1726263 (Migration)

[2020] AATA 5621

1726263 (Migration) [2020] AATA 5621 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726263

MEMBER:Justin Meyer

DATE:19 October 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 (Temporary)) visa:

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

Statement made on 19 October 2020 at 12.47pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner(Temporary)) – no substantive visa at time of application – compelling reasons to waive Schedule 3 criteria – applicant unaware of the possibility of withdrawal of first sponsorship – application lodged a short time after substantive visa expired – joint responsibility for the sponsor’s child – impact of applicant’s prolonged absence on the sponsor’s child and the sponsor – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.221; Schedule 3

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 9 May 2017 on the basis of her relationship with her 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) there were no compelling reasons to waive the Schedule 3 criteria, having considered the totality of the circumstances, including the length and extent of the relationship with the sponsor.

4. The applicant appeared before the Tribunal on 9 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [name] (sponsor), who is the applicant's Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video using Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to 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 video, and confirmed their ability to do so. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

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 Tribunal can be satisfied that there are compelling reasons why the Schedule 3 criteria should be waived.

   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.

    Did the applicant manipulate her circumstances to give rise to compelling reasons?

12. The applicant is [an age] year-old woman of Vietnamese nationality. She came to Australia to study in 2008 and completed a course. She did not study further and returned home in 2011.

13. She came back to Australia in November 2013 on a new student visa.

14. She lodged a partner subclass 820 visa application on 9 August 2016 while still holding a student visa. She withdrew this visa application on 27 April 2017 after her relationship broke up. Her sponsor at the time had withdrawn her sponsorship approximately one month before.

15. On 9 May 2017 she lodged another partner application with her new partner (the refusal of which is under consideration here).

16. I find that the applicant had a valid substantive visa when she submitted her first partner application.

17. The first Sponsor withdrew sponsorship 31 March 2017, 16 days after the validity period of the subclass student 573 visa.

18. This would have meant the applicant had time to file an application for a subclass  820 visa with her new de facto partner, prior to the “Relevant Day” which would be within 28 days after the expiry of the subclass 573 student visa. The “Relevant Day” here is 1 May 2017.

19. The applicant’s second application for this Subclass 820 visa on 9 May 2017 (the second application), eight days out of time.

20. The applicant claimed to have commenced a registerable de facto relationship from October 2016.

21. It was submitted that the first sponsor did not advise the applicant of the possibility of the withdrawal of the sponsorship, causing the Applicant to become unlawful.

22. A deal of discussion occurred in the hearing about the late application for this partner visa and I accept the applicant’s bona fides on this point. I accept her evidence that her former partner went overseas later in 2016 for a trip and met a new partner, abandoning her earlier relationship and ultimately withdrawing the sponsorship. This situation can be confusing to a person and can also have lag times when it comes to documentation.  The applicant was only marginally out of time in her current partner application and I find she did not set out to manipulate the situation.

23. The applicant said that her new sponsor was someone that she had met socially in 2015, but commenced a relationship with her later, in September 2016. It appears that the applicant sought solace in her current partner not long after learning that she had been ‘misled’ as she put it, by her previous partner.

24. The applicant had not been professionally advised until she started her new application with her new partner. It is understandable that in such circumstances that the applicant sought to take stock, and obtain professional advice. It appears that the applicant also was unclear on the exact status of her relationship with her first partner until, or around the time of the withdrawal of sponsorship in late March 2017.

25. The applicant applied for this visa with her new sponsor de facto partner on 9 May 2017, thus was unable to meet the Schedule 3 criteria.

26. Having considered that the applicant has always maintained lawfulness in Australia and the circumstances of the end of her earlier relationship, I do not have concerns about her conduct. While it is a condition to advise the department of material changes in one’s personal situation, I find that the end of a relationship and commencement of another do not always have clearly delineated start and end points, and she did acted reasonably in the circumstances based on what she knew. She did not know until on or around the time of withdrawal of sponsorship that her relationship with her previous sponsor had finally ended, and she was uncertain of the direction of the relationship until that time. She sought solace in her current partner in September 2016, however, bearing in mind that the courts have found that affairs, or dalliances, do not necessarily negate the genuineness of a pre-existing spousal (or de facto) relationships, the Tribunal finds it reasonable that the applicant did not inform the department until the final confirmation of the end of her previous relationship in 2016.       

