1709523 (Migration)

[2019] AATA 6105

1709523 (Migration) [2019] AATA 6105 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709523

MEMBER:Peter Vlahos

DATE:13 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 September 2019 at 10:58am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver –  history of visa non-compliance – fear of applying offshore – impact on wife and step-child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221; 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 February 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 Regulations because it was considered that there were no compelling reasons for waving the Schedule 3 criteria to enable the applicant to lodge a Partner visa onshore.

4. The applicant appeared before the Tribunal on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor (and spouse): [Ms A], who is the applicant's Partner.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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 exemptions 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).

9. 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 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.

   Background

10. The applicant first arrived in Australia as the holder of a Student visa (subclass 573) and that visa expired on 4 April 2011. On 24 March 2011, the applicant lodged an application for a subclass 485 (graduate) visa, and that application was refused by the Department on 12 April 2012. The applicant then lodged an application for review of this decision with Migration Review Tribunal (MRT) on 27 April 2012 and the MRT affirmed the decision to refuse the visa on 26 November 2013.

11. On 7 January 2014 the applicant then requested a ministerial intervention in relation to his subclass 485 application which had been refused by the Department. On 13 August 2014 the Minister informed the applicant that he would not consider his request for ministerial intervention.

12. The applicant thereafter from 3 January 2014 to 12 February 2017 resided in Australia unlawfully.

13. On 13 February 2017, the applicant was granted a Bridging E Visa; on condition he would lodge an application for a substantive visa – no later than 27 February 2017.

14. On 13 February 2017, the applicant lodged a Partner visa (subclass 820/801) and was granted a Bridging Visa E in association with this application on 27 February 2017.

    Criterion 3001

15. 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.

16. The applicant last held a substantive visa on 4 April 2011. This application was lodged on 13 February 2017. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

17. 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 applying the criteria.

18. 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.

19. In passing, the provisions are not intended to facilitate persons who:

    ·Fail to comply with their visa conditions; or

    ·Deliberately manipulate their circumstances to give rise to compelling reasons; or

    ·Can leave Australia and apply for a Partner visa outside Australia.  

20. Prior to the Department making its decision on 27 April 2017, the applicant was provided with the opportunity[1] to submit any compelling factors for the Department to consider. On 22 March 2017 the applicant provided his response. The applicant stated that he had arrived in Australia as a student dependent in April 2009 and then had made an application for Temporary Skilled – VC 485 Graduate visa which was refused on 26 November 2013. He also made an application for a student visa in April 2011 which the Department refused in June 2011. He subsequently sought merits review on 27 April 2012 and the Department’s refusal was affirmed by the Tribunal on 26 November 2013.

    [1] Department’s natural justice letter to the applicant dated 21 March 2017, see Department File, BCC2017/748571 Folio [72]

21. The applicant also made it known that he had gone through a very “…difficult phase in his personal life.” He had arrived in Australia with his ex-wife in 2009. Over a period of time, differences between the couple and financial problems dominated the marital relationship. The applicant described his former wife as always demanding money not only for her every day expenses, but also for sending money to her parents. When the applicant began to resist these demands, his former wife threatened him with withdrawing his sponsorship and forcing him to return to India. Over time, the differences between the applicant and his wife widened and they divorced [in] January 2011[2].

    [2] Divorce Order – Family Law Act 1975 see DIBP File folio [43]

22. Nevertheless, the divorce had further consequences. His former wife’s family brought court proceedings against the applicant in India for the payment of a dowry and also harassed his family. Matters escalated when the dispute was referred to a village head. The village head determined that the applicant’s family was not obligated to pay a dowry to the applicant’s former wife’s family. This made the applicant’s former parents-in-law angry and they directed threats towards his family and informed him, if he returned to India, he would be killed. The applicant recounted in his letter to the Department – because of these threats against his person, he has never travelled to India since 2009.

23. The applicant explained that he became ‘unlawful’ for a considerable period of time not because of any ‘choice’ on his part but ‘due to factors which were beyond his control.’ The applicant emphasised the fact that his previous visa had never suffered from any wilful non-compliance with any of its conditions. Indeed, the applicant stated that that his present relationship was ‘genuine’ and ‘on-going’ with his current wife who is an Australian citizen. He is also very attached to his step-son and claimed that the feeling was reciprocated. The applicant claimed that his step-son ‘finds a lot of happiness’ with him whom he did not have with his biological father. Both live together in a harmonious family environment which is ‘stable’ and has formed a ‘strong relationship’. The applicant end’s his letter to the Department with the assurance that if his Partner visa were granted, he had every intention of fully complying with any condition or conditions which were attached.  

