1709170 (Migration)

[2019] AATA 5218

1709170 (Migration) [2019] AATA 5218 (19 July 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709170

MEMBER:David Barker

DATE OF DECISION:  19 July 2019

DATE CORRIGENDUM

SIGNED:12 November 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Where the decision cover page reads 2017 it should read 2019.

David Barker
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709170

MEMBER:David Barker

DATE:19 July 2017

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) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 19 July 2019 at 10:25am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – did not hold substantive visa at time of application – did not apply for substantive visa within 28 days of relevant day – compelling reasons to not apply Schedule 3 criteria – Australian born child with sponsor – undue hardship and adverse consequences on sponsor if applicant returned to home country – sponsor reliant on applicant financially, emotionally and practically – remained unlawfully in Australia for three years – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211, Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

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 made by a delegate of the Minister for Immigration and Border Protection 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 24 January 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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)(ii) of Schedule 2 to the Migration Regulations. The delegate found that the applicant did not meet the timeframe requirements for the visa and there were no compelling reasons not to apply the requirements. Therefore he could not meet an essential requirement for the visa.

4. The applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean 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 matter should be remitted for reconsideration.

   BACKGROUND

7. The applicant is a national of Korea and is currently [a certain age].

8. The applicant first travelled to Australia between November 2002 and October 2003 on a Working Holiday visa. The delegate’s decision record, a copy of which was provided with the review application, notes that the applicant returned to Australia in June 2012 on a Visitor visa.  He was granted a further Visitor visa and then, in January 2013, a Student visa.  The Student visa was cancelled on 27 February 2014, on the grounds that the applicant ceased studying in mid-2013.  The applicant then remained unlawfully in Australia until applying onshore for the Partner visa on 24 January 2017.

9. The applicant’s sponsor was born in Korea.  She came to Australia on a Visitor visa in March 1999.  She subsequently became an Australian citizen in August 2016. She is [a certain age]. The sponsor was previously married from February 2005 to September 2016, with that marriage ending by divorce.  There were no children from that relationship.

10. On his visa application form the applicant stated he met the sponsor in June 2014 at [named suburb], NSW and that they made a commitment to a shared life together to the exclusion of all others [in] October 2014.  The parties were married in September 2016.

11. Prior to the hearing, the Tribunal received documents from the applicant including:

    ·[Birth] Certificate; ([Child 1],[Birthdate])

    ·[Hospital] Discharge Summary, dated [2019] and personal health record;

    ·Written submission from the applicant’s representative.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant held a substantive visa at the time of his application or had applied within 28 days of the day he last substantive visa ceased and, if not, whether there are compelling reasons not to apply the Schedule 3 requirements.

13. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files and documents provided by the applicant following the hearing, along with the oral evidence provided by the applicant and sponsor at the hearing.

14. The Tribunal has not made any critical assessment of the relationship between the applicant and the sponsor and has accepted at face value the claims that the parties are in a genuine and continuing spousal relationship.

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

15. 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).

16. 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

17. 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.

18. The applicant’s last substantive visa ceased on 27 February 2014 and he submitted the application for a Partner visa on 24 January 2017. Having regard to the definition of the relevant day in criterion 3001(2) the Tribunal finds that the applicant did not make the application within 28 days of the relevant day, which was 27 February 2014.

    Compelling reasons

19. 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.

20. 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.

21. The Explanatory Statement accompanying the introduction of the Schedule 3 criteria stated that the inclusion of a ‘waiver’ provision was in recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply for a Partner visa, but would otherwise be forced to leave Australia and apply offshore. The waiver was introduced to provide flexibility for the Minister where compelling circumstances arise, but only where there are reasons of a ‘strongly compassionate’ nature. The Statement referred to the following circumstances as examples of where a waiver may be justified:

    ·there are Australian-citizen children from the relationship; or

    ·the applicant and his or her nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer.

22. While they are not the only reasons that would be sufficient to establish a compelling reason to waive the Schedule 3 criteria, the Tribunal acknowledges either an Australian citizen child from the relationship or a long-standing genuine relationship, on their own, can be sufficient to establish a compelling reason.

23. The Tribunal has 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.

24. 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.

    Reasons for not holding a substantive visa

25. The applicant conceded he ceased study some time before his Student visa was cancelled.  he claimed that he did not realise the department sent him a letter about the cancellation of his Student visa because he was at that time living in a share household and did not pay close attention to all the mail that arrived at the household.  He said that by the time he was aware he no longer had a valid visa permitting him to remain lawfully in Australia he had started the relationship with his sponsor and so, he decided to remain in Australia.  He apologised for not complying with the Australian migration requirements.  The tribunal notes this latter claim is not supported by information provided in the visa application, where the applicant states he did not meet the sponsor until the end of June in 2014 and did not commence a relationship with her until some months later in October 2014

26. The Tribunal considers the applicant to not have a convincing reason as to why he remained unlawfully in Australia for a three year period without seeking to regularise his visa status. The Tribunal is not satisfied that the circumstances which led him to not hold a substantive visa at the time of the application provide a compelling reason for not applying the Schedule 3 criteria.

    Length of relationship and whether there is an Australian citizen child of the relationship

27. The applicant claims to have met the sponsor in June 2014 and that they commenced a relationship  some four months later in October 2014. The Tribunal has some concern as to the reliability of the applicant’s evidence in relation to this issue and has therefore taken the date of their marriage, [in] September 2016, as a reference point to determine the duration of their relationship . The applicant and the sponsor have been married for over two and a half years and the tribunal is satisfied it can appropriately be regarded as a long term relationship.

28. The applicant told the Tribunal that his and the sponsor’s marriage is stable and that they have a high regard for each other and their child. 

29. The Tribunal has considered the length of the relationship and finds this, when viewed in conjunction with other aspects of the parties’ circumstances contributes to a finding that there are compelling reasons to not apply the Schedule 3 criteria.

30. There is an Australian born child from the relationship, [Child 1], born [date] at [named Hospital].

    The Australian citizen child from the relationship and the hardship for that child and the sponsor if the parties were separated by the applicant’s departure from Australia

31. The parties have submitted a compelling reason to not apply the schedule 3 criteria to the applicant’s Partner visa application is hardship that would be caused, in light of the birth of the parties’ [child], if he was required to depart from Australia to lodge the application for a Partner visa from South Korea.  They both gave consistent evidence that the sponsor is the sole breadwinner in their household and has been so since shortly after she fell pregnant. She said that there is no clarity as to when she will herself return to work, as she also has care responsibilities to her frail aged mother who lives with the parties.  She said that her mother can only assist marginally with any care of [Child 1], because her mother has a [medical] condition which causes her a lot of pain and restricted physical functioning with tasks such as lifting and holding anything more than light weights.

32. The sponsor gave evidence she is reliant on support from the applicant, financially, emotionally and practically. She said that she is unsure how they would cope financially if the applicant had to return to South Korea, as there would inevitably be a period of time where he was not earning an income and she is not sure how she would manage her in Australia.  She said her mother is a permanent resident, but not in receipt of any income support from the Australian government. The sponsor said the parties are living in privately rented accommodation and they do not have substantial savings.  The applicant gave evidence that he works as a [occupation] and that the sponsor previously worked [in] a local [business].

33. The sponsor did not rule out the possibility of she and [Child 1] accompanying the applicant  to South Korea if he was required to depart from Australia, as she would not what their to be a separation between father and child, or between her and the applicant for an extended period of time.  She did however raise concern that as she and [Child 1] are Australian citizen, they would not have access to medical services offered through the equivalent of Medicare in South Korea and that any treatment age related  health checks would need to be paid for.  She said that this would be problematic because of the inevitable financial hardship they would face for a period as a consequence of the applicant ceasing work in Australia and facing an uncertain prospect of securing employment back in South Korea.

34. The applicant expressed concern with regard to the impact on both his [child] and the sponsor if he was required to return to South Korea for a period of time.  He said he is an involved parent and husband and that there would be emotional and psychological hardship if a period of separation in the relationship between him, the sponsor and their child was forced upon them.

35. The Tribunal has considered the available evidence with regard to the birth of the parties’ first child.  The Tribunal  is satisfied the sponsor and [Child 1] would experience financial, practical, emotional and psychological hardship as a consequence of the applicant not being able to remain with them in Australia for the foreseeable future.  In forming this view the Tribunal has taken account of the child’s young age, developmental needs and the negative impacts on his wellbeing and the sponsor’s capacity to care for him if they were separated from the applicant by his needing to return to South Korea. The Tribunal  accepts the access that [Child 1] has to baby health and related health services in Australia, either through Medicare and the public health system, is a right accorded to him as an Australian citizen child and that he may not have automatic access to equivalent services in South Korea. I have also taken into account the emotional hardship the applicant could experience as a consequence of separation from his child during the developmental significant early period of [Child 1]’s life, and the longitudinal adverse consequences such a period of separation can have. The Tribunal is satisfied the fact there is now an Australian born child from the relationship is a compelling reason to not apply the Schedule 3 criteria.

    Overall Assessment

36. The Tribunal has considered all of the claims made by the applicant in relation to his circumstances.  The Tribunal finds the length of the parties’ relationship, the birth of their child, the health conditions affecting the sponsor’s mother and the sponsor’s reliance on financial  support from the applicant . I accept there are constraints on the sponsor returning to work for the foreseeable future and that these reasons cumulatively provide compelling reasons why there would be undue hardship and adverse consequences from a requirement the applicant return to South Korea to lodge the application for a Partner visa from that location.

37. On the basis of the cumulative findings it has made in this matter and after considering all the relevant circumstances as a whole, 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).

38. 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

39. 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) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

    David Barker
    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.