1805730 (Migration)

Case [2020] AATA 2957

1805730 (Migration) [2020] AATA 2957 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805730

MEMBER:Mireya Hyland

DATE:24 June 2020

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) of Schedule 2 to the Regulations.

Statement made on 24 June 2020 at 1:37pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remitted – application made more than 28 days after last substantive visa held – compelling reasons for granting visa – migration and visa application history – bridging visas granted pending protection then partner visa applications – lawful visa status at all times – timeline through department, first tribunal, court and current tribunal – extreme delays because of increasing numbers of applications – natural justice in timely administrative decision making – COIVD-19 travel restrictions – decision under review remitted

LEGISLATION            
Migration Act 1958 (Cth), ss 5(1), 65, 357A, 360(2)(a), 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, item 3001
Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b)

CASES
Al Souhmarani v MIBP [2016] FCCA 2866
Babicci v MIMIA (2005) 141 FCR 285
Benissa v MIAC [2010] FMCA 657
Choi v MIBP [2018] FCA 291
CQV16 v MIBP [2018] FCCA 3735
CQV16 V MIBP [2019] FCA 1098
Jarratt v Cmr of Police for NSW [2005] HCA 50
Lan v MIBP [2018] FCCA 1170
McNamara v MIMIA [2004] FCA 1096
MIMA v Eshetu (1999) 197 CLR 611
MZYPZ v MIAC [2012] FCA 478
NAIS v MIMIA (2005) 228 CLR 470
Paduano v MIMIA (2005) 143 FCR 204
Plaintiff M64/2015 v MIBP [2015] HCA 50
Re MIMA; Ex parte Applicant S20/2002 [2003] HCA 30
Re MIMIA; Ex parte Lam (2003) 214 CLR 1
Saeed v MIAC (2010) 241 CLR 25
Singh v MHA [2020] FCAFC 7
Sun Zhan Qui v MIEA [1997] FCA 324
Sun Zhan Qui v MIEA (1997) 151 ALR 505

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 6 July 2015 on the basis of his relationship with his sponsor, [Ms A]. At that time, Class UK contained 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 delegate refused to grant the visa on 10 November 2016 on the basis that [the applicant] failed to meet cl.820.211(2)(d). [The applicant] did…

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Details
AGLC
1805730 (Migration) [2020] AATA 2957
Case
[2020] AATA 2957
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by a Nigerian citizen, referred to as [the applicant], who was in a relationship with an Australian citizen, [Ms A]. The applicant's visa application was made more than 28 days after the expiry of his last substantive visa, which was a Visitor visa that ceased in July 2014. Consequently, Schedule 3 criteria of the Migration Regulations 1994 were engaged, requiring the applicant to satisfy specific criteria unless compelling reasons existed not to apply them. The case was before the Tribunal for reconsideration after a previous remittal by the Federal Circuit Court.

The primary legal issue before the Tribunal was whether there were compelling reasons not to apply the Schedule 3 criteria to the applicant's visa application, given that he did not hold a substantive visa at the time of lodgement and had failed to meet the 28-day application window stipulated by Item 3001 of Schedule 3. The Tribunal was required to determine if the applicant's circumstances constituted "compelling reasons" as contemplated by clause 820.211(2)(d)(ii) of the Regulations, which allows for an exception to the Schedule 3 requirements.

The Tribunal reasoned that the applicant had maintained lawful visa status throughout his time in Australia by holding a series of bridging visas, and had diligently pursued his applications through various administrative and judicial stages. It noted that significant delays had occurred due to the increasing volume of applications and, more recently, COVID-19 travel restrictions, which were beyond the applicant's control. The Tribunal found that these delays, coupled with the applicant's consistent compliance with migration law and his pursuit of administrative law rights, distinguished his situation from that of an ordinary offshore applicant. Therefore, the Tribunal concluded that there were compelling reasons not to apply the Schedule 3 criteria, as penalising the applicant by requiring him to depart Australia and reapply offshore would be unduly harsh given the circumstances.