24. The Department placed little weight on the applicant’s assertions as he was unable to provide evidence to support his claims as far as it concerned his ongoing legal battles in India with his former wife’s family. The Tribunal similarly places limited weight on the applicant’s assertions that he that he was unable to return to India when his first marriage broke down. The applicant’s credibility is injured in this regard given the subsequent event where he continued to remain in Australia unlawfully for three years until he decided to engage with the Department again because his circumstances were conducive to him applying for a Partner visa on 23 February 2017.

25. In any event, even if the Tribunal accepts that the applicant had indeed the difficulties he claims, the Tribunal is unable to ascertain how such circumstances are compelling as to convince the Tribunal to waive the Schedule 3 based on his evidence only.

26. The Tribunal from the outset was disturbed by the fact that the applicant had for a period of three years neglected to inform the Department of his whereabouts and continued to live and operate within the community as an unlawful citizen. From the evidence on the applicant’s file, it is noted that there was no information provided to substantiate the claim made, that the applicant was unable to utilise the option to make an application for protection if he actually believed that he faced a significant risk of harm in India. Instead, the applicant lodged a subsequent application for a Student visa in 2011 which was refused by the Department on 26 June 2011. It was further noted in the decision of refusal (student visa) that he failed to notify the Department of his separation and divorce from his wife (which had occurred in January 2011) and continued to reside on his former wife’s Student visa as a ‘dependant spouse’ until April 2011. The delegate also noted that the applicant’s relationship with his wife had ended in January 2010 given that spouses must be separated for at least a year to qualify for divorce. It should be noted, it is an obligation of all visa holders to strictly comply with their visa conditions and to advise the Department of any variations of changes to their circumstances immediately.

27. Asked to explain his circumstances surrounding his visa history, the applicant told the Tribunal that he had met with bad fortune in his life. The threats made against him and his family members in India over disputes about an unhonoured ‘dowry’ to his former wife’s family were real and ongoing. He went on to tell the Tribunal that he could not return to India because of this dispute and he had been told by his family to remain in Australia. So he did just that. With regard to the issues of his visa non-compliance for a considerable period of time, the applicant explained to the Tribunal that at the time of his upsets with his former wife, he did not know what to do and that at that time, he did not engage a migration agent to advise him of his options or to work out some proper path ways towards making legal his presence in Australia.

28. It was during this time (in particular, 2013) that the applicant met his current sponsor, his second wife. The Tribunal was told that the two met through introductions made to each other by ‘family friends’. It was noted by the Tribunal that the applicant’s sponsor (now wife)[3] had also been divorced and has a child from her former marriage.

    [3] Who is an Australian citizen and see Divorce Order Family Court Act 1975 in DIBP File Folio [42]

29. From what the Tribunal understood of the ways and means the relationship between the applicant and his (current) wife developed was by a process of friendly introductions and then the couple’s parents – the father’s in particular determined (along traditional lines) the finer details which led to the nuptials. In the meantime, through a series of meeting between the two (according to the applicant) the applicant and his wife became familiar with each other’s past issues and each provided a great deal of comfort to the other and both looked forward to having a shared life ahead as a family. All matters finally resolved themselves for both parties in 2016 and they got married in 2017.[4]

    [4] Certificate of Marriage dated (COPY) 4 February 2017 see DIBP File Folio [46]

30. The Tribunal was told that the applicant and his wife (and child) began living together at rented premises, situated at [Address 1]. The Tribunal was told that a there was lease agreement in existence but none was submitted into the evidence before the Tribunal. However, the current residence was confirmed by the evidence provided subsequently by the applicant’s sponsor. The applicant went on to tell the Tribunal that he is not currently working because he is not permitted to do because of his current visa circumstances. He remains reliant for his subsistence and that of the household on his wife who is employed.

31. The applicant told the Tribunal while his wife is working he has the responsibility of caring for his step-son. This care involves getting him ready for school and taking him to school and returning him home at the end of each school day. The applicant also told the Tribunal that when he is not involved in taking care of his step-son, he actively searches for suitable employment as to secure such work – when he is provided with the his work rights.

32. The Tribunal noted that evidence was submitted of a considerable number of photographs of the couple with friends and family and as a family unit enjoying themselves at various social gatherings and events. There are also photographs provided of the couple as family unit enjoying their holidays in [Australian State 1] in January 2018. Indeed, there is no doubt in the Tribunal’s mind that the applicant and his wife – and her son are indeed a family unit and functions as such and that it is acknowledged and recognised as such by their friends and their family.

