1715261 (Migration)

[2018] AATA 5228

1715261 (Migration) [2018] AATA 5228 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715261

MEMBER:Hugh Sanderson

DATE:13 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2018 at 2:47pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at the time of application – seven years unlawful stay – employment without work rights – compelling reasons for not applying Schedule 3 criteria – mortgage – sponsor unemployed – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 378
Migration Regulations 1994, Schedule 2, cls 820.211, Schedule 3 criterion 3001

CASES

Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
SZOXP v MIBP [2015] FCAFC 69
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 of a delegate of the Minister for Immigration on 5 July 2017 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 20 March 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.

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 delegate found that the applicant did not hold a substantive visa at the time of the application and did not satisfy criterion 3001 of the Schedule 3 criteria. Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.

   Background

4. The applicant is a citizen of Malaysia and is currently [age] years old. His parents [and siblings] continue to live in Malaysia. He was previously married to [previous wife’s name] who he divorced in Australia in a joint application [in] March 2015. There are no children of that relationship.

5. The applicant entered Australia [in] September 2008 holding a [temporary] visa. This visa expired [in] December 2008. The applicant has not held a substantive visa since that time. The applicant remained in Australia as an unlawful non-citizen after his visa expired. The applicant applied for a Protection visa on 7 May 2015. This application was refused by the Department and that decision was affirmed on review by the Tribunal (differently constituted). An appeal by the applicant against the decision of the Tribunal was discontinued by the applicant [in] April 2017.

6. The sponsor of the applicant is [Ms A]. She was born in [Country 1] and is currently [age] years old. She was granted a [temporary partner] visa based on her relationship with her then husband, [named], [in] March 2012. She was granted a [permanent] Partner [visa] [in] June 2014. She became an Australian citizen [in] January 2017. Although she did not have any children from her relationship with [her then husband], she has a child from a former relationship who resides in Australia, [named], who is currently [age] years old.

7. The parties claimed that they first met each other on 15 April 2012 when they were working at the same factory. When the sponsor moved to [a named town] in about May 2013 they continued to keep in touch with each other via email. It was claimed that the sponsor separated from [her first husband] just after she was granted the [permanent partner] visa in June 2014 and in August 2014 the applicant started living with the sponsor and her child. The parties married each other [in] February 2017.

8. Various documents were provided by the applicant in support of the claim that he and the sponsor were in a genuine relationship. This included statements by friends of the parties, bank details and a joint tenancy agreement. Evidence was provided that the sponsor was undergoing IVF treatment in February 2017.

9. The delegate who considered the application noted the applicant did not hold a substantive visa at the time of the application. The delegate found that the applicant did not meet criterion 3001 of the Schedule 3 criteria and considered the compelling reasons provided by the applicant for not applying those criteria. The delegate noted the following:

   ·The applicant had remained in Australia as an unlawful non-citizen for an extended period of time;

   ·The Protection visa application of the applicant had been fully assessed by the Department and the Tribunal and found to be without merit;

   ·In the statement provided by the applicant, it was claimed by the parties that they intended to return to [Country 1] and Malaysia periodically to visit their families which was inconsistent with the claim by the applicant that he feared returning to Malaysia for any reason;

   ·Although the sponsor may have been undergoing IVF treatment, there is no evidence that there is a child of the relationship;

   ·The child of the sponsor was [age] years old (at the time of the Department’s decision) and would be unlikely to suffer any significant emotional hardship from any temporary separation from the applicant;

   ·There was no evidence that the sponsor could not support herself financially as she has done so in the past;

   ·The applicant and the sponsor entered into the relationship while the applicant was an unlawful non-citizen and they were aware that he had no right to remain in Australia; and

   ·The applicant appears to have manipulated his immigration status within Australia and ignored Australia’s immigration laws to be able to remain in Australia without any valid reason.

10. Taking into account these matters, the delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. Accordingly, the delegate found the applicant did not meet the criteria in cl.820.211(2)(d)(ii) and refused the application.

    Information to the Tribunal

11. The applicant appeared before the Tribunal on 12 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and her son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicant explained that they had recently received a letter from the police advising them that they had been the victims of a scam whereby they had provided about $13,000 they had saved to a fraudster. He said that this was relevant as he could not return to Malaysia as they had lost that money.

13. The applicant said that he was currently working as [an occupation 1]. After arriving in Australia in 2008 he worked [as an occupation 2]. He said that he did not have any work rights and was aware that he was working unlawfully in Australia. He provided details of his family in Malaysia. He said that his [siblings] lived with his parents who are retired. He said [siblings] are currently employed. He did not indicate that any members of his family had any problems living in Malaysia.

14. The Tribunal referred to the information which indicated the sponsor was receiving IVF treatment. The applicant said they only tried once and stopped after that.

15. The applicant said that the sponsor stopped working in January 2017. He said that she hurt her hand and the company she worked for would not let her have a day off and so she resigned. She was told that she could claim on WorkCover, but believed that if she made a claim she would not be able to get any sick leave after that. He said that for personal reasons she decided to resign from her job. He said that she did not receive any Social Security benefits. He said that she had been trying to find work, but was unsuccessful.

16. The applicant provided details of the sponsor’s son. He said that he had recently finished [school level] and was hoping to attend university in [City 1] doing either [of two subjects]. He was not sure what contact the sponsor’s son had with his biological father.

17. The applicant said that the sponsor bought the home in which they currently live for $[amount] in December 2016. He was not sure how much the outstanding mortgage was but said that he was paying the mortgage at $[amount] per week.

18. The Tribunal invited the applicant to provide any compelling reason for not applying the Schedule 3 criteria. He said the compelling reason was their financial situation. He said that they cannot find a solution to having to pay all their debts.

19. The sponsor gave evidence in support of the application. She provided details of her contact with the applicant’s family in Malaysia and her son’s activities. She said that she stopped working in January 2017 and has not worked since then. She said that she resigned because she had a problem with her hand, but has not sought any further treatment for any injury to her hand since then. She said the last time she applied for a job was in 2017.

20. The sponsor’s son said that he had finished [school level] and was hoping to attend university at [City 1]. He said that he speaks to his biological father every two or three months when he calls. He said that he spent only about 10 minutes with his father when he last travelled to [Country 1] in 2015. He claimed that he was financially dependent upon the applicant.

21. The applicant said the compelling reason for not applying the Schedule 3 criteria was that if he got a job in Malaysia it would still not be enough to pay all the debts and expenses he and the applicant have in Australia. He said the cost of applying for the visa would be a lot and they would not be able to pay for it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant meets the Schedule 3 criteria and, if he does not, if there are compelling reasons for not applying those criteria.

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

24. 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).

25. 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.

    Criterion 3001

26. 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). In respect of the application of the applicant, the relevant day is the last day the applicant held a substantive visa.

27. The applicant’s last substantive visa expired [in] December 2008. This is more than eight years prior to the current visa application being filed.

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

    Compelling reasons

29. 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.

30. 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.

31. The applicant’s immigration history is poor. As is set out in the Department’s decision, a copy of which the applicant provided to the Tribunal, after arriving in Australia claiming to be a tourist in 2008 he remained in Australia as an unlawful non-citizen. The applicant claimed that he was working over this period as [an occupation 2], knowing that he had no right to work in Australia. Seven years after arriving in Australia he applied for a Protection visa. This application was refused by the Department and that decision was affirmed on review by the Tribunal.

32. The Tribunal finds that the applicant has deliberately manipulated his circumstances to be able to remain in Australia for no valid reason. He has failed to engage with the Department to regularise his immigration status for the period from when his substantive visa expired to his filing of the Protection visa, a period of seven years. He has ignored Australia’s immigration laws by remaining within Australia without a valid visa and working unlawfully.

