1814075 (Migration)

[2020] AATA 3700

1814075 (Migration) [2020] AATA 3700 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814075

MEMBER:Roger Maguire

DATE:1 July 2020

PLACE OF DECISION:  Brisbane

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 01 July 2020 at 3:58pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – two periods of unlawful residence and bridging visas – claim to be unaware of unlawful status – compelling reasons for not applying criteria – length of relationship – validly married in home country – best interests of Australian citizen children – 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, criteria 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 Home Affairs 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 June 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) because the applicant failed to meet Schedule 3 criterion 3001, and there were no compelling reasons for not applying the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 30 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband and sponsor, [Mr A]. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies criterion 3001, and if not whether there are compelling reasons for not applying that criterion.

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

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

7. 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).

8. 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

9. 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.

10. In the present case, the visa application was lodged on 9 June 2017, and the applicant’s last substantive visa ceased on 17 July 2016. This was clearly outside 28 days after the relevant day, and the Tribunal finds that the applicant does not meet criterion 3001.

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

    Compelling reasons

12. 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.

13. 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.

14. Examples of what might constitute “compelling reasons” are offered in the Explanatory Statement to Statutory Rules 1996, No. 75:

    Clause 10 - Schedule 2, Part 820 (Spouse)

    Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

    It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:

    -    where there are Australian-citizen children from the relationship; or

    -    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.

    In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

15. The Tribunal notes that in this context what amounts to compelling reasons is to be considered on a case-by-case basis, but that the provisions are not intended to facilitate persons who:

    ·fail to comply with the visa conditions or

    ·deliberately manipulate their circumstances to give rise to compelling reasons or

    ·can leave Australia and apply for a partner visa outside Australia.

16. The existence of a genuine spousal or de facto relationship between the applicant and sponsoring partner and the hardship suffered from separation if the applicant were to leave, and apply for the visa outside Australia are not, in themselves compelling reasons not to apply the Schedule 3 criteria. This is because a genuine relationship forms the basis of all partner visa applications and hardship caused by separation, while it differs in degree from one case to another, is common in the partner visa caseload, particularly in the offshore context where partners may be separated for extended periods during visa processing.

17. Evidence before the Tribunal establishes that the applicant has entered Australia on 11 occasions since [November] 2008, most recently entering [in] May 2014, when she returned from the People’s Republic of China following her marriage to her sponsor.

18. On 17 July 2016, the applicant’s then visa expired, and she became an unlawful non-citizen, and remained so until 17 March 2017, when she lodged and was granted a Bridging (Subclass 050) visa E which was in effect until 11 April 2017, at which time the applicant became unlawful again, and on 9 June 2017 she made the present visa application resulting in the grant on 13 June 2017 of a Bridging (Subclass 050) visa E with no work rights.

19. The applicant claimed to have been unaware until advised by the Department in March 2017 that she had been an unlawful non-citizen in Australia.

20. The applicant had planned to apply for an Employer Nomination Scheme (Subclass 186) visa as she was working for her employer for 2 years. However during this time the applicant asked for maternity leave. Therefore the working time was not sufficient to apply for the Employer Nomination Scheme (Subclass 186) visa.

21. The applicant is an experienced international traveller who has entered Australia many times. The Tribunal considers her claims to have been unaware of her unlawful immigration status to be disingenuous.

22. The Tribunal has before it a translation of a marriage certificate issued by the government of the People’s Republic of China evidencing the registration of a marriage between the parties [in] April 2014.

23. The parties have 2 children, [Child 1] born [Date 1], and [Child 2] born [Date 2] , and both children are citizens of Australia.

24. The Tribunal also has had regard to a lease of land in the name [Company name] and a certificate of registration of that company, and a company extract which shows the sponsor as owner of all shares. The Tribunal has also had regard to a further commercial lease in the name of this company as lessee. It was submitted that this company carries on business under the name [Business name]. The sponsor is the owner of the company and is said to be extremely busy. It was submitted that were he required to stay at home with the children the family would struggle financially, and this would mean that the business would struggle and possibly go out of business.

25. The Tribunal has also had regard to medical records pertaining to the applicant.

26. The Tribunal has had regard to submissions dated 4 June 2019 and 3 May 2020 made on behalf of the applicant.

27. At the hearing, the applicant told the Tribunal that all information submitted to the Government and to the Tribunal on her behalf was true, current and correct as at the date of the hearing.

28. The applicant told the Tribunal that she met the sponsor in Australia in 2012, they started living together in March 2013, and married in 2014 in China. The parties have now lived together for a little over 7 years.

29. The sponsor is a permanent resident, and has lived in Australia for 13 years, and has been a permanent resident for 10 years.

30. They have no plans to return to China, and are both intending to live in Australia for the rest of their lives.

31. The applicant has not left Australia since 2014 when they returned to China to get married.

32. The applicant said that she had miscarried around the time her bridging visa expired in April 2017.

33. The applicant said she was told by her migration agent that her 457 visa was going to be for 4 years, but it was only for 3 years. She said she did not read the copy of the visa she received, and she said that her migration agent did not explain the duration of the visa in the covering letter.

34. The applicant conceded that she had not lodged within 28 days of the expiry of her last substantive visa, and that she did not meet criterion 3001.

35. The applicant said that she is the mother of two daughters who were both born in Australia on [Date 1], and [Date 2]. The elder daughter is in prep at primary school and the applicant cares full time for her younger daughter. Both daughters are Australian citizens. The sponsor has two businesses and supports the family. The applicant does not have paid employment. The elder daughter has numerous after school activities and the applicant is very busy looking after the children and doing housework.

36. The Tribunal also heard evidence from the applicant’s husband and sponsor, [Mr A] who said that the main reason for compelling reasons is their two daughters, and the applicant’s role in the family. The children have Australian culture and he will face difficulties running his businesses and caring for the children. The applicant has done “the whole job caring for the children.”

37. The sponsor said he did not know too much about how the applicant became unlawful, and they thought that her 457 visa was for a 4-year period. [Mr A] assured the Tribunal that her status as an unlawful non-citizen was unintentional.

38. The Tribunal does not regard the applicant’s explanation of the circumstances in which she twice became an unlawful non-citizen as satisfactory.

39. Nevertheless, the Tribunal does accept that the applicant and her sponsor have now lived together for over 7 years, and the Tribunal gives weight to the length of the relationship as is provided for in the Explanatory Statement referred to above.

40. The Tribunal also gives weight to the fact that the parties have two daughters who are Australian citizens as is also provided for in the Explanatory Statement referred to above.

41. The Tribunal also accepts that the applicant is the primary care giver to those children and that the sponsor would not be able to fill the applicant’s shoes adequately should she be required to depart from Australia and her role as primary care giver to the children.

42. Considering the whole of the evidence in this case, 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).

43. 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

44. 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.

    Roger Maguire
    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.