    Whether these are compelling circumstances

27. The Tribunal has given consideration to the issue of whether the sponsor’s child, [an age] year-old boy, will be negatively impacted if the applicant needs to return overseas. The applicant and the sponsor gave evidence of how they lived together as a de facto same sex couple caring for the sponsor’s child. I make no finding on genuineness of de facto relationship as this is not the basis of review of this decision of the department. However I accept that the applicant has a detailed knowledge of the sponsor’s child and helps around the house.  There was considerable financial household and social evidence submitted about the domestic life of the parties, to which I give some weight.

28. The applicant also submitted a confidential psychological report from [Doctor A], a registered clinical psychologist, dated 14^th March 2020. This report was prepared for the purposes of the review, regarding the dependence of the sponsor and her son on the applicant. The sponsor had a previous marriage to a male with severe mental [illness]. This had a devastating effect upon the sponsor and her son. The sponsor suffered abuse during her previous relationship, the report found. Her son has scarred by the experience. The report went on to find that the parties shared a domestic life together and the applicant developed a warm relationship with her sponsor’s son. The report went on to state that the sponsor suffered from adjustment disorder and depressed mood, which was lessened by the family and personal relationship which was now in. [Doctor A] went on to add that the departure of the applicant for a long period would have a debilitating effect on the sponsor and her son. I give this report regard.

29. The psychological report is consistent with the information presented in the hearing and the Tribunal having questioned both parties found that there was corroboration of the account.

30. I fid that the parries both work and they were able to describe their employment and provided their joint bank account details (indicating their salaries). I accept that they tend to work in shifts and cover for childcare when the other is at work

31. The sponsor gave straightforward evidence that corroborated the applicant’s. In particular she had to work, she said, and although she was deeply involved in her son’s upbringing, she said that it would be difficult to raise her alone if her had to depart Australia for a prolonged period. Given that waiting times for offshore partner visas might easily take 12 months to process the Tribunal gives this matter weight. The parties do not have many friends or relatives that can assist, and have modest incomes. The rent a [home].

32. Information was submitted on issues facing LGBT individuals in Vietnam, particularly articles and a report on how being gay is treated as a disease in some quarters in Vietnam, and the various forms of discrimination that occur. The Tribunal for these purposes makes no finding on how this would affect the parties should the applicant be forced to return to Vietnam for a period in order to pursue and offshore visa application. The applicant’s prolonged absence would negatively act the sponsor’s child and the psychological health of the sponsor, which satisfies me sufficiently that there are compelling circumstances in this case. 

33. The parties provided a variety of information, including photographs of the parties with others and their child. Joint bank details reveal an active account and the applicant identified joint spending.

34. I am led to conclude that the circumstances in this case are compelling. The parties take the bringing up of the sponsor’s child with interest and he is at an age vital in children’s development. Taking him offshore might disadvantage him. He may not have access to education, or the level of educational care needed to reintegrate him into Australia if and when he returns. The applicant has been away from Vietnam for years and would have hurdles in finding work and accommodation. This level of stress might impact on the child.

35. I do not consider the applicant’s actions to have formed part of a wider scheme to manipulate visa applications of herself or others. Thus the compelling circumstances weigh this matter in the applicant’s favour. I find that if the ‘waiver’ to Schedule 3 criteria is not applied, the sponsor and her child might suffer emotional and physical hardship and stress, and that such hardship would be undesirable. Accordingly, I am satisfied that the support the applicant provides to this child and the psychological stress that would be placed on the sponsor and her child if he had to go offshore for a period of months or years in order to apply for a visa warrants not applying the relevant criteria. Separation from the child and/or partner would be highly problematic for the parties and for a young, impressionable Australian citizen child.

36. These family obligations and circumstances are compelling reasons not to apply the schedule 3 criteria. They are powerful circumstances.

37. The Tribunal is satisfied that her situation constitutes compelling reasons for waiving the Schedule 3 criteria and that there are forceful reasons why the applicant should be enabled to lodge a Partner visa onshore.

    Section 376 certificate

38. There is a non-disclosure certificate on the department file which gives the Tribunal discretion to disclose certain information. The certificate although valid (protecting the identity of a person or persons coming forward with information) is about an anonymous dob-in style claim which is unsupported by any fact. It is also undetailed and written in an intemperate and less credible fashion about the sponsor. Its content is also contradicted by facts established by the Tribunal. I give the content therein no weight and exercise my discretion not to put it to the applicant.

39. 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).

40. 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

41. 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.

    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.