33. The Tribunal is not satisfied that the circumstances in which the applicant did not hold a substantive visa provide a compelling reason for not applying the Schedule 3 criteria.

34. The applicant applied for a Protection visa. This application was refused by the Department and that decision is affirmed by the Tribunal on review. An appeal against that decision by the applicant to the Federal Circuit Court was discontinued. No information has been provided by the applicant in the current proceedings which would indicate that the applicant has any genuine concern about returning to live in Malaysia. His parents and [siblings] continue to live in Malaysia. There is no information which would indicate that they face any difficulties in Malaysia or that any claims the applicant has made of any threat to his or his family’s safety are valid. In a statement the applicant provided to the Department he claimed that he and the sponsor wish to return “to [Country 1] and Malaysia periodically to visit with our families”. This indicates that the applicant has no concerns about returning to Malaysia for any reason. There is no information before the Tribunal that if the applicant were to return to Malaysia that he would not be able to get the support of his family or would have any difficulties returning there.

35. The only concern the applicant expressed to the Tribunal as to his return to Malaysia would be that he would be unlikely to earn a significant income to be able to financially support the sponsor in Australia. He did not repeat any of the claims that he had made previously when he filed his Protection visa application. The fact that he did not indicate that he faced any continuing persecution in Malaysia indicates that the claims that he made previously are not valid and his application for the Protection visa is an example of the applicant manipulating Australia’s immigration laws and processes to remain in Australia for no valid reason.

36. The applicant has shown himself a resourceful individual, being able to obtain employment in Australia despite not having any work rights and remaining in Australia as an unlawful non-citizen for several years without being located. There is nothing to indicate that the applicant would not be able to obtain employment if he were required to return to Malaysia to file an offshore Partner visa application. The Tribunal is not satisfied that any of the circumstances the applicant would face if he were required to return to Malaysia to file an offshore Partner visa application provide a compelling reason for not applying the Schedule 3 criteria.

37. The Tribunal has not made any critical assessment of whether, at the time of the application or at the time of this decision, the parties were in and continued to be in a genuine, continuing and exclusive relationship. The Tribunal has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that claimed relationship for the purposes of this decision.

38. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship. The Tribunal has considered all the aspects of the relationship, including the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed when considering if there are compelling reasons for not applying the Schedule 3 criteria.

39. It is claimed that the parties are in a long-standing relationship and this provides a compelling reason for not applying the Schedule 3 criteria. This submission relies upon, in part, the Explanatory Statement. The Explanatory Statement, providing examples of compelling reasons, states:

    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).

40. The Tribunal is required to apply the legislation which states that it must be satisfied there are compelling reasons for not applying the Schedule 3 criteria. As is stated in SZOXP v MIBP [2015] FCAFC 69 at paragraph 17;

    Context, such as legislative history or extrinsic materials, is a guide to the meaning of the statute but it “cannot displace the meaning of the statutory text” and it is the meaning of the statutory text which is where the task of statutory construction begins and ends: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2013) 250 CLR 503, 519.

41. The Explanatory Statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties have upon each other and all other relevant factors must be considered. As is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.

42. Evidence was provided that in February 2017 the parties were having IVF treatment to try to conceive a child. No child was able to be conceived and the evidence of the applicant was that since then the parties have not undertaken any further IVF treatment. They do not have a child together. The Tribunal is not satisfied that any fertility issues or attempts by the sponsor to fall pregnant to the applicant at any time provide a compelling reason for not applying the Schedule 3 criteria.

1. The sponsor ceased work in January 2017 and has not worked since that. The circumstances of the sponsor ceasing work are confused. She claimed that she suffered an injury to her hand at work and her employer did not allow her any time off work. She claims that she was told about her right to make a claim under WorkCover, however, did not do so. The applicant said she resigned from her job for personal reasons.  The sponsor claimed that she last sought paid employment in 2017.

