1606624 (Migration)

[2016] AATA 4764

1606624 (Migration) [2016] AATA 4764 (5 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606624

MEMBER:Mary Cameron

DATE:5 December 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 05 December 2016 at 3:09pm

CATCHWORDS

Partner (Temporary) (Class UK) visa – Subclass 820 – cl 820.211 – Schedule 3 criteria – Compelling reasons – Rehabilitation from drug addiction – Shared family responsibilities – Mental health treatment – Decision under review remitted

LEGISLATION

Migration Act 1958
Migration Regulations 1994

CASES

Waensila v MIBP [2016] FCAFC 32

MZYPZ v MIAC [2012] FCA 478

Babicci v MIMIA (2005) 141 FCR 285

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 [in] March 2014 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 [in] August 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 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 applicant did not satisfy Schedule 3 criteria and the delegate was not satisfied that there were compelling reasons such that the Schedule 3 criteria should not be applied.

4. On 31 March 2015 the Tribunal affirmed the decision on the basis that there were no compelling reasons at the time of the visa application to not apply to Schedule 3 criteria. The applicant subsequently appealed to the Federal Circuit Court.

5. Prior to the appeal being determined, on 11 March 2016 the Federal Court in the matter Waensila v MIBP [2016] FCAFC 32 found that circumstances which constitute 'compelling reasons' for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made.

6. In light of the Waensila decision, [in] April 2016 the Federal Circuit Court remitted the matter for reconsideration.

7. The applicant appeared before the Tribunal on 18 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's partner.

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

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)

13. The applicant in the present case is [an age] year old Indian national who arrived in Australia in December 2008 as the holder of a [student] visa which ceased [in] March 2011. His sponsor is [Ms A] who is [an age] year old Australian citizen resident in [City 1].

14. The relevant day in the present case is the day the applicant last held a substantive visa, being [in] March 2011. The visa application was lodged [in] August 2012. The Tribunal finds that the application for the visa was not made within 28 days of the relevant day and accordingly the applicant does not satisfy criterion 3001.

15. As the applicant does not meet the Schedule 3 criterion 3001 it is not necessary to assess the application against criteria 3003 and 3004.

    Compelling reasons

16. 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.

17. 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.

18. The Tribunal has also had regard to policy guidance in the Department's Procedures Advice Manual (PAM 3) which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who fail to comply with their visa conditions or deliberately manipulate their circumstances to give rise to compelling reasons.

19. The Tribunal is not bound by Department policy. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.

20. At the Tribunal hearing the applicant gave evidence that after arriving in Australia as a student he had some problems with his education provider which he reported to the Department. He applied for a second student visa which was refused and that refusal decision was affirmed on the review by the Tribunal (differently constituted.) He then applied for a partner visa sponsored by [Ms A] with whom he was in a relationship.

21. The applicant described the inception and development of the parties’ relationship from the time they first met in June 2011. He told the Tribunal that their relationship became exclusive after one or two months and they married [in] June 2012, in the presence of the applicant’s sister and her husband.

22. The visa applicant lives in [a town] with his sponsor and with his sister and her family in a house they share. The applicant is not working but his sister works in [a different city] and the applicant takes care of her children while she works. The sponsor is not working either but is in receipt of a disability pension. They are able to manage financially because they pay no rent for reason that they contribute to the household in other ways including childcare.

23. In regard to the compelling reasons such that the Schedule 3 criteria should not be applied in the case the applicant told the Tribunal that he had bad experiences with a former representative who had not even told him that his student visa application had been refused, so he had not really understood his situation.

24. He stated that there are compelling reasons in the case in that his sponsor used to abuse drugs [and] alcohol and this has adversely affected her mental health. He stated that she was using a lot of drugs and drinking a lot when the parties commenced their relationship, and the applicant has assisted her in her multiple attempts to stop abusing drugs and alcohol. He supported her when she commenced a [rehabilitation] program. She has been on [this] program for four years. She last relapsed and used [a drug] about six months ago, but has not abused any substance since then. The applicant told the Tribunal that he and the sponsor spend their days together, and they are very close, and he is able to care for her and make sure that she does not go back to her past habits.

25. The parties have provided the Tribunal with detailed medical records of the sponsor. A letter from [a medical service] in [Town 1] dated [in] August 2016 records the sponsor attending [a doctor] on a fortnightly basis from May 2005 to August 2016. It records her medical conditions as [details deleted]. It states that her treatment includes [a prescribed therapy] and she is prescribed [medication] for this. She is also prescribed [a medicine for one condition]. She is managed by [a] clinic at [Hospital 1] for a past [health condition]. She has been referred to [a specialist] for review of her [other health issues]. She is on several prescription medications and has a mental health plan in place.

26. Also provided to the Tribunal are three letters from [a different doctor] dated between March and July 2016 setting out several of the sponsor’s medical conditions and treatments; a copy of a [Hospital 1] Discharge Summary dated March 2016 in respect of the sponsor; pathology test results;  a Patient Summary and letters from [her medical service] dated 2015 stating that the sponsor is on [a prescribed treatment] for [a drug] dependence, and has a known history of mental illness, namely [conditions], and stating that she would benefit from the psychological and emotional support of her partner in managing her ongoing substance dependence; and a copy of the sponsor’s Mental Health Treatment Plan

27. The applicant told the Tribunal that he and the sponsor are very attached to one another emotionally. He stated that is the sponsor’s primary source of emotional and psychological support, as her family is dysfunctional and the sponsor has little to do with any of them. Her parents separated many years ago. The applicant told the Tribunal that he takes the sponsor to her doctor’s appointments because she is scared of driving. They have lived in a number of different suburbs of [City 1] together, but it is easier for the sponsor to stay ‘clean’ of drugs now that the couple has moved in with the applicant’s sister in an area distant from the [area] where she was in ‘bad company’ in the past.

