1606043 (Migration)

[2016] AATA 4105

1606043 (Migration) [2016] AATA 4105 (12 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandra Maria Da Silva Pinheiro
Mr Ruben Jorge Martins Figueiredo Pinto Costa

CASE NUMBER:  1606043

DIBP REFERENCE(S):  BCC2015/1068347

MEMBER:Kira Raif

DATE:12 July 2016

DECISION:The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

Statement made on 12 July 2016 at 11:22am

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 14 April 2016 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant is a national of Portugal, born in December 1979. She entered Australia in November 2014h holding a Visitor visa, which expired in February 2015. The applicant applied for the Partner visa on 8 April 2015 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant met Item 3001 and found there were compelling reasons to waive that requirement. The applicant seeks review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 12 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the second named applicant and the sponsor’s god-parents. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the applicant travelled to Australia holding an e-Visitor visa in November 2014. That visa expired on 24 February 2015. The applicant was granted a number of bridging visas before making the application for the Partner visa.

2. The Tribunal finds that the applicant last held a substantive visa when her Visitor visa expired in February 2015. She was not the holder of a substantive visa at the time she made the application for the Partner visa in April 2015. 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 she 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 her e-Visitor visa expired on 24 February 2015. 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 April 2015, 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 was requested to provide additional submissions addressing the Schedule 3 criteria but, according to the primary decision record, failed to do so. The applicant provided evidence of her relationship with the sponsor and additional evidence has been presented to the Tribunal. The applicant, the sponsor and other witnesses also spoke in oral evidence to the Tribunal about the relationship. The Tribunal acknowledges that evidence but makes no finding on the nature of the applicant’s relationship with the sponsor because the Tribunal is not satisfied that a genuine relationship of any length, even if established, would constitute a compelling reason for the waiver. In the Tribunal’s view, such a relationship is nothing more than the basis on which this application is made. In reaching this conclusion, the Tribunal is mindful of the earlier Departmental policy which suggested that a long term relationship may be a compelling reason. In the Tribunal’s view, such a policy is more restrictive than, and not consistent with, the legislation.

10. The applicant explained to the Tribunal in oral evidence that her passport was lost or stolen and because she did not have the passport to travel overseas, she could not travel to make the application. The applicant claims that this was the reason she did not have a substantive visa. The applicant provided to the Tribunal an undated and unsigned statement from the NSW Police referring to the applicant being a victim of crime. There is no indication in that document as to when the applicant lost her passport and, more significantly, there is no indication that the applicant could not have made the application in Australia for the Partner visa earlier, even if she did not hold a passport at the time. The applicant informed the Tribunal that her passport was stolen on 24 February 2015, the day her visitor visa expired. Presumably, she could have applied for the Partner visa before the expiry of her Visitor visa. The applicant said she did not make the application earlier because she was not sure she wanted to and needed more time for such an important decision so that it appears her decision to delay the application was not affected by the loss of the passport. The applicant informed the Tribunal that it took about 20 days to obtain the passport, which would have been less than 28 days since the expiry of her Visitor visa. That is, the applicant had the opportunity to make the application for the Partner visa before her Visitor visa expired and within 28 days after the expiry of her visa. The applicant then said that it took her a long time to get the supporting document and that appears to be the reason her application was delayed. The Tribunal acknowledges the applicant’s evidence that the Department granted her extensions and she thought she was doing the right thing but there is no obvious reason such documents could not have been collected earlier or, to the extent that these were not required to make a valid application, why the applicant could not have obtained these at a later time. The Tribunal is not convinced there were good reasons for delaying the application and the Tribunal is not satisfied that the applicant’s desire to collect all the documents before making the application constitutes a compelling reason for the waiver.

11. The applicant offered a number of reasons why she did not make the application earlier and the Tribunal acknowledges that evidence. However, ultimately, the issue here is not why the applicant was not the holder of a substantive visa at the time she made the application for the Partner visa. The issue is whether there are any compelling reasons at the time the application was made or since that time. Whatever caused the applicant to delay her application for the Partner visa, the Tribunal is not convinced that such circumstances continued to exist at the time the present application was made or since that time. The Tribunal is not satisfied that such circumstances give rise to compelling reasons for the waiver.

12. The applicant also said that she was acting on advice of the Department and nobody explained to her the 28 day requirement. She said she did not understand the law and was not aware of the distinction between a substantive visa and a bridging visa. The Tribunal is mindful that information about Partner visas is readily available on the Department’s website, from any DIBP officer or any migration agent. The Tribunal is not satisfied that the applicant’s claimed lack of knowledge of the law constitutes a compelling reason for the waiver.