2. There is little medical evidence which would indicate the sponsor is unable to work. The only medical certificate provided is dated [in] January 2017 and states that she is receiving medical treatment and is not able to work on that day. There is nothing to indicate that the sponsor has any continuing incapacity which would prevent her from working. No information has been provided of any application the sponsor may have made for any Social Security benefits or if she would be entitled to any benefits. There is no information that she has any continuing disability.

3. Little financial information has been provided as to the applicant’s and the sponsor’s financial position. The only bank statement provided is the joint bank account of the parties, however, both parties have accounts in their sole name and details in respect of these accounts have not been provided. It is into the bank account the applicant has in his sole name that his wages are paid.

4. The sponsor purchased a home in late 2016, shortly before the application was filed. The house was purchased for $[amount] with a mortgage of about $[amount] obtained. Neither the applicant nor the sponsor was able to provide any clear details as to the current amount outstanding on the mortgage. The only information provided by the applicant was that he currently pays the mortgage of $[amount] per week. Even if the sponsor was in receipt of a Newstart allowance, the payment of this amount would not cause any immediate financial distress.

5. Although not currently working, the Tribunal does not accept that the sponsor is incapacitated for work or that she would not be able to find appropriate employment if required. If such employment is not able to be obtained by the sponsor then she would be entitled to the payment of appropriate Social Security benefits to ensure that she met all her basic costs. The sponsor’s son would also be able to access any appropriate financial assistance through the government.

6. The parties appear to have been the victims of an online scam into which they invested $13,000. No clear information has been provided to explain how it was they had $13,000 to invest with a person the sponsor met on [social media]. The fact that the parties had $13,000 to invest indicates that they are able to accumulate savings in excess of their day-to-day necessary expenses.

7. The parties claimed that they started their relationship in August 2014. There is little information to support this claim apart from the parties opening a joint bank account at that time. The sponsor and his son returned to [Country 1] for about a month in September 2015. This indicates the sponsor has no difficulty in being apart from the applicant for extended periods. In his statement provided to the Department, the applicant claims that they have lots of friends in Australia, indicating that if the applicant and the sponsor separated for any extended period while any offshore Partner visa application was assessed, she would receive emotional support from them. There is nothing to indicate that the parties have any greater emotional dependency upon each other than any other couple in a genuine relationship.

8. The sponsor’s son has finished [school level] and is planning to attend university [later]. Apart from claims that he considers the applicant his father and an important part of the family, there is nothing to indicate that the sponsor’s son has at any time been so dependent upon the applicant that this would provide a compelling reason for not applying the Schedule 3 criteria. The sponsor’s son has a continuing relationship with his biological father and has managed to complete [school level] with plans to attend university in the region he currently lives with his mother. The Tribunal is not satisfied that any of the circumstances of the sponsor’s son or any claimed relationship he has with the applicant would provide a compelling reason for not applying the Schedule 3 criteria.

9. The applicant claimed that if he were required to return to Malaysia to file an offshore Partner visa application this would impose significant financial burden on him which he would not be able to meet. As indicated above, the applicant has not provided clear details of his financial situation including details of any savings he has or any other assets. Any couple who is required to file an offshore Partner visa application faces some financial hardship due to living in separate households. The Tribunal does not accept that the circumstances of the applicant and the sponsor would be any different to any other couple who were required to file an offshore Partner visa application. The Tribunal is not satisfied that the financial circumstances of the applicant and the sponsor provide a compelling reason for not applying the Schedule 3 criteria.

10. The Tribunal has assessed the circumstances of the applicant and the sponsor both individually and cumulatively. As set out above, the Tribunal is not satisfied that the individual circumstances of the parties and in particular the claims made by the parties when considered on an individual basis provide a compelling reason for not applying the Schedule 3 criteria. The Tribunal is not satisfied that when considered in combination the total circumstances of the parties provide a compelling reason for not applying the Schedule 3 criteria.

11. 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). There is nothing before the Tribunal to indicate the applicant would meet any of the alternate criteria in cl.820.211.

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

    DECISION

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

    Hugh Sanderson
    Member