28. The Tribunal queried whether the sponsor has any health problems other that those associated with her history of substance abuse and addiction. The applicant told the Tribunal that she has a [specific] problem resulting from an injury she sustained prior to the commencement of their relationship. This is why she receives a disability pension. She also has [a further condition] and the couple will need to undergo [treatment] if they are to have a baby together.

29. The Tribunal discussed with the applicant his apparent lack of knowledge of the sponsor’s recent health concerns including her presentation at [Hospital 1] in March 2016 with [specific conditions], matters which the Tribunal suggested the applicant might have been expected to know about. The applicant responded that the sponsor does not always tell him about things, but that she sees a psychologist in [Town 1] every week for her mental health problems. He told the Tribunal that if he is compelled to depart Australia he believes that the sponsor will be at risk of falling into her old habits, and putting her mental and physical health in serious jeopardy.

30. The sponsor provided the Tribunal with oral evidence consistent with that of the applicant regarding the inception and development of their relationship, their marriage and their personal circumstances. She told the Tribunal that they have been in a committed and exclusive relationship since a couple of months after they met in June 2011.

31. The Tribunal asked the review applicant about her physical and mental health concerns and about why she had not told the applicant about suffering from a serious health condition in early 2016 ([the specified conditions]). She told the Tribunal that she is forgetful because of the medication she takes including [two medications]. She told the Tribunal that her past drug abuse has also affected her. She told the Tribunal that she has also had a life long tendency to keep things to herself, and although the applicant takes her to her appointments for medical treatment, she does not necessarily tell him about all of that treatment. She told the Tribunal that she was scared when she [experienced one medical condition] but once she was treated and told she would be ok she didn’t think about it anymore. She told the Tribunal that she and the applicant might have been having a “tiff” at the time that she developed [a further condition], and may have stayed with his mates, but she can’t clearly recall what was happening at the time.

32. The sponsor described living with the applicant and his sister in his sister’s home and helping to look after the applicant’s sister’s children while the applicant’s sister works interstate. She expressed her feelings about appreciating the stability of that arrangement and the benefit of that stability in managing her addictions. She agreed that the applicant has supported her in her efforts to stop using [a drug], but that she has nevertheless relapsed a few times, most recently about eight months ago. She told the Tribunal that she sufferw from very severe [specified conditions]. She does not take medication for [these conditions] but sees a counsellor at her clinic in [Town 1] under a Mental Health Plan every second week. She explained that she attends the medical clinic on a weekly basis, and usually the applicant drives her there.  

33. The sponsor described her [specific] injury. She told the Tribunal that she had [an operation] in the past and has [suffered a relapse] again recently. She wants to have further surgery but needs to save some money to do so.

34. The sponsor told the Tribunal that it would be very difficult for her to cope if the applicant were to depart Australia. He has secured them a home where she is settled with him and with his sister who has also been a great support to her. She has no other place to live and no other source of material support.

35. The Tribunal suggested that the evidence before it suggests that the applicant would be able to manage her long standing health problems in the case of the applicant’s temporary absence from Australia, as she has done in the past. The sponsor told the Tribunal that it is possible she could do so, but that she is very fearful that she would relapse into substance abuse if she did not have the applicant with her. She told the Tribunal that it took her a long time to tell him about all of her issues, and she has really struggled to cope. She also experiences a lot of physical pain.

36. The sponsor told the Tribunal that she genuinely believes that her relationship with the applicant is there for the ‘long haul’ and that living with him and his family keeps her safe and gives her purpose. They have been married for more than four years. She likes being with the children. She told the Tribunal that she has no other family to support her. It would not be possible for her to accompany the applicant were he to depart Australia because she has complex health problems, is on a [rehabilitation] program, and needs to attend her medical clinic weekly. She also cannot remove herself from her mental health provider.

37. The Tribunal notes that much of the evidence before the Tribunal was not available to the delegate at the time of the primary decision.

38. In relation to the compelling reasons for the waiver of the Schedule 3 criteria, the Tribunal has considered all of the evidence before it and accepts that the that the applicant and sponsor have been in a long standing spousal relationship since their marriage in June 2012 some four and a half years before the date of this decision.

39. Based on the medical evidence provided, together with the consistent oral evidence of the applicant and sponsor, the Tribunal finds that the sponsor suffers from significant disability resulting from a [specific] injury, as well as from long standing [drug] and alcohol dependence and [mental health conditions].  She is on [a prescribed therapy]. She receives a disability support pension and is unable to work. Her doctor, who has treated her on an ongoing and regular basis since 2005 has stated that it would be to the sponsor’s advantage if her partner (the applicant) is allowed to support her psychologically and emotionally and to guide her with her ongoing substance dependence.

40. At the Tribunal hearing the sponsor presented credible evidence that she is fearful for her health and wellbeing should the applicant depart Australia. In particular she is afraid of relapsing into serious drug addiction.

41. The Tribunal accepts, based on the evidence before it which is set out above, that the sponsor relies on the day to day care and support of the applicant, and would suffer significant psychological hardship if the applicant was forced to depart Australia. The Tribunal also accepts that it would not be possible for a person with the sponsor’s health conditions to travel to India, where she would be removed from her home environment and away from her treating medical practitioners and psychologist, and from the [rehabilitation] program on which she relies.

42. In consideration of all of the evidence before the Tribunal, and with regard to the findings of the Court in Waensila v MIBP [2016] FCAFC 32 the Tribunal finds that there are compelling reasons in the case such that the Schedule 3 criteria should not be applied.

43. 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).

44. 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

45. 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.

    Mary Cameron
    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.