1605671 (Migration)

[2016] AATA 4133

1605671 (Migration) [2016] AATA 4133 (15 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaydeep Prafullchandra Vara

CASE NUMBER:  1605671

DIBP REFERENCE(S):  CLF2014/55078

MEMBER:Catherine Wall

DATE:15 July 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) of Schedule 2 to the Regulations.

Statement made on 15 July 2016 at 12:05pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

SUMMARY

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 5 February 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Vara is a 31 year old citizen of India.  He applied for the visa on 10 April 2014 on the basis of his relationship with his sponsor, Ms Nirangika Deshini Gamage, a 34 year old Australian citizen. As Mr Vara did not hold a substantive visa at the time he applied for the partner visa, he does not satisfy the Schedule 3 criteria as required by cl.820.211(2)(d). Having considered Mr Vara’s circumstances, the Tribunal finds that there are compelling reasons to waive the Schedule 3 criteria, therefore the Tribunal remits the application to the department for reconsideration. 

   BACKGROUND

3. 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the applicant did not meet criterion 3001 and the delegate found that there were no compelling reasons to not apply the relevant Schedule 3 criteria.

5. Mr Vara sought review of the delegate’s decision by the Administrative Appeals Tribunal, and on the 27 July 2015 the Tribunal affirmed the delegate’s decision on the basis that it was not satisfied that compelling reasons existed at the time of application.

6. Mr Vara appealed the Tribunal’s decision to the Federal Circuit Court. On 7 April 2016 the Court remitted the matter by consent to the Tribunal for reconsideration. The Court found, for the reasons identified in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32, that the Tribunal fell into jurisdictional error for confining its consideration of compelling reasons to circumstances which only exist as at the time of application.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

9. 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?

10. 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).

11. 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

12. 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.

13. The relevant day in the present case is the day that the applicant last held a substantive visa. The Tribunal noted that the delegate’s decision indicates that Mr Vara last held a substantive visa on 28 July 2012.

14. The Tribunal finds that the application for the visa was made on 10 April 2014 and so was not made within 28 days of the relevant day. Accordingly, the Tribunal finds that Mr Vara does not satisfy criterion 3001.

    Compelling reasons

15. 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.

16. 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.

17. The Tribunal received a written submission from Mr Vara’s representative on 30 May 2016 which detail the compelling reasons which warrant the waiving of the criteria. It is submitted that the parties are in a long term relationship and their first child is due in July 2016, therefore their level of commitment and reliance on one another is substantial.

18. On the basis of the documentary evidence before it, the Tribunal makes the following findings:

    ·The parties married on 10 February 2014 and remain in a spousal relationship, therefore their relationship is long-standing;

    ·Ms Gamage is pregnant with her first child due on 10 July 2016;

    ·As Ms Gamage has taken maternity leave, Ms Gamage is largely financially dependent on Mr Vara; and

    ·If would be very difficult for Ms Gamage to relocate to India with Mr Vara at the present time.

19. The Tribunal considers that it would be unreasonable for Mr Vara to be required to apply offshore for the visa, given that he and Ms Gamage have been married for nearly 2 1/2 years and are having their first child.  The Tribunal finds that separation at this stage would not only compromise Ms Gamage’s wellbeing, but also that of their newborn child. On the evidence, the Tribunal considers that it is in the best interests of the child for the family unit to remain together in Australia.

20. The Tribunal finds that the parties’ circumstances at time of decision give rise to compelling reasons. 

    CONCLUSION

21. Having considered the circumstances of the applicant and his sponsoring partner separately and cumulatively, 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). Therefore cl.820.211(2)(d) is satisfied.

22. 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

23. 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) of Schedule 2 to the Regulations

    Catherine Wall
    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.