  The current visa application was lodged on 24 December 2012.

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

    Compelling reasons

11. 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.

12. 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].

13. The Explanatory Statement to Statutory Rules 1996, No. 75 which accompanied the introduction of the 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:

    ·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.

14. Previous versions of PAM3 mirrored the examples provided in the Explanatory Statement, as well as suggesting a range of other examples of circumstances that would amount to compelling circumstances. However, those examples were removed on 1 July 2014 and the policy guidance now focuses on the circumstances that resulted in the applicant becoming unlawful.  The expectation of the revised policy is that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a partner visa.  Departmental policy currently states:

    [T]he intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:

    ·fail to comply with their visa conditions or

    ·deliberately manipulate their circumstances to give rise to compelling reasons or

    ·can leave Australia and apply for a Partner visa outside Australia.

    An example of where the circumstances may not be compelling to waive the Schedule 3 requirements may be where an applicant has remained unlawful for a number of years, made little or no effort to regularise their status and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for the visa.

    With the intent of the waiver provisions in mind, it is generally reasonable to expect that compelling reasons to exercise the waiver provision exist where an applicant’s circumstances happened beyond their control. That is, circumstances beyond the applicant’s control had led them to become unlawful and/or prevented them from regularising their status through means other than the Partner visa application for which they seek the waiver.[1]

    [1] PAM3 - Migration Regulations - Sch2 Visa 820 - Partner - The UK-820 primary applicant - Eligibility at [8.7] (compilation 1 1/1/2016).

15. In making that assessment, PAM3 identifies the following range of matters decision-makers should have regard to:

    ·any history of non-compliance by the applicant;

    ·the length of time the applicant has been unlawful;

    ·the reasons why the applicant became unlawful,

    ·the reasons they applicant did not seek to regularise their status sooner;

    ·what steps, if any, the applicant has taken to regularise their status (other than applying for a partner visa).[2]

    [2] PAM3 - Migration Regulations - Sch2 Visa 820 - Partner - The UK-820 primary applicant – Eligibility at [8.7] (compilation 1/1/2016).

16. In emphasising the circumstances that resulted in the applicant becoming unlawful, and considering whether those circumstances are beyond the applicant’s control, the Tribunal considers that the current focus of PAM3 appears to narrow the range of considerations potentially contemplated by the waiver in cl.820.211(2)(d)(ii) and indicated in the Explanatory Statement that accompanied its introduction.  While the circumstances highlighted in PAM3 will often be relevant to the assessment of the waiver, the Tribunal considers that it should approach the current guidelines with some caution, and ensure that consideration of an applicant’s ‘compelling reasons’ is not limited to the circumstances surrounding their unlawful status.

17. That said, the Tribunal considers that the applicant’s history of non-compliance occurred over a comparatively short period of time, when compared to some of the other cases that the Tribunal has determined.  The applicant held a succession of Student visas from the time of first arriving in Australia on 11 January 2008 until his last Student visa ceased on 15 March 2012.  On 29 February 2012, prior to the cessation of that visa, the applicant applied for a further Student visa.  That application was refused on 18 April 2012 and the applicant subsequently applied for review on 23 April 2012.  That review application remained extant until 30 September 2013, when it was withdrawn some 10 months after the applicant lodged this visa application.  Therefore the applicant either held a substantive visa, or had a review application pending in respect of the refusal of a substantive visa application, at all times until applying for this visa on 24 December 2012.

18. According to the visa application, the applicant and the sponsor committed to a shared life together to the exclusion of all others on 17 June 2012 and they subsequently married on 17 December 2012.  Therefore, they were not in a long-standing spouse (partner) relationship of 2 years or more at the time of application on 24 December 2012.

19. However, this matter is unusual in that the applicant and the sponsor began living together in August 2010, albeit initially as housemates.  At that time, the applicant was married to his first wife, Saira, who he subsequently divorced in October 2012.  The marriage was arranged by the applicant’s parents in June 2010 and by all accounts was not a happy one with Saira returning to Pakistan every 3 months.  The applicant claimed in his December 2012 statement that during Saira’s absences he grew close to the sponsor, who he already had a very strong friendship with, and their relationship gradually transformed into a loving one.  

20. It is apparent to the Tribunal that in light of the applicant and the sponsor’s pre-existing friendship, and the fact that they lived together as housemates from August 2010, that their situation is vastly different to other couples whose relationship is of fairly short duration at the time of application.  The Tribunal accepts, given the unusual way in which the applicant and the sponsor’s relationship developed, that they have a closer bond and are more emotionally interdependent on each other than would normally be the case for a relationship of short duration at the time of application.  Accordingly, the Tribunal considers that this couple would experience a far greater adverse emotional impact than would ordinarily be the case if the applicant was required to leave Australia, for what could be a lengthy period, in order to apply for the visa offshore.

21. Alternatively, if the sponsor felt compelled to accompany the applicant offshore to Pakistan, the Tribunal accepts that it would be extremely difficult for her to cope given that she comes from an Indonesian background, is visibly of Chinese descent and does not speak the local language.  The Tribunal considers that the sponsor would easily be identified as a foreigner in Pakistan, which could potentially imperil her given the significant security concerns prevailing there for the last few years.  The Tribunal also accepts the representative’s submission that the applicant’s ex-wife’s family blame him for the divorce, which brought shame to their family, and they are hostile towards him.  The Tribunal considers that it would, in such circumstances, be extremely problematic for the applicant to return to Pakistan with the sponsor.

22. Finally, it was claimed that at the time of application the applicant was the sole income earner for the couple as the sponsor had not been able to find full-time employment for several years.  The applicant submitted a bank statement for the couple’s joint bank account for the period 19 November 2012 to 18 January 2013, which establishes to the Tribunal’s satisfaction that at the time of application the applicant, who was employed by Masood Services as a taxi driver, was, in fact, the sole regular income earner and the sponsor was financially dependent upon him for her basic living expenses.

23. Considering the various factors set out above, and after considering the relevant circumstances at the time of application as a whole, 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).

24. 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

25. 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.