33. In the discussions that ensured before the Tribunal on the issue of compelling grounds the applicant told the Tribunal that Schedule 3 considerations should be waived for the reason that any separation between the applicant and his step-son could cause injury or some mental disturbance for the child not having his ‘step-father’ herein Australia. The applicant’s reasoning was that his step-son had grown up with him, had become close to him and relied on him for support and comfort. It was also raised with the Tribunal as a compelling ground, the fact that the family unit relied on him being here in Australia allowing his wife to work while the applicant for the time being was taking care of the step-son. Finally, the applicant stated that his wife had already experienced the upset and difficulties of one separation than to be forced to live through another separation.

34. Similar concerns as submitted by the applicant were made by his sponsor/wife to the Tribunal.

35. The Tribunal has had regard to the reasons submitted as to why the applicant had not put at rest his previous visa issues. The Tribunal also noted the wider implications of his divorce in India as the applicant claimed but it should be noted, the applicant provided no documents concerning any proceedings brought against him or against his family for the non-payment of dowry money to his former wife’s family and the Tribunal gives limited weight to such claims and does not consider them compelling grounds or exceptional circumstances in this instance. Moreover, the applicant entered the Partner visa process with his current wife/sponsor knowing that his had been unlawful for a considerable period of time and had made no efforts prior to the current application of making himself  a ‘legal non-citizen’. Again, the claim that he did not have advice from any proper source is unacceptable as a reason or excuse. The applicant knew his issues and neglected them even when he had an ongoing obligation to keep the Department informed properly of his visa status while in Australia.

36. The Tribunal also had regard to the circumstances as they involve and affect the life of the applicant’s step-child and the welfare of his wife. Again, in the Tribunal’s opinion there is little evidence to suggest that the applicant, if he had to leave Australia and return to India, the family unit would be severely traumatised. Indeed, any separation between persons who hold a deep affection for each other would be difficult but the separation would not be for an indefinite period but until the proper process complete (offshore) the visa process. The step-son will not be adversely affected as was claimed by the applicant if he was to return to India. The child remains with his sole support his mother. The same could be said about the applicant’s sponsor/wife. The effect of separation would be felt but would not injure her ability to carry on the maintenance of the household as she had done so on her own prior to her marriage.

37. Therefore for these reasons as referred to in paragraphs [33] to [36] the Tribuanl is not persuaded that the applicant’s desire to remain in Australia so as to not adversely affect his wife/sponsor and step-son, of it constitutes compelling reasons for waiving the Schedule 3 criteria.

38. The Tribunal has considered the applicant’s set of circumstances as far as it involves his sponsor/wife and step-child. The Tribunal has also considered the applicant’s past visa history and his reasons why he had remained an unlawful non-citizen within Australia for a period of three years. Nonetheless, having regard to the information before it, the Tribunal is not satisfied that either individually or cumulatively, the circumstances presented by the applicant represent compelling reasons for waiving the Schedule 3 criteria.

39. The Tribunal has no doubt that the applicant and sponsor and his step-son will be inconvenienced and may experience some difficulties for a period of time while the applicant’s Partner visa application is being considered while he is offshore, but the Tribunal does not consider that such hardships amount to compelling reasons for waiving the Schedule 3 criteria.

40. The Tribunal is not making an assessment about whether the relationship is genuine or not. The fact that the relationship has had its issues (as discussed) does not mean it is not genuine. But given that it is a prerequisite that persons are in a genuine and continuing spousal relationship (as defined) for the grant of the visa, the Tribunal is not satisfied that of itself, or in combination with other factors, that the genuineness of the relationship gives rise to compelling reasons.

1. The Tribunal has also taken into account the applicant’s long history of evading Australia’s immigration authorities. The Tribunal does not find this aspect of the applicant’s conduct determinative of the review; however, it plays a part in the Tribunal’s concerns about the parties deliberately manipulating their circumstances to give rise to compelling reasons, particularly when the applicant had several occasions, when he could have returned to her home country to apply for a Partner visa. The Tribunal appreciates that these matter are now historical and that as per Waensila the Tribunal needs to consider the applicant’s current circumstances.

2. Nonetheless, it cannot be said that the parties did not contribute to the circumstances which they find themselves. Furthermore, even putting aside the applicant’s conduct in misleading the Department, the Tribunal does not find that any of the circumstances either individually or holistically are such that they constitute compelling reasons for waiving the Schedule 3 criteria. The Tribunal concedes that the circumstances currently may be difficult, but the Tribunal does not accept that they are compelling.

3. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211 (2)(d)(ii).

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

   DECISION 

5. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Peter Vlahos
   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.