13. The applicant referred to making a decision with her partner to get married and have a family in Australia. She said they wanted to establish their family and live in Australia and her motives are to be with her family in Australia. Both the applicant and the sponsor spoke about their desire to be together and the fact that they do not wish to separate. In the Tribunal’s view, such circumstances apply to every applicant making an application for a visa in Australia and there is nothing compelling about such circumstances. The Tribunal also notes that if the present relationship is genuine and if the applicant is to leave the country, she will be able to reapply for another visa and may be able to return to Australia. Any period of separation with her family would be in a temporary once. While the Tribunal accepts that the applicant may not wish to be separated from her family, such circumstances would be common to any relationship. The Tribunal is not convinced such matters give rise to compelling reasons.

14. In their oral evidence to the Tribunal both the applicant and the sponsor referred to having a close relationship with the sponsor’s children. The Tribunal acknowledges the court orders in relation to the sponsor’s children. The Tribunal notes the applicant’s evidence that the children are to live with their mother and that the father is to have certain access and other rights in relation to the children. The Tribunal accepts that the sponsor has certain parental responsibilities in relation to the children. However, there is nothing to suggest that the applicant herself has any parental responsibilities in relation children, even if the Tribunal were to accept that the applicant does spend time with the children and takes them to sporting activities and other functions. The Tribunal is not satisfied that the applicant’s relationship with the children is anything other than an ordinary relationship between children and a step-parent and the Tribunal is not satisfied such a relationship would be adversely affected by the applicant’s temporary departure from Australia. There is also nothing to suggest that the sponsor would be unable to perform his parental responsibilities in relation to the children if the requirements of Item 3001 are not waived. The Tribunal is not satisfied the applicant has established compelling reasons for the waiver as a result of her relationship with the sponsor’s children.

15. The applicant informed the Tribunal that by the time she made the application, she did not want to leave Australia. In the Tribunal’s view, that is hardly a compelling reason for the waiver.

16. The second named applicant spoke about the difficulties of his initial life in Australia, his settlement in Australia and the fact that he has made friends. He said he cannot see himself going back to Portugal. The Tribunal accepts that evidence and accepts that his preference is now to remain in Australia. Again, the Tribunal does not consider such matters to be compelling. The Tribunal is mindful that the applicants never had permanent visas to remain in Australia and could not have had an expectation that they would be permitted to remain in Australia until such visas are granted. As noted above, any period of overseas residence would be a temporary one and may not be a lengthy one. The Tribunal accepts that the applicant may have to be separated from his friends and his adopted lifestyle but the Tribunal is not convinced that the applicant’s preference to live in Australia constitutes a compelling reason. The second named applicant also spoke about his close relationship with the sponsor and the fact that he plays a father-figure role. He referred to the close relationship with his brothers. The Tribunal is not satisfied that such relationships need to cease if the applicants are to leave Australia. There is no reason the parties would be unable to maintain contact, even if the applicants were to leave Australia, and maintain friendships and relationships during the period of the applicants’ absence from Australia. The second named applicant said that Australia is his home and he has nothing to go back to. He said it is easier for him to get a job in Australia (although he claims he cannot work and is supported by his family).He suggested Australia is a better country and he wants to stay in Australia. The Tribunal is not satisfied these matters give rise to compelling reasons.

17. Mr Richard Pinheiro also referred to having already paid money for the visa and said it makes no sense to require the applicants to spend more time and money to make another application. The parties have not established that they have no funds to make an application offshore or that they are unable to accept access funds to enable them to make another application offshore and the Tribunal is not satisfied that is the case. As for the claimed inability to work, there is no evidence before the Tribunal to indicate that the applicants sought employment and have been unable to find employment in Portugal. The Tribunal is not satisfied that the applicants will be unable to work in Portugal. The Tribunal is not satisfied that the inconvenience of having to leave the country and make an application offshore constitutes a compelling reason for the waiver.

18. Having considered the applicant’s circumstances singularly and cumulatively, the Tribunal is not satisfied there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

19. The Tribunal has found that the applicant does not meet Item 3001 and that there are no compelling reasons to waive the Schedule 3 criteria. The Tribunal is not satisfied that the applicant meets cl.820.211(2)(d)(ii). There is no evidence that the applicant meets the alternative criteria in cl.820.211(3) – (9).

    Conclusion

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

    DECISION

21. The Tribunal affirms the decisions not to grant the applicants Partner (Temporary) (Class UK) visas.

    Kira Raif
    Senior Member