1905524 (Migration)

[2020] AATA 3908

1905524 (Migration) [2020] AATA 3908 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905524

MEMBER:Roger Maguire

DATE:23 September 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 23 September 2020 at 2:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – visa application made more than 28 days after last substantive visa held – compelling reasons for not applying criterion – visa and relationship history – validly married – applicant prepared to return to home country to lodge application, but pressured by sponsor to lodge application onshore – breakdown of marriage and continuing intimidation by sponsor and her parents – mental health – treatment in Australia – availability and quality of treatment in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), 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 28 May 2017 on the basis of his relationship with his 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 did not satisfy criteria 3001 of the Schedule 3 criteria, and there were no compelling reasons for not applying those criteria.

4. The applicant appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s cousin, [Ms A], an [Occupation], and his aunt, [Ms B].

5. The applicant was represented in relation to the review by his registered migration agent, [Ms C], MARN [Number].

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria, and if not, whether there are compelling reasons for not applying those criteria.

8. On 13 July 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant Public Interest Criteria 3001 and whether compelling circumstances exist which would warrant the Tribunal to not apply the Schedule 3 criteria under cl.820.211 of the Act. On 17 and 21 July 2020 the Tribunal received material including a statutory declaration of [Ms D] (social worker). On 10 August 2020, the Tribunal received material including, but not limited to, a written submission, an additional statutory declaration of [Ms D], an email from [Ms D], a statutory declