1904225 (Migration)

[2020] AATA 4031

1904225 (Migration) [2020] AATA 4031 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904225

HOME AFFAIRS REFERENCE(S):          BCC2017/2016195

MEMBER:Margie Bourke

DATE:21 September 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 21 September 2020 at 12:15pm

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 – physical health of sponsor’s adult children – mental and physical health of sponsor – treatment and applicant’s support – hardship to sponsor if applicant leaves Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 6 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) because  the delegate found that the applicant did not meet the Schedule 3 requirements, and compelling reasons did not exist for waiving the Schedule 3 requirements.

4. The applicant appeared before the tribunal on 17 September 2020 by video to give evidence and present arguments. The tribunal also received oral evidence from sponsor, who attended by video, and appeared on the same device as the applicant.   The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing by video.

6. For the following reasons, the tribunal has concluded that the matter should be remitted 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?

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. Based on the evidence of the applicant, submissions from the applicant’s representative, and information contained in the department decision record dated 19 February 2019, (a copy of which was provided to the tribunal by the applicant), I am satisfied that the applicant came to Australia on 17 January 2014 as the holder of a visitor visa.  The visitor visa ceased on 17 April 2014, and the applicant did not hold a substantive visa after 17 April 2014.  For the purposes of assessment of Schedule 3 criteria, 17 April 2014 is the relevant day.

11. The application for the partner visa which is the subject of this review was signed 19 May 2017, and received by the Department on 6 June 2017, over three years after the relevant day.

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

    Compelling reasons

13. 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.

14. 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.

15. I have considered the written and oral evidence of the applicant and the sponsor, the medical and psychological reports in relation to the sponsor, and the statutory declaration of the sponsor’s mother.

16. I considered information provided by the applicant to the Department.  I requested the applicant provide medical reports to the tribunal to confirm the credibility of the claims of the medical conditions allegedly experienced by or diagnosed in relation to the sponsor’s sons.

17. I have considered the hospital discharge sheet dated 8 January 2019 which records that [Child A] (date of birth recorded) has a current condition of [medical condition].  I have considered a medical report dated 2 September 2020 from a [medical specialist] recording ongoing reassessments in relation to [Child B] (date of birth recorded). I am satisfied based on the two reports provided to the tribunal post hearing, that the sponsor’s adult sons have ongoing health conditions, as he advised the Department. 

18. I accept the medical evidence that the sponsor is diagnosed and under treatment for depression and other medical issues. I am satisfied that the applicant was referred to a psychologist on a mental health care plan and has participated in ongoing but limited consultations.  I accept the sponsor receives prescribed medication and counselling.  I have given serious weight to the opinion of both his psychologist and  treating doctor that his symptoms and condition have continued, but his prognosis will improve if his wife’s (the applicant) immigration status can be resolved and she can remain with him in their home.

19. I have considered the evidence of the applicant and the sponsor that the sponsor depends upon the applicant to set out his daily medication, anti-depressants and for high blood pressure, and at night to assist sleep if required. I accept the applicant is the mainstay of the couple’s [business], and does the cooking, cleaning and most of the household tasks in the home. I accept the sponsor depends upon the applicant for his emotional balance, and both the applicant and sponsor fear the sponsor will become seriously unwell or unstable if the applicant is required to depart Australia and lodge the application for the visa offshore.

20. I have considered the sponsor’s mother provided a statutory declaration dated 2 September 2020, in which she declared that her son is substantially reliant upon the applicant for his needed ongoing support, they have a strong emotional connection, and she fears if the applicant was required to depart Australia would be psychologically ruinous for her son.

21. Based on the medical and psychological reports I am satisfied that the sponsor is diagnosed and treated for a serious psychological condition.  Based on the medical and psychological reports, and written and oral evidence of the applicant, sponsor and the sponsor’s mother, I am satisfied that the sponsor is psychologically, emotionally and practically dependent upon the applicant.  I am satisfied that if the applicant was required to depart Australia and lodge the application for the visa offshore, the sponsor would experience deterioration in his psychological health, and suffer emotional and physical hardship that amounts to compelling reasons for not applying the Schedule 3 criteria.

22. Therefore the tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets the requirements of cl.820.211(2)(d)(ii).

23. 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

24. 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.