1731993 (Migration)

[2020] AATA 4270

1731993 (Migration) [2020] AATA 4270 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731993

MEMBER:Margie Bourke

DATE:6 August 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) of Schedule 2 to the Regulations.

Statement made on 06 August 2020 at 3:28pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at time of application – compelling reasons to waive Schedule 3 criteria – previous visa applications – application lodged a short time after substantive visa expired – genuine and longstanding de facto relationship – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 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.

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 the applicant did not meet the Schedule 3 criteria, and the delegate concluded that there were no compelling reasons for waiving the Schedule 3 requirements.

4. I have considered the matters in the Department’s decision record, the information the applicant provided to the Department, and the information the applicant has provided to the tribunal. Based on the information available to the tribunal, I am satisfied I can make a decision favourable to the applicant without proceeding to a hearing, pursuant to s.360(2)(a).

5. The following are the written reasons that the Tribunal has concluded that the matter should be remitted to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

6. 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).

7. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. The applicant wrote a submission to the Department dated 23 July 2017 as to why she was not the holder of a substantive visa when she applied for the partner visa on 14 May 2017. 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

8. 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.

9. The applicant provided the tribunal with a copy of the Department’s decision record dated 11 December 2017, which sets out the relevant dates in the applicant’s migration history. Based on the information in the Department’s decision record, I am satisfied that the applicant was in Australia as the holder of a series of two vocational student visas, from 22 May 2012, and which ceased on 15 March 2017.  The applicant applied for a further student visa on 14 March 2017 which was refused on 12 April 2017.  The applicant lodged the application for the partner visa online on 14 May 2017.  For the purposes of consideration of Schedule 3 criteria, I am satisfied that the applicant last held a substantive visa on 15 March 2017, which was over eight weeks before the application for the application for the visa which is the subject of this review was made. I am satisfied that 15 March 2017 is the relevant day.

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

    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. I have considered that there is no evidence that the applicant was unlawfully in Australia without being the holder of a substantive or bridging visa at any time.  I have considered that the applicant made the application for the visa within two months of cessation of the previous substantive visa. I find that these are relevant and positive considerations in the assessment of compelling circumstances.

14. I accept that the applicant applied for another student visa when she was still the holder of a substantive visa in March 2017, and could have applied for the partner visa at that time, and met the Schedule 3 criteria.  I accept that when the partner visa was made on 14 May 2017 it was supported by evidence provided by the applicant.

15. I have considered that the delegate recorded in the Department’s decision record that the applicant’s immigration history and repeated applications for visas caused the delegate to doubt the credibility of the applicant’s claims in the partner application.  I have noted that the delegate records that the Department granted most of the applicant’s previous applications for visas, and this indicates to me that the Department had assessed the applicant as meeting the criteria in those visa applications, and being a credible applicant in her immigration history.  I do not draw the same conclusion as the delegate that in this matter, the number of previous applications for visas by the applicant is necessarily a negative factor.

16. I have considered the information provided by the applicant to the Department and to the tribunal.  The tribunal received detailed statements of the relationship from the applicant and the sponsor in the form of statutory declarations dated April 2020, four detailed statutory declarations from witnesses signed in April 2020, including from the sponsor’s mother, the applicant’s friend and employer [named], the sponsor’s friend [named], the applicant’s friend [named], and a letter of support from the applicant’s employer [named], and a current medical report dated April 2020.  I have considered the other information provided by the applicant including photographs, the relationship certificate dated 2017, current utility bills, correspondence, bank statements and travel documents.

17. I have considered the information provided to the tribunal in 2020 which is consistent with the information provided to the Department in 2017.  I find the information provided by the applicant supports the credibility of the applicant’s claims that she is in a genuine and longstanding de facto relationship with the sponsor. I am satisfied, based on the information provided that the applicant and sponsor have resided together as de facto partners since December 2015 in the house owned by the sponsor’s brother [named] in [Town 1].

18. I am satisfied that the longevity of the relationship at the time of this decision, coupled in the circumstances of this review with the relatively short time after the applicant’s substantive visa expired before she lodged the partner visa amount to compelling reasons for not applying the Schedule 3 criteria.

19. 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).

20. 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

21. 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) of Schedule 2 to the Regulations.

    Margie Bourke
    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.