1837889 (Migration)

[2020] AATA 4232

1837889 (Migration) [2020] AATA 4232 (22 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837889

MEMBER:Meena Sripathy

DATE:22 September 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)(ii) of Schedule 2 to the Regulations

Statement made on 22 September 2020 at 2:46pm

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 criterion – visa history – plans to leave before expiry of visa – threat, fear of harm in home country and application for protection visa, later withdrawn – validly married – emotional and financial dependence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 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 30 October 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 Schedule 3 criteria 3001 was not met and the delegate was not satisfied there were compelling reasons to waive this criterion.

4. On 16 April 2020, the Tribunal received a request for priority processing of the application together with submissions and supporting evidence. The request for priority processing was refused by the Registrar of the Tribunal on 23 April 2020, on the basis that the material provided required consideration by a Member of the Tribunal, and the matter had yet to be constituted.  Subsequently, on 5 August 2020, it was constituted to the present Tribunal.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The issue in the present case is whether the applicant meets the relevant schedule 3 criterion or there are compelling reasons for not applying those criteria.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a [age] year old Iranian national. She is sponsored by [Mr A], who is a [age] year old Australian citizen. The parties indicate in the application that they met in December 2016 and commenced a de facto relationship in February 2017. They lived separately until they became engaged.  The applicant has parents, one sister and one brother in Iran and a sister residing in Australia. The sponsor has parents and a sister residing in Australia. The present application was lodged on 30 October 2017.

9. Included in the Department file is a NSW Relationship Certificate evidencing the registration of their relationship [in] October 2017 and a NSW Marriage Certificate evidencing their marriage [in] January 2018. Other documentation in support of the relationship lodged with the Department include Statutory Declarations from the applicant and sponsor; Statutory Declaration Form 888s from the applicant’s sister and sponsor’s sister, evidence of a joint bank account and statements, various receipts for household items purchased by the parties, receipts for travel to the Gold Coast in December 2017, wedding photos and photos of the couple in social settings.

10. Departmental records indicate the applicant has travelled to Australia several times since 2013 on various Tourist visas. She last arrived [in] December 2016 on a Tourist visa that was valid for a period of 3 months from the date of her arrival.  On 30 March 2017 she lodged an onshore visa application, which was deemed invalid on 24 March 2017.  She lodged a fresh, valid, application on 5 April 2017.  After lodging the present Partner visa application on 30 October 2017, on 1 November 2017 she withdrew the other application. She is the holder of a Bridging visa C in association with the present application.

11. On 18 November 2018 the applicant was invited to provide information in support of compelling reasons for not applying the Schedule 3 requirements in her case, as her application was made more than 28 days since the last substantive visa.   

12. The applicant responded to the invitation on 14 December 2018 through her representative and provided supporting evidence. Submissions were made about the circumstances that led her to make an onshore visa application in March and April 2017, that she feared for her safety upon return to her home country, she is suffering from stress and anxiety as a result of these circumstances and the ongoing uncertainty of the visa process, that she and the sponsor are emotionally dependent on each other and have joint financial commitments in Australia and would suffer significant hardship if separated for a period of time.  Supporting evidence including a letter from [Dr B], Psychologist, Associate Professor School of Medicine, [named University], Iran from whom the applicant received treatment via Skype and telephone, statements from the applicant and sponsor, and photos were provided.

13. The delegate considered the material, however was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria and refused the application on 20 December 2018. The delegate was not satisfied that she had provided sufficient convincing evidence to substantiate any of her claims.

14. The applicant sought review of the decision to the Tribunal, and as indicated above, provided evidence and submissions requesting priority allocation and dispensation with hearing on the basis of Covid 19 and the unprecedented compelling circumstances in the matter. 

    Evidence before the Tribunal

15. The submissions provided by the applicant’s representative to the Tribunal dated 15 April 2020, provide the following relevant information:

    ·The applicant had a ticket to return to Iran [in] March 2017, and did not depart due to intervening unforeseeable circumstances involving threats against her from an old classmate.  This caused her to fear for her safety upon return to Iran and led to her decision to lodge a protection visa application.  Reference is made to evidence contained in the attached Statutory Declaration of the applicant, support letters from her mother and sisters and claims made in the protection visa application. 

    ·She was unlawful for a period of 22 days between 13 March and 5 April 2017 because of an administrative error that led to the initial protection application she made on 3 March being deemed to be invalid and she had to lodge a fresh application.

    ·Her relationship with the sponsor had commenced at that time and was developing.  They later became engaged, started living together and subsequently married and have been together continuously since then and have supported each other emotionally and financially.

    ·Particularly given the circumstances of Covid 19, they are even more dependent on each other in all respects.

    ·The applicant recently lost her job due to Covid 19, and as the holder of a BVC she is not entitled to any form of income support.  The sponsor is under significant financial strain to support them both on his income alone. 

    ·It is submitted that the circumstances of the Covid 19 pandemic of itself is unprecedented, exceptional and compelling and gives rise to a compelling urgency to review and dispose of this matter. 

