1720152 (Migration)

[2020] AATA 5618

1720152 (Migration) [2020] AATA 5618 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720152

MEMBER:Stephen Conwell

DATE:4 September 2020

PLACE OF DECISION:  Melbourne

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 04 September 2020 at 5:47pm    

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – visa history – claims to have been unaware of unlawful status – long and genuine relationship and valid marriage not in themselves compelling reasons – relationship with and care of sponsor’s children – honest and credible oral evidence – decision under review remitted

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

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 on 14 August 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 18 April 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) because the delegate found that the applicant did not hold a substantive visa at the time of the application and did not satisfy Public Interest Criterion (PIC) 3001 of Schedule 3. As a consequence the delegate  was not required to consider criteria 3003 and 3004.  Further, the delegate was not satisfied there were compelling reasons for not applying those criteria.

4. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The applicant participated in the telephone hearing on 3 September 2020 to give evidence and present arguments.  The Tribunal also received oral evidence from the sponsor by telephone. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and regard to the delay of the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   8.The issue in the present case is whether the applicant satisfies 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?

   9.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).

   10.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

   11.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.

8. The delegate’s decision outlines the applicant’s visa history as follows:

   ·the applicant arrived in Australia [in] October 2007 on a [student] visa. Upon expiry of that visa he was granted a further [visa] which expired on 30 August 2011;

   ·he lodged [another] visa application as a dependent spouse on 09/09/2009, which application was refused by the Department of Immigration and Border Protection (Department) on 20 July 2010;

   ·he then lodged a [Permanent] visa application on 29 April 2011, which application was declared to be invalid on 5 August 2011;

   ·he remained in Australia for a period of time as an unlawful non-citizen until he was granted another Bridging visa E on 21 March /2017. Whilst he was an unlawful non-citizen he married his sponsor [in] September 2014;

   ·on 28 March 2017 he lodged a combined partner subclass UK820/BS801 visa application, which application was declared to be invalid on 03 April 2017;

   ·shortly thereafter, on 18 April 2017 he lodged another combined partner subclass UK820/BS801 visa application which is the subject of this review.

9. Departmental records show that the applicant last held a substantive visa on 30 August 2011, being the relevant day.  This Partner visa application was lodged on 18 April 2017.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

10. To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 criteria, that being criteria 3001, 3003 and 3004.

    Compelling reasons

11. 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.

12. 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.

13. The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant’s circumstances as a whole are to be taken into account.

14. The Tribunal has regard to PAM3, (revised from 1 July 2014) in relation to "compelling circumstances" under cl.820.211(2)(ii) and notes the  focus there is on the conduct of the visa applicant.

15. The Tribunal also notes that the provisions are not intended to facilitate persons who fail to comply with their visa conditions, deliberately manipulate their circumstances to give rise to compelling reasons or can leave Australia and apply for a Partner visa outside Australia. The Tribunal  gave careful consideration to whether the applicant’s immigration history indicated a manipulation of his circumstances. At the same time however, the Tribunal  takes into consideration Bromberg J in MZYPZ at [12], which states that  "[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred".

16. At the hearing the Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria. 

17. As discussed with the applicant at the hearing, the focus of the original decision maker was whether there were compelling reasons to waive the Schedule 3 criteria and no formal assessment was undertaken to determine whether the applicant was the spouse or de facto partner of the sponsor at the time the application was lodged. Accordingly, the Tribunal has also refrained from formally considering this issue.

18. Prior to the hearing the applicant provided documentation which included but was not limited to:

    ·written submissions made by the applicant and the sponsor’s eldest child;

    ·a 2017 affidavit by the applicant’s father purporting to debar the applicant from his father’s property;

    ·several utilities invoices and a bank letter addressed to both the applicant and sponsor;

    ·confidential addendum court report dated 13 May 2013 prepared by the Dept. of Human Services (DHS);

    ·minutes of Family Court Orders pertaining to the care of the sponsor’s children;

    ·several photos of the parties and the sponsor’s children.

    The applicant’s evidence

19. In the applicant’s written submission he said he met the sponsor in 2010 and not long after, they embarked upon a relationship. The applicant’s family was not accepting of the relationship and “disowned” the applicant, with his father going so far as deposing an affidavit to that effect. When his last substantive visa was expiring the applicant applied for a [Permanent] visa through a migration agent (details provided to the Tribunal). When the migration agent ‘disappeared’, the applicant contacted the Department directly and was advised that his [Permanent] visa application had been lodged and he would be advised of the progress of its consideration.

20. The applicant’s [Permanent] visa application was rejected by the Department on 5 August 2011, however he claims not to have been notified of this until he sought temporary registration with Medicare in early 2016, some five years later. The applicant agrees that he had remained in Australia unlawfully for a period, however he claims that he was unaware of his unlawful status as the Department had failed to inform him of the outcome of his [Permanent] visa application.

21. At the hearing the applicant repeated his claims that he remained an unlawful resident in Australia because over a period of five years he had not been advised by the Department of the progress or outcome of his [Permanent] visa application. This in turn was the reason he had not lodged his Partner visa application within 28 days of his last substantive visa expiring.

22. The applicant stated that he is the main income earner in the family, although he lost his last job due to the COVID-19 pandemic. Whilst in Australia he has worked in several part-time and full-time jobs, as [an Occupation 1] and other general trade-related roles. The sponsor does not work, staying at home to look after the family’s needs. She receives welfare payments on the basis of her [children’s] mental health conditions. Her welfare payments are adjusted to take into account the applicant’s income, when he is in employment.

