1716120 (Migration)

[2019] AATA 1570

1716120 (Migration) [2019] AATA 1570 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716120

MEMBER:Hugh Sanderson

DATE:8 March 2019

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 08 March 2019 at 9:36am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – applicant did not hold a substantive visa at time of application – applicant did not satisfy criterion 3001 ­– parties’ relationship ended – Australian citizen child – best interests of the child – compelling reason for not applying the Schedule 3 criteria – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, Schedule 3, 3001, 3003, 3004

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 1 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because at the time of the application the applicant did not hold a substantive visa 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 Ghana and is currently [age] years old. His mother [and siblings] continue to live in Ghana. He was previously married and divorced his wife in 2015. There were no children of that relationship.

5. The applicant first entered Australia [in] October 2015 on a subclass 600 Visitor visa. This visa expired on 27 January 2016. He has not held a substantive visa since that date. He applied for another visa which was deemed invalid by the Department. He appealed that decision to the Federal Court, however, withdrew that application on 1 February 2017.

6. The sponsor of the applicant was [Ms A]. She was born in Indonesia and is an Indonesian citizen. She was granted a [permanent] visa in 2012 and now has the right to reside permanently in Australia.

7. The parties claim they met each other through an online dating site in mid-2016. They met in person for the first time on 20 August 2016. In November 2016 the applicant proposed marriage to the sponsor and she agreed. They were married on 20 January 2017. Statements were provided by witnesses and the parties claiming they were in a genuine relationship.

8. The Department noted that as the applicant did not hold a substantive visa and as he had not done so since 27 January 2016 he did not satisfy criterion 3001 of the Schedule 3 criteria. The applicant was invited to provide compelling reasons for not applying those criteria. Statements were provided claiming that they were in a genuine relationship and they were growing more and more in love with each other each day. They claimed that they were trying to have babies together.

9. The delegate who considered the application noted the following issues:

   ·The parties only married in January 2017 and had not been in a long-standing relationship;

   ·The fact that the parties were claiming they wanted have children did not provide any compelling reason for not applying the Schedule 3 criteria;

   ·All couples who are required to file an offshore Partner visa applications face some emotional and financial difficulties and the circumstances of the applicant and the sponsor were no different to those applicants;

   ·The applicant previously lodged another visa application, however, no claims had been made in this application that he could not return to Ghana to lodge an offshore application; and

   ·The applicant appears to have contrived to commence a relationship when he was on a Bridging visa with no right to remain permanently in Australia.

10. Taking these matters into account, the delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria. 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 provided a statutory declaration stating that he and the sponsor were no longer in a relationship and had separated in November 2018. It was stated the parties had a child together, [who] was born on [date]. A copy of [the child]’s birth certificate was provided. The applicant claimed to be seeing his [child] three to four times a week. There were no Family Law orders.

12. The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the former sponsor. The applicant was represented in relation to the review by his registered migration agent.

13. The applicant confirmed that his relationship with the sponsor had come to an end. He said they separated in November 2018 and he had been living with a friend [since] then. He was working as an [Occupation 1]. The sponsor was continuing to work as an [Occupation 2]. The child was put in day care from Monday to Friday and the applicant was seeing the child weekends as well as visiting him at day care. There were no court orders for the applicant’s contact with his child and it was just by agreement with the former sponsor.

14. The former sponsor gave details of her current situation and the contact the applicant was having with their child. She said that despite her relationship with the applicant ending, she wanted the applicant to stay in Australia so that he could continue his relationship with their child. She believed that it was important for their child that the applicant be present so that he can assist in the child’s development and be present for him.

15. DNA testing to establish paternity of the sponsor’s child was carried out. This report, dated 7 March 2019, found that the applicant was not excluded from identification as the biological father of [the child] with the relative chance of paternity being almost 100%.

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether if 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?

18. 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).

19. 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

20. 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 the circumstances of the applicant, the relevant day is the last day he held a substantive visa.

21. The the last substantive visa of the applicant was the subclass 600 Visitor visa which expired on 27 January 2016. This is more than a year prior to the filing of the current application.

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

    Compelling reasons

23. 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.

24. 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.

25. The parties’ relationship ended in November 2018. Despite this, the sponsor remains supportive of the applicant attending the hearing to give evidence in support of the application. Her main concern is that she wants the applicant to continue to have a continuing and important role in their child’s life. As their relationship is at an end she would not be in a position to sponsor him for any Partner visa if the applicant were now required to file an offshore visa application.

26. The applicant continues to be involved in his child’s life and it is clear that he is the major male role model for [the child]. The Tribunal accepts that it is important for a child to be able to maintain a close and beneficial relationship with both their mother and father, particularly when both mother and father are able to cooperate with each other and both mother and father are willing to provide the necessary care and support to their child. This is particularly so in the first few years of the child’s life. As the sponsor does not have any close family members who are resident in Australia and that she works full-time, it will be important for the welfare of [the child] that the applicant live up to his responsibilities as[the child]’s father.

27. Although it does not appear the applicant is making any financial contribution towards the support of [his child], this, in part, appears to be due to the fact that the sponsor has not taken any active steps to require him to do so. The sponsor has the opportunity to register with the Child Support Agency so that an independent body can assess and collect the appropriate contribution by the applicant to the financial support of his child. This approach may be preferable than the applicant and the sponsor negotiated between themselves as to the financial contribution the applicant should make towards the support of his child. It would certainly be in the interests of [the child] that the applicant immediately and voluntarily makes appropriate financial contribution to the sponsor for[the child]’s financial support.

28. The applicant has made a number of claims of what he considers compelling reasons for not applying the Schedule 3 criteria. The Tribunal agrees with the assessment made by the delegate in the Department’s decision. The only issue that the Tribunal considers could be a compelling reason for not applying the Schedule 3 criteria is the fact that the parties have now had a child together. As indicated above, although the parties are separated, the applicant continues to have a role in the child’s life which is beneficial for the child. The Tribunal accepts that it would not be in the interests of the child if he were to be separated from his father for any extended period. The parties are no longer relationship if the applicant were required to file an offshore application, he would not be able to be sponsored by the mother of his child as they are no longer in spousal relationship. It is likely, therefore, that any separation would be permanent or certainly for an extended period.

29. The Tribunal finds that the fact that the applicant has an Australian citizen child who would suffer significant hardship if he were separated from his father provides a compelling reason for not applying the Schedule 3 criteria.

30. 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).

31. 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

32. 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.

    Hugh Sanderson
    Member