1600681 (Migration)

[2016] AATA 4795

1600681 (Migration) [2016] AATA 4795 (29 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yehia Sadik Ahmed Abdelrazek

CASE NUMBER:  1600681

DIBP REFERENCE(S):  CLF2013/259459

MEMBER:Kira Raif

DATE:29 November 2016

PLACE OF DECISION:  Sydney

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 29 November 2016 at 12:24pm

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 18 January 2016 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 Egypt, born in March 1985.  He applied for the visa on 22 October 2013 on the basis of his relationship with his 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 the requirements of Item 3001. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4.    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).

5.    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.

6.    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. Information on the Department’s file indicates that the applicant travelled to Australia in April 2008 holding a Student visa. He made an application for another Student visa which was refused. In October 2011 the applicant made an application for another visa in Australia, which was also refused by the delegate and affirmed by the Tribunal. The applicant sought judicial review in relation to that decision, which he subsequently withdrew and he made two applications for ministerial intervention.

2. The Tribunal finds, having regard to that information, that the last day the applicant held a substantive visa was 29 November 2010 when his Student visa expired. The Tribunal finds that the applicant was not a holder of a substantive visa at the time he made the application for the Partner visa in October 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 he 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 his Student visa ceased in November 2010. 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 October 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. The applicant provided to the delegate and the Tribunal a number of reasons why the Schedule 3 criteria should be waived. He also provided a copy of a birth certificate in relation to the child that he had with the sponsor. In the Tribunal’s view, the birth of a child of a relationship, who is an Australian citizen, constitutes a compelling reason for the waiver. 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).

   Conclusion

10. 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

11. 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

    Kira Raif
    Senior Member