1513318 (Migration) - [2016] AATA 3729

1513318 (Migration) [2016] AATA 3729 (8 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhpreet Singh
CASE NUMBER:  1513318
DIBP REFERENCE(S):  CLF2012/243802
MEMBER:Di Hubble
DATE:8 April 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 08 April 2016 at 10:29am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 11 September 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 6 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 delegate refused 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.
The applicant, who was represented by a registered migration agent, sought review of the delegate’s decision on 29 September 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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).
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
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.
The relevant day in this instance is the day the applicant last held a substantive visa, which was 15 June 2011 when his Subclass 572 visa ceased. The current visa application was lodged on 6 December 2012.
As the visa application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1513318 (Migration)

Details

AGLC: 1513318 (Migration) [2016] AATA 3729
Case: [2016] AATA 3729
Decision Date: 8 April 2016

CaseChat Overview and Summary

The applicant, represented by a registered migration agent, sought review of the delegate’s decision regarding the application for a Partner (Temporary) (Class UK) visa. The matter was heard and determined by the Migration Review Tribunal. The central issue for the Tribunal was to determine whether the applicant met the criteria set out in Schedule 3 of the Migration Regulations 1994 or if there were compelling reasons to waive those criteria. Specifically, the Tribunal examined whether the applicant's visa application was lodged within 28 days of the relevant day, as stipulated by criterion 3001, and if not, whether there were compelling reasons to waive this requirement.

The Tribunal concluded that the applicant did not satisfy criterion 3001, as the visa application was not lodged within the required 28 days of the relevant day. However, the Tribunal was required to consider if there were compelling reasons to waive the Schedule 3 criteria. The Tribunal found that the compelling reasons must be sufficiently convincing and relevant to the purpose of the visa waiver, which is to permit the person to apply for a spouse visa in Australia. The Tribunal noted that the waiver provision was introduced to provide flexibility in strongly compassionate circumstances, such as the presence of Australian-citizen children from the relationship or a long-standing spouse relationship.

Ultimately, the Tribunal decided that the application should be remitted to the Department to consider the remaining criteria for a Subclass 820 visa, with the direction that the applicant meets the criteria under clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations.

The Tribunal remitted the application for a Partner (Temporary) (Class UK) visa, directing that the applicant meets the criteria for a Subclass 820 (Partner (Temporary)) visa as outlined in clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant, who was represented by a registered migration agent, sought review of the delegate’s decision on 29 September 2015. CONSIDERATION OF CLAIMS AND EVIDENCEDoes the applicant meet Schedule 3 criteria, or should those criteria be waived? 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). 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 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. The relevant day in this instance is the day the applicant last held a substantive visa, which was 15 June 2011 when his Subclass 572 visa ceased. The current visa application was lodged on 6 December 2012. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.Compelling reasons 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. 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 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.

Decision

Reasons for decision

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 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 HubbleMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.

Ratio Decidendi

Legal Principle Established

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 HubbleMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.