    ·This, together with the above and evidence provided, should satisfy the Tribunal that there are compelling reasons to waive Schedule 3 criteria in this case.

    ·It is further submitted that the applicant and sponsor are in a genuine and continuing spousal relationship and also meet this criteria for the visa.

16. Attached with the submissions are the following documents in support:

    ·Statutory Declaration of the applicant dated 9 April 2020;

    ·Statutory Declaration of the sponsor dated 9 April 2020;

    ·Statement of [Ms C], sister of the applicant in Iran;

    ·Statement of [Ms D] dated 15 April 2020 , sister of the applicant in Australia;

    ·Statutory Declaration Form 888s dated 16 April 2020 of [Ms E] and [Mr F], sister and brother in law of sponsor;

    ·Letter from applicant’s employer dated 16 April 2020 advising of stand down from normal store operations until 27 September 2020, or further notice;

    ·Evidence of applicant’s passenger itinerary receipt for return flight [March] 2017 from Sydney;

    ·Evidence of relationship, including rent payments made by sponsor, joint bank statements, receipts, photos , various receipts for AirBnB bookings for applicant and sponsor in April 2018, September 2018, November 2018, March 2020.

    CONSIDERATION

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

17. 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).

18. 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

19. 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.

20. In the present case, the last substantive visa the applicant held was her visitor visa which ceased on 12 March 2017. The ‘relevant day’ therefore is 12 March 2017.  She applied for the present visa on 30 October 2017.

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

    Compelling reasons

22. 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.

23. 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.

24. The original intention of the introduction of the waiver provision referred to in the Explanatory Statement to Statutory Rules 1996, No. 75 was to provide flexibility for the Minister in compelling circumstances and avoid hardship caused by requiring an applicant to leave Australia and apply again for the visa offshore. The Tribunal observes that an example of what may be considered ‘compelling’ referred to in the Explanatory Statement included a ‘long term relationship’. This term is defined in the Migration Regulations to mean a relationship that has continued, in the case where there is not a dependent child, for not less than three years. The Tribunal has also considered the purpose of Schedule 3 set out in current Departmental policy (mindful that the policy is not binding on the Tribunal, but can be considered) to encourage non-citizens to apply for a further visa before their visa ceases, discourage them from remaining beyond the period of their visa and prevent non-citizens from benefitting by remaining in Australia unlawfully.

25. The Tribunal has carefully considered the evidence and submissions put forward by the applicant and her representative regarding compelling reasons for not applying the Schedule 3 criteria in this case.

26. With regard to the explanation provided for why she did not depart Australia at the expiry of her visitor visa in March 2017 and the circumstances causing her to fear harm in Iran, the applicant made reference to the protection visa application and information she provided there, together with additional information in her Statutory Declarations and statements from her sisters. The Tribunal has considered the information she provided in her protection visa applicant and is satisfied it is consistent with submissions made in this application.  She had a right to make this application.  Having regard to the nature of the claims made, the timeline of events, evidence of her return ticket booking, and supporting statements from her sisters the Tribunal accepts, prima facie, the claims made are plausible.  Ultimately, her protection claims were never fully assessed because the application was withdrawn.  Notwithstanding that she withdrew that application, she relies on those claims as a compelling reason to justify waiver of the Schedule 3 criteria in this application.  For this purpose, on the material before it, the Tribunal is prepared to accept that the applicant had a subjective fear of returning to Iran arising from threats made against her by a former classmate.

27. The Tribunal accepts that she made the protection visa application initially within the period of her last substantive visa, but because it was found to be invalid, a valid application was made after the expiry of her substantive visa.  It accepts therefore the period she did not hold any visa was relatively short, between 13 March and 5 April 2017, after which she held a bridging visa.

28. In addition to the circumstances of her fear of harm in Iran and the short period of holding no valid visa, the Tribunal has considered the following other circumstances the applicant has put forward as compelling. It accepts she and the sponsor have been living together continuously, initially as a de facto couple and now married, for almost 3 years. While not quite a ‘long term relationship’ with the meaning of that term in the Migration Regulations, the Tribunal accept this is a substantial period. The applicant asserts, and the Tribunal accepts, that in this time they have become emotionally and financially dependent on each other and have plans and aspirations for their future. To now require the applicant to depart Australia for an indefinite period to lodge a fresh application would cause them both significant and unnecessary emotional, practical and financial hardship.

29. The Tribunal is also prepared to take into account and give weight in its consideration of compelling circumstances in the present case to the impact and consequences of the global Covid 19 pandemic on international travel and future processing of applications.  The circumstances of Covid 19 will likely make it difficult for the sponsor to visit the applicant overseas, and result in uncertainty of processing times for future applications. This may mean a potentially indefinite period of separation for the parties, which is particularly harsh given the applicant and sponsor’s stated desire to start a family in the near future.  

30. Taking all of the above circumstances into account cumulatively the Tribunal is sufficiently convinced that there are compelling reasons in the present case.

31. For these reasons, 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).

32. 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

33. 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

    Meena Sripathy
    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.