23. As for his relationship with his family in India, the applicant stated that he continues to speak to his mother and sister, however he is resigned to the fact that he has not spoken to his father in many years.

24. When asked if he and the sponsor had discussed their future should the Tribunal not find in his favour, the applicant responded that the sponsor and her [children] would want to follow him to India should he required to depart Australia. He would be prepared to sell his car in order to finance the cost of the family’s travel to India.

    The sponsor’s evidence

25. In her oral evidence the sponsor offered the following comments and submissions:

    ·since beginning their relationship began in 2010 the couple have remained together;

    ·their marriage in 2014 has solidified their relationship and the sponsor’s two [children]  have established a close ‘male mentor’ relationship with the applicant;

    ·both her [children] have had troubled (and in the case of her eldest [child], traumatic) experiences before the applicant entered their lives. Both her [children] require ongoing medication – her eldest [child] having been diagnosed with [a medical condition] and her younger [child] with [another medical condition]

    ·when addressing the concerns expressed in the 2013 DHS report the sponsor confidently stated that both [children’s] welfare, mental health and behaviour patterns have improved significantly since that time because of the love and stability that the applicant brings  to their family unit;

    ·she confirmed that and she and her [children] would want to follow the applicant should his visa application be denied and he is required to depart Australia.

    The sponsor’s [child]’s evidence

26. In his written submission from 2017 the sponsor’s eldest [child] ([A]) writes as a then [Age] year old on behalf of [her/himself] and [her/his] younger [sibling].  [She/He] states that the applicant came into their lives at a time of family trouble.  Although he is their step-dad but they see him as their dad. He has become an important part of their lives and he “completes their family”.  He makes the sponsor very happy and together they share the care and responsibility of caring for the two [children]. He concludes, “He [the applicant] means a lot to us and we love him a lot.”

27. The evidence before the Tribunal included a confidential addendum court report dated 13 May 2013 prepared by DHS. The report expresses the authorities’ concerns regarding the education and welfare of the sponsor’s two children. The report acknowledges the relationship between the parties and recommends that the children remain in the joint care of the applicant and sponsor whilst they engage with the various health and welfare services made available to the children.

28. In relation to the sponsor’s cognitive abilities the DHS report expresses concern for her  capacity to provide adequate care and parental oversight to her [children], particularly in light of the evidence of [trauma] experienced by her eldest [child]. The Tribunal accepts that the applicant’s joint parenting of the children assists the sponsor in meeting her parental responsibilities and significantly improves the children’s physical and mental well-being.

    The applicant’s unlawfulness

29. The Tribunal views with grave concern the applicant’s unlawful presence in Australia for more than five years.  The Tribunal has regard to the Department’s policy, however in making  this decision, the Tribunal places less weight on this unlawfulness in light of the evidence that the sponsor’s children have great need for emotional and psychological support and care and the applicant plays an important role in meeting these needs.

30. Whilst the Tribunal does have concerns regarding the applicant’s earlier immigration history and does not accept his explanation for remaining unlawful in Australia for more than five years, in relying upon Waensila, it places greater weight on the applicant’s circumstances of recent years during which time his presence in the sponsor’s family unit has taken on greater beneficial significance.

31. The Tribunal notes that the parties submitted no up-to-date evidence in support of this review. The written submissions date from 2017.  The Tribunal draws no adverse inference from this; it acknowledges that due to their financial constraints the parties are unrepresented before the Tribunal. In these circumstances the Tribunal placed great weight on the credibility and veracity of the parties’ oral evidence. The Tribunal found both parties to be honest and credible witnesses.

32. The Tribunal has considered the factors relevant to the case including those raised by the applicant and the sponsor. The Tribunal acknowledges the length of the relationship.  While the Tribunal accepts, for the purposes of this review, that the applicant and the sponsor are in a genuine relationship, this is a basic requirement for a Partner visa application and the parties have failed to further satisfy the Tribunal that the existence and longevity of their relationship is a sufficiently compelling reason to not apply the Schedule 3 criteria.

33. The applicant’s primary compelling reason for waiving the requirement to meet the Schedule 3 criteria in this case is the emotional, parental and practical support he provides to the sponsor and her two children.  The Tribunal accepts that the applicant plays a positive role in the lives of the sponsor and her [children] and accepts that they would clearly prefer the applicant to continue to remain onshore and be a part of their family. The Tribunal is satisfied that the sponsor and her [children] are substantially reliant on the applicant for emotional and psychological stability and that the applicant gives them a level of care and support both emotionally and physically which has assisted the three of them to cope with the trauma of past experiences and the ongoing challenges of the children’s behavioural and learning difficulties.

34. Having regard to the sibling’s learning difficulties, behavioural issues and earlier episodes of significant trauma, the Tribunal finds these factors to be sufficiently compelling reasons for it to waive the Schedule 3 criteria.  Upon considering the parties’ circumstances and all the evidence before it, the Tribunal is satisfied that the evidence is sufficiently persuasive to establish that the sponsor or her children would experience hardship, mental stress and anguish if the applicant were required to depart Australia in order to lodge his visa application from offshore. Whilst the sponsor claims that she and her [children] would follow the applicant to India, the Tribunal finds this sentiment to be well-intentioned but impractical given the sponsor’s straitened circumstances and the medical needs of her children. The Tribunal considers that these factors are compelling reasons to waive the Schedule 3 criteria.

    Conclusion

35. Considering the circumstances as a whole, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

36. 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

37. 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 (Temporary)) visa:

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

    Stephen Conwell
    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.