The Tribunal determined that the applicant met clause 820.211(2)(d)(ii) and that there were compelling reasons for not applying the Schedule 3 criteria. However, the Tribunal did not make a decision on whether the applicant met the criterion of being the spouse of Ms A under clause 820.211(2)(a), as this was the central issue of the application and to do so would usurp the role of the original delegate and deny the applicant merits review of that specific decision. Accordingly, the Tribunal remitted the matter for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue in this case is whether there are compelling reasons not to apply the provisions in Schedule 3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider it had any ongoing s.360 obligation as it was able to find in favour of [the applicant] on the basis of the material before it and so, pursuant to s.360(2)(a) of the Act, it was unnecessary for the Tribunal to invite [the applicant] to a further hearing.CONSIDERATION OF CLAIMS AND EVIDENCE [The applicant] was born on [Date] in Nigeria and is [Age] years of age. He is a citizen of Nigeria. [Ms A] was born on [Date] in [Country] and is [Age] years of age. She first arrived in Australia [in] December 1995 and became an Australian citizen [in] January 2000. [Ms A] first met [the applicant] at the [Venue] in [Suburb 1] [in] August 2014 at her [party]. They started a relationship and in late September or early October 2014 [the applicant] asked [Ms A] to marry him. She moved into his residence just before their wedding [in] November 2014. They currently live at [Suburb 2] in New South Wales.Clause 820.211(2)(d) and Schedule 3 Clause cl.820.211(2)(d) requires that an applicant who is not the holder of a substantive visa at the time of application satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Tribunal is satisfied that there are compelling reasons for not applying those criteria. In this case, the question is whether [the applicant] satisfies the requirements in Item 3001. [The applicant]’s Migration History [The applicant] first arrived in Australia for [an Event] [in] June 2014 as the holder of a Class FA Visitor Subclass 600 visa. That visa expired [in] July 2014. On 23 June 2014, [the applicant] made an application for a Class XA Protection Subclass 866 visa and was granted a Class WA Bridging Subclass 010 visa in relation to that application. On 6 July 2015, [the applicant] lodged this partner visa application and was granted a Class WC Bridging Subclass 030 visa in relation to this application on 8 July 2015. He has remained on a Bridging Visa C since that time.Clause cl.820.211(2)(d) The definition of ‘substantive visa’ in s.5(1) of the Act includes, at (a), a visa other than a bridging visa. The last visa held by [the applicant] that was other than a bridging visa was his Visitor visa. That visa ceased on 1 July 2014. Therefore, he did not hold a ‘substantive visa’ at the time of application on 6 July 2015 as required and so cl.820.211(2)(d) is engaged. Therefore, the initial question is whether [the applicant] satisfies Item 3001 of Schedule 3.Item 3001 In order to satisfy Item 3001, the application for the visa must have been lodged within 28 days of the relevant day: 3001(1). The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. In [the applicant]’s case, the relevant day, found in 3001(2)(c)(i) and (iii), is the last day when the applicant held a substantive visa. [The applicant] last held a substantive visa [in] July 2014. Therefore, [the applicant]’s partner visa application needed to be made within 28 days of that date, being by [July] 2014.

Decision

Reasons for decision

The Tribunal appreciates that [the applicant] will not be unique in finding himself in this situation. Many applicants who apply for judicial review and have their cases reconsidered by the Tribunal may find themselves equally delayed. That does not change the fact that it is one of [the applicant]’s circumstances and so relevant for the Tribunal to consider when considering his circumstances as a whole. It puts him in a position that distinguishes him from that of an ordinary offshore applicant. Nor is the Tribunal suggesting that there might never be a case where such delay would not constitute a compelling reason. The Tribunal only finds, for all the reasons above, that in [the applicant]’s case it is compelled not to penalise him by applying the Schedule 3 criteria and, instead, allow him to have his partner visa application considered in Australia rather than requiring him to return to Nigeria and start the process again as an offshore applicant. In making that assessment, it has taken into consideration the scope of the meaning of ‘compelling’ reasons for not applying Schedule 3, as well as the purpose of both Schedule 3 and the exception.[46] It notes that there is nothing in the context of the legislation that requires the reason to be outside [the applicant]’s control. However, he has diligently pursued each stage of the process in a timely manner and the delay has been for reasons beyond his control. It is also relevant that [the applicant] has never breached Australian migration law. The Tribunal has given these things considerable import when weighing up his circumstances against the purpose of Schedule 3. It has also considered the further delay due to Covid-19 and the fact that had he not pursued his administrative law rights, but returned and reapplied in Nigeria, the matter would be settled. [46] The Tribunal is aware that the common use is ‘waiver’, for instance in MZYPZ v MIAC [2012] FCA 478, but has instead preferred the term ‘exception’ used by Derrington J in Singh v MHA [2020] FCAFC 7 at [61] noting that the language of ‘waiver’ is incongruous with the terms of cl.820.211(2)(d)(ii).Conclusions The Tribunal is satisfied that there are compelling reasons for not applying the criteria in Schedule 3. Accordingly, [the applicant] meets cl.820.211(2)(d)(ii). In light of the Tribunal’s findings above, it considered whether it should also assess the other criteria in cl.820.211 and in particular address the question of whether [the applicant] is the spouse of [Ms A]: cl.820.211(2)(a). As noted above, there is nothing before the Tribunal at this time to identify whether he would meet that criterion or not. The delegate in the decision dated 10 November 2016 did not consider cl.820.211(2)(a) or the genuineness of the relationship. There is no doubt that the Tribunal has the power to put itself in the shoes of the Minister and make a decision on that question. However, the question of [the applicant]’s and [Ms A’s] relationship is the crux of the application and if the Tribunal were to usurp the delegate’s role it would deny [the applicant] any opportunity for merits review of that decision. Any judicial review by the courts would only look at whether the Tribunal has acted within its jurisdiction and not revisit any question of fact like whether the relationship is genuine.

Ratio Decidendi

Legal Principle Established

Clause cl.820.211(2)(d) requires that an applicant who is not the holder of a substantive visa at the time of application satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Tribunal is satisfied that there are compelling reasons for not applying those criteria. In this case, the question is whether [the applicant] satisfies the requirements in Item 3001. [The applicant]’s Migration History [The applicant] first arrived in Australia for [an Event] [in] June 2014 as the holder of a Class FA Visitor Subclass 600 visa. That visa expired [in] July 2014. On 23 June 2014, [the applicant] made an application for a Class XA Protection Subclass 866 visa and was granted a Class WA Bridging Subclass 010 visa in relation to that application. On 6 July 2015, [the applicant] lodged this partner visa application and was granted a Class WC Bridging Subclass 030 visa in relation to this application on 8 July 2015. He has remained on a Bridging Visa C since that time.Clause cl.820.211(2)(d) The definition of ‘substantive visa’ in s.5(1) of the Act includes, at (a), a visa other than a bridging visa. The last visa held by [the applicant] that was other than a bridging visa was his Visitor visa. That visa ceased on 1 July 2014. Therefore, he did not hold a ‘substantive visa’ at the time of application on 6 July 2015 as required and so cl.820.211(2)(d) is engaged. Therefore, the initial question is whether [the applicant] satisfies Item 3001 of Schedule 3.Item 3001 In order to satisfy Item 3001, the application for the visa must have been lodged within 28 days of the relevant day: 3001(1). The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. In [the applicant]’s case, the relevant day, found in 3001(2)(c)(i) and (iii), is the last day when the applicant held a substantive visa. [The applicant] last held a substantive visa [in] July 2014. Therefore, [the applicant]’s partner visa application needed to be made within 28 days of that date, being by [July] 2014. Because the visa application was not made within 28 days of the relevant day, [the applicant] does not satisfy Item 3001.Compelling Reasons – cl.820.211(2)(d)(ii) Since the Tribunal has found that [the applicant] does not meet Item 3001 of Schedule 3 to the Regulations, it is required to consider whether there are compelling reasons for not applying the requirements in Schedule 3: cl.820.211(2)(d)(ii). There is no specific definition of 'compelling' in either the Act or the Regulations, although some guidance can be gleaned from judicial consideration of both cl.820.211(2)(d)(ii) and a number of other similar provisions in the Act and Regulations. Whether a reason is compelling is a question of fact and degree for the Tribunal and one which requires a subjective assessment taking into account all of the circumstances.[1] The issue is one of the formation of a state of mind, not the exercise of discretion, but the matters which might be taken into account in forming that state of mind are unconfined.[2] In making that assessment, the scope of the meaning of ‘compelling’ should be referenced by both the context in which it appears, in this case reasons for not applying Schedule 3, and the purpose of the relevant provision.[3] In the context of cl 820.211(2)(d)(ii), that purpose is to deal with cases where there are compelling reasons for not putting particular applicants to the hardship of having to leave Australia to apply for a partner visa.[4] [1] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [53].[2] Singh v MHA [2020] FCAFC 7 per Derrington J at [55] and [61].[3] See Plaintiff M64/2015 v MIBP [2015] HCA 50 at [53]. See also Lui v MIBP [2015] FCA 1368 at [40]. [4] Al Souhmarani v MIBP [2016] FCCA 2866 at [18] citing Griffiths J in Waensila v MIBP [2016] FCFAC 32.