1516438 (Migration)

[2016] AATA 3904

1516438 (Migration) [2016] AATA 3904 (17 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hung Son Dao

CASE NUMBER:  1516438

DIBP REFERENCE(S):  BCC2015/802428

MEMBER:Amanda Goodier

DATE:17 May 2016

PLACE OF DECISION:  Perth

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

Statement made on 17 May 2016 at 1:18pm

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 17 November 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 11 March 2015 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 visa applicant did not satisfy cl.820.211(2)(d) because the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria.  A copy of the delegate’s decision was attached to the application for review.

4. The applicant and sponsor appeared before the Tribunal on 5 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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).

8. 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. These criteria are set out in the attachment to this decision.

   Criterion 3001

9. 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 is the last day the applicant held a substantive visa. 

10. The applicant last held a substantive visa on 10 July 2013 and applied for this visa on 11 March 2015. 

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

    Compelling reasons

12. 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.

13. 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.

14. As discussed with the applicant at hearing, the Tribunal does not consider a genuine relationship in itself constitutes a compelling reason for waiving the Schedule 3 criteria.

15. The applicant submitted that he applied for the partner visa as his student visa expired.  He did not study hard enough for his degree so applied for another visa to study hospitality.  This application was refused but he did not receive the notification until he returned to Vietnam to visit his family.  He states the lady told him as he came through that he had a few days left on his visa.  The applicant claims he did not extend his visa as he forgot it expired and was busy at the time.  He was already with his partner at the time.  He did not return to Vietnam as he was concerned his wife would break up with him if he did so.  He cannot return to Vietnam as it would be stressful for his wife and she could not afford to pay living expenses and the bank loan.  He claims he has purchased a block of land with his wife and is planning to build a unit and they plan to have children in the future.

16. According to the delegate’s decision, the applicant arrived in Australia on 17 May 2010 as the holder of a subclass 571 student visa which ceased on 29 June 2012.  He was granted a further subclass 570 student visa that ceased on 10 July 2013.  He lodged a further application for a student visa which was refused on 7 June 2013 and his bridging visa associated with that application ceased on 5 July 2013.  He remained unlawfully in Australia until 12 March 2015 when he lodged this application and was granted an associated bridging visa.

17. The delegate refers to the applicant not complying with the conditions of his previous visa as he did not satisfactorily attend classes and his non-compliance formed the basis of the refusal of his subsequent student visa application.   The Tribunal put this to the applicant who responded that he did not know his situation and he was only aware of his situation when he was returning to Australia.  He had poor health and lodged certificates so missed lots of classes.  He does not know why he had a poor attendance as he submitted certificates for his absences.

18. The applicant stated no-one told him about his visa status, he only knew when he returned from Vietnam and immigration told him his visa was only valid for a few more days.  The Tribunal put to the applicant that it is his responsibility to be fully informed as to his visa status and to also keep the department informed of his contact details. The applicant indicated that his agent knew and did not tell him or pass things to him.  The Tribunal asked what he did to rectify his status in that time and was told he spoke to an agent.  When asked whether he spoke to the department at any time he indicated he spoke to his agent.  The Tribunal indicated that he was aware when he re-entered Australia that his visa was about to expire. 

19. The applicant stated that he was very upset and depressed at the time as he had just met his wife and was scared that if he returned to Vietnam his relationship would fade.  They are very much in love.  He would also like to finish his study as his family does not know about the refusal from the department of his subsequent student visa.  He did not tell his family as his grandmother was sick.  He has now told his family.  He did not want to tell his family at the time as he was scared of the effect it would have on his grandmother’s health.  It was submitted by the representation that his fear of causing his grandmother’s health was a reason for him not telling his family anything at the time or taking any action in relation to his immigration status.  

20. The Tribunal asked the sponsor if she was aware of his unlawful status and was told that she did.  The applicant indicated he told her at a later stage.  The Tribunal is satisfied on the evidence provided the applicant and sponsor were aware that the applicant’s visa had expired, his application for a subsequent student visa had been refused and that he was unlawful for nearly two years prior to lodging this application.

21. When asked as they claim to have been in a genuine relationship, with the Tribunal noting that the sponsor declared the applicant as her partner to the taxation department from 30 November 2013, why they did not apply for a partner visa at an earlier stage, the Tribunal was told that the sponsor was not divorced from her husband at the time and they had not been living together for long enough to lodge the application for a partner visa.  They indicated they did seek migration advice and was told they had not been together long enough.  When the divorce was finalised, they married and lodged this application.  

22. The Tribunal does not accept the applicant’s claim to have been unaware his visa was expiring as a compelling reason for waiving the schedule 3 criteria.  The Tribunal does not consider the applicant’s circumstances as to the progress of his previous visa application and having a visa refused compelling reasons for waiving the Schedule 3 criteria.

23. The Tribunal notes the applicant’s reasons for not telling his family he no longer held a valid visa or returning to Vietnam as he no longer held a visa.    The Tribunal considers the applicant’s concern for his grandmother’s health compassionate but does not consider it a compelling reason for waiving the Schedule 3 criteria. 

24. The Tribunal has considered the submission by the applicant that as they are in a long term relationship, this is a compelling reason for waiving the Schedule 3 requirement.   What is a reasonable period for the purpose of defining ‘long-standing’ will depend on the evidence, the circumstances of each case and the nature of the hardship/detriment that would be suffered if the Schedule 3 criteria were not waived.  Whilst the length of the relationship should be ‘long-standing’, this period of time should not be the determinative factor but ought to draw its significance from a number of other factors relevant to the case.  The Tribunal does not consider a relationship of around 30 months at the time of this decision to be a reason that is in itself sufficiently powerful to lead the Tribunal to make a positive finding in favour of waiving the required Criteria.

25. The Tribunal has considered the other factors relevant to the case as raised by the applicant and sponsor.

26. The applicant claims his wife will find it stressful financially if he has to return to Vietnam to apply for this visa.  While it was initially claimed they had purchased a block of land together, at hearing the Tribunal was told that their offer was not accepted and they did not purchase the block of land.  However, they purchased a car in September 2014 on which they still owe money and he supports the sponsor financially to make the repayments.  The sponsor told the Tribunal that she now only works part-time and cannot meet their expenses on her own.  The applicant works and his income helps with the car repayments as well as other household expenses.  When they got the car loan she was working full-time and they obtained the loan on the basis of her income. 

27. The Tribunal asked the sponsor what it would mean if the visa wasn’t granted.  She responded she did not think she could live here without him.  She only works four days a week and pays rent, car loan and the other expenses are very high here in Australia. It will be a hard time for her without her husband.  She was aware he did not hold a visa but wanted him to stay as she was in love with him.  They both want to stay to live in Australia and if he has to return to Vietnam she will have to return as well

28. The Tribunal asked why she felt compelled to leave Australia if the applicant was required to travel overseas to apply for the visa.  The sponsor indicated she does not want to stay here alone.  The sponsor indicated she had just returned from Vietnam to attend her brother’s wedding and usually returns very two years.  She has been in Australia since 2007. 

29. The applicant told the Tribunal that he may have difficulty finding work and his wife may find it difficult financially supporting him if he had to return to Vietnam.  He wants to stay in Australia to build a future with his wife.  They love each other very much and do not want to be separated.  When asked if he was able to return to live with his family in Vietnam, the applicant gave inconsistent responses, indicating he may have difficulty as well as indicating that he could return to stay with them.  He did indicate that his family have spent time and money for him to build a better future in Australia than he would have in Vietnam and that is why he cannot return to them. 

30. The Tribunal acknowledges that it may be difficult financially for the sponsor should the applicant be required to depart Australia but notes that it was not until about March 2015, 18 months into their relationship that the applicant obtained permission to work and during that time the sponsor earned the majority of the household income.  The Tribunal acknowledges that she currently works part-time.  The Tribunal also acknowledges the applicant’s claims that he did not work during the period he was unlawful, only assisting a friend who did not pay him a wage but gave him cash to assist him financially during this period.  The Tribunal is not satisfied on the evidence provided that the sponsor’s financially difficulty should the applicant be unable to remain in Australia constitutes a compelling reason to not apply the Schedule 3 requirement.

31. The Tribunal acknowledges that the sponsor would prefer to have her husband living with her but is not satisfied on the evidence before it that she is so reliant on him and is unable to survive without the support of her husband and is not satisfied this is a compelling reason for waiving the Schedule 3 criteria.  The Tribunal acknowledges that the applicant and sponsor would both prefer to remain living together in Australia but finds that this is not a compelling reason for waiving the Schedule 3 criteria. 

32. After considering the available evidence provided, the Tribunal is not satisfied that the sponsor feels compelled to travel to Vietnam should the applicant have to return.  Should the sponsor decide to travel to Vietnam to stay with the applicant for a period, the Tribunal is not satisfied that she would be unable to cope with the culture and lifestyle, particularly as she lived in Vietnam until she arrived in Australia in 2007 frequently returns to visit family. 

33. The Tribunal is not satisfied that there is anything in the applicant and sponsor’s particular circumstances to set them apart from any other couple making an off-shore partner visa application. The Tribunal further considers the parties missing each other or being miserable at being separated is a situation common to all persons in a genuine spouse relationship while temporarily apart if one spouse travels overseas to apply for a new visa.  Therefore while missing each other and experiencing emotional distress at being separated may amount to compassionate circumstances, it is not a compelling reason to waive the Schedule 3 criteria.

34. The Tribunal is not satisfied that making plans for the future, including having children and buying a house sets the applicant and sponsor apart from any other couple in a spousal relationship.  The Tribunal is not satisfied these are compelling reasons for waiving the Schedule 3 criteria.

35. The Tribunal notes the applicant’s claims that his family have supported him so that he will build himself a better future in Australia and this is a reason why he cannot return to Vietnam.  The Tribunal acknowledges the applicant’s family may be disappointed in that despite providing the financial support to enable him to do so, he has not met their expectations of completing his studies and building a better future for himself.  However the Tribunal does not accept that this is a compelling reason for waiving the Schedule 3 criteria.

36. The Tribunal accepts that if the applicant returns to Vietnam he will have to re-establish himself there and that it may be difficult.  The Tribunal notes that the applicant has been employed in Australia and acknowledges it may be difficult at first for the applicant to find employment if he returns to Vietnam but is not satisfied that the applicant will be unable to find some type of employment.  He has resided in Australia for some time, speaks some English, has adapted to a new and different culture and learned skills in adapting such as finding employment and accommodation.  The Tribunal acknowledges that the applicant will face re-establishing himself in Vietnam after an absence and that he may experience some difficulty but is not satisfied that this gives rise to compelling reasons for not applying the Schedule 3 criteria.

37. The Tribunal acknowledges that the applicant has plans for his future and that his opportunities in Australia are far better than in Vietnam but is not satisfied on the evidence that having to return to Vietnam to lodge another application would severely disrupt any plans or commitments he has and is not satisfied that these are compelling reasons for waiving the Schedule 3 Criteria. The Tribunal also acknowledges that the applicant may face re-establishing himself on his return to Australia and that re-establishing his employment and career as well as financially may be difficult on his return but is not satisfied that this gives rise to compelling reasons for not applying the Schedule 3 criteria.  

38. Having considered the totality of the reasons provided, the Tribunal is not satisfied that these are “such that they evoke interest or attention in a powerfully irresistible way” or that the reasons provided are “so powerful that they lead the [Tribunal] to make a finding that the [provision] should be waived”. The Tribunal does not consider these reasons, whether considered singularly or cumulatively, to be compelling.

39. The Tribunal is not satisfied based on the evidence provided that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

40. The Tribunal has considered whether the applicant meets any of the alternative criteria in cl.820.211(3) – (9).  No claims have been made by the applicant against these alternative criteria and the Tribunal is not satisfied that the applicant meets any of these criteria.  Accordingly he does not meet clause 820.211.

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

    DECISION

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

    Amanda Goodier
    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.