1714410 (Migration)

[2020] AATA 3119

1714410 (Migration) [2020] AATA 3119 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714410

MEMBER:Justin Meyer

DATE:21 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 April 2020 at 6:57pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – not holder of substantive visa – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons – relationship ceased – sponsorship withdrawn – previous homosexual relationship – non-refoulement obligations – business with specialised skillset in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 349, 351, 359, 375
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 14 April 2016 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 applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because he did not meet Schedule 3 criterion 3001 in that he ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate further found that there were no compelling reasons for not applying the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 4 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there are compelling reasons for not applying the Schedule 3 criteria The other matter that the Tribunal is to resolve is whether the applicant’s matter should be referred to the Minister for Home Affairs (the Minister) with a recommendation that, pursuant to section 351 of the Migration Act 1958, the Minister intervene on public interest grounds to grant him a permanent residence visa.

   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 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).

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 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

10. 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.

11. The visa application was not made within 28 days of the ‘relevant day’, having regard to the definition of that term in criterion 3001(2), i.e. the last day when the applicant held a substantive visa. The applicant applied for the visa on 14 April 2016. His last substantive visa ceased on 18 July 2014.

12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

13. 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.

14. 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.

15. The applicant submitted the following in writing:

    ·That prior to his relationship with his sponsor he was in a relationship with a male, beginning in [February] 2015.

    ·The applicant’s previous representative neglected to provide any documentation as to the applicant’s previous relationship.  That previous relationship was a genuine spousal relationship under migration law.

    ·The relationship between the applicant and (former) sponsor was based on mutual interests. It was something different, they were both Lebanese, they came from the same cultures and could relate to the difficulties in being bisexual in a Middle Eastern culture. This relationship helped the applicant cope with his sexuality and made him feel comfortable. The couple’s bond grew stronger as they began residing at the same residence and would provide support to each other both emotionally and financially. They held joint bank accounts and lived in the same residence together (a  attached bank statement  was shown). They were planning a future together. Both the applicant and sponsor would work for most of the day, and the household duties would be shared between the two of them. They were able to be safe in Australia as an openly same-sex couple. Notwithstanding, the relationship between the two ended. The relationship broke down between the applicant and sponsor, as the sponsor wanted a family. The applicant although upset at first, understood where his partner was coming from and did not want to deny his partner an opportunity to establish a family. They ended the relationship civilly and on mutual terms.

    ·In terms of his new relationship, it was initially it was for the applicant to accept. Any breakdown of a relationship is difficult. The applicant was finally happy and comfortable in his relationship with the (previous) sponsor.  During this difficult time, he would seek support from his friends to work out these confusing thoughts.

    ·The applicant during this period met his new partner, the sponsor, through a mutual friend of theirs. Their relationship began as friends. They connected and felt very comfortable together. The applicant felt like he could be completely open with her. He told her about the previous relationship he had with the former sponsor. He confided in her and she provided emotional support for him. They continued to speak to each other and started to see each other more frequently.

    ·After being together for quite some time, the applicant and the sponsor had a real conversation about their future. They both decided they wanted to start a family and spend the rest of their lives together. They made arrangements for the applicant to meet the sponsor’s parents [in] January 2019 to ask her parents for her hand in marriage.

    ·[In] October 2019 the parties had their religious marriage and were formally registered as married to one another.  They reside at the same address and have organised to have their wedding celebration [in] March 2020.

    ·Evidence in the form of photos, wedding certificate, an engagement invitations and bank statements was provided.

    ·There are public interest grounds for deciding in the applicant’s favour.

    ·The applicant has become a business owner. The business is [specialised] in a niche area: [providing specified services]. Australia’s booming construction industry has seen great demand. Availability of the applicant’s particular skillset is quite rare and would be a disservice to the construction industry if he was to depart Australia.

    ·The applicant is currently looking to expand, and wishes to open up his own workshop and hire future employees. The majority of his projects are situated in [specified location], the same area in which he would like to set up his own workshop.

    ·An ASIC extract outlining the business name, ABN, the applicant as the owner and the date of registration was enclosed.

    ·The applicant is planning on investing in a property with his sponsor. A bank statement was attached depicting a transfer of $AUD 40,000.00 from the applicant to the sponsor. The parties intend to purchase a house in [location] so they can be close to the sponsor’s parents. This is both a factor for public interest, and also demonstrates a pooling of resources to a joint future together.

    ·Non-refoulement obligations: The applicant is unable to return to Lebanon due to the fear of harm he holds. He previously applied for a protection visa, which was refused. Due to the application of s 48 of the Migration Act, he is barred from making a further application for a Protection Visa and therefore denied an opportunity to seek asylum. The security and economic situation in Lebanon make it increasingly dangerous for the applicant to return to Lebanon. The civil unrest makes it difficult to support to his partner from abroad due to inability to obtain adequate employment. The applicant fears that if he were to return to Lebanon, he would be either significantly harmed upon return, or he would be placed in a position that he would not be able to provide and support his wife.

    ·The applicant enclosed: a joint bank account statement of previous relationship, [an] energy bill; photos, marriage certificate, sponsor’s bank statement; and an ASIC extract.

16. The applicant’s submission and evidence in the hearing was as follows:

    ·The parties’ relationship has ended, and the sponsor has withdrawn her sponsorship.

    ·The applicant wanted to notify the Tribunal of this and agreed that the prospects of success in the application were low or non-existent.

    ·The applicant requested the Tribunal to make a recommendation to the minister to allow the grant of the visa under ministerial discretion.

    ·Under s. 351, if the minister thinks that it is in the public interest to do so, the minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.  

    ·The applicant said the relationship with his previous partner was a genuine relationship but there was a parting of ways.

    ·The applicant said his current wife, the sponsor, worked and was not financially dependent upon him.

    ·He said that if he left Australia there was a very strong bond between his sponsor and each other and he would be devastated.  When she went to [City in Country 1] for seven days with her family she could not bear to be apart from him.

    ·The written and photographic evidence showed that they were recognised as a couple. The applicant identified persons in the photos. His own family were all in Lebanon.

    ·The applicant first came to Australia in 2010 to [study]. He finished the course and is working in the area.

    ·While studying a business course his father in Lebanon was severely ill with cancer. The applicant went there to visit him. When he returned he could not complete his course so he applied for protection. This was refused ultimately by the Tribunal’s predecessor on 4 August 2014. He appealed this decision to the Federal Circuit Court but later withdrew the appeal.

    ·In 2016 the applicant applied for ministerial intervention, but the minister deemed it inappropriate to intervene.

    ·The applicant then in April 2016 applied for a partner visa with his current spouse, an application which is the subject of this appeal.

    ·Another protection visa application was made in August 2016, which the applicant said he had no detailed knowledge, and it was probably being the work of his previous migration representative. He said he also did not know about the previous ministerial intervention request. This protection application in any event was unsuccessful.  

    ·The applicant said that he had not had any unlawful periods in Australia. He said he still had work rights under his visa.

    ·I asked the applicant why he had lodged the present partner application out of time (i.e. on 14 April 2016, almost two years since his last substantive visa ceased).

    ·The applicant said he met his sponsor in 2014 but they were only friends. The relationship then became serious in 2014 and 2015. I noted that practically no evidence was submitted to the department in support of the application at that time.

    ·The applicant said that he was not familiar with the law and did not know what to do.

    ·In terms of his previous homosexual relationship his family found out about it and this caused problems. They broke up. In Lebanon only the applicant’s mother talks to him as a result.

    ·There was a great deal of stress on each other.

    ·He said that he was a successful business owner. He said his business could not go on if he could not run it by remaining in Australia.  He did not employ people, and worked on his own. It was difficult to obtain staff who would work the kind of hours that were demanded of people in his business.

    ·He had made a transfer of AUD40,000 to buy a property. The parties lived at the sponsor’s parent’s house. Their target was to save for a place. They were looking for a [house].

    ·I asked about the protection application that he had made in 2014 and whether the issues involved still affected him. He spoke of ISIS and terrorist groups. Homosexual relations were forbidden. The economic conditions were getting worse.

    ·He continued about legal and religious issues. He said he did not know how people would react to the fact that he was married to a woman but previously had been with a man. He said that he would fear that he would end up in prison. Having been away in Australia, Shia militants would look at him differently. He said that he had spent his twenties in Australia, his youth. In Tripoli there were forced confessions if you had been a homosexual. You would be put in prison, he said.

    ·He said that he had a loyalty to Australia. He had raised money in a bushfire appeal.

    ·His sponsor and her family knew about his previous homosexual relationship and had accepted it.

    ·His sponsor was currently in [City in Country 1].

17. In a context where the separation is clearly permanent, the Tribunal is not satisfied at the time of this decision that there are compelling reasons for not applying the Schedule 3 criteria which are relevant to the purpose of permitting the applicant to make an application for a spouse visa.

18. The Tribunal finds that even if there is a very strong emotional bond between the parties, the relationship has ended and I do not find that the parties are reliant in such a way that only by pursuing a spousal visa that that bond can continue. These are not compelling circumstances to the Tribunal’s mind.

19. The Tribunal also finds that any dangers or difficulties for the applicant in Lebanon are not connected to the relationship he has with the sponsor. The issue for him it appears is that he will suffer for being in Lebanon, and this would be the case regardless of what visa he is refused in Australia.  Even if the Tribunal were to look more widely, I note that claims of the applicant were rejected in the decision of the predecessor tribunal on 4 August 2014.  That decision raised a number of credibility concerns about the applicant’s claim, that he was kidnapped, approached by an organisation, the accuracy of his documents. It bears on the mind of the Tribunal when considering whether the applicant has been straightforward in his dealings with Tribunal and weighs against him.

20. The Tribunal does not see a connection between the spousal visa and running a business, except that the relationship has come to an end. In and of itself being a worker or having a business, even an important business is not compelling to the Tribunal’s mind for waiving the relevant criteria.

21. Likewise the purchase of home together and family support will not take place as the relationship has ended. Again this is not compelling.

22. One of the purposes of this waiver provision is to recognise hardship that may result if applicants in this position were forced to go offshore and apply for the partner visa. As the relationship has ended this would not occur and it too weighs against finding compelling circumstances.

23. The relationship itself may be or have been genuine but this is not of itself a determinant of matters so powerful as be compelling circumstances.

24. Having looked at both the time of application and the time of this decision, I find that there are not compelling circumstances.

    Certificate under s.375 of the Migration Act / Section 359AA adverse information

25. A certificate made pursuant to s.375 is present in the department’s file. The Tribunal made the applicant aware of the certificate and its contents. This is a ‘dob-in’ style report that the applicant was in breach of student visa conditions in regards to his work, and that the work is part of a larger scheme to mislead the immigration process and its integrity.

26. The Tribunal considers that this certificate was validly made. The applicant did not submit that it was invalid when it was presented to him under the provisions of s.359AA in the hearing. Where relevant, the gist of the information was set out. The response from the applicant was that this was not relevant. The Tribunal finds the claim to be vague and unsubstantiated and the response of the applicant aroused no concerns.  I give the allegation no weight as a result. It is irrelevant to the central issue in this case and plays no role in my decision.

    No referral / recommendation to Minister

27. The Tribunal having considered all matters and has resolved not to refer to the Minister for Home Affairs (the Minister) this matter with a recommendation that, pursuant to section 351 of the Migration Act 1958, the Minister intervene on public interest grounds to grant him a permanent residence visa.

28. 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).

1. I have considered whether alternative criteria in cl.820.211(5) – (9) have enquired of the applicant and established that they are not claimed or met.

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

   DECISION

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

   Justin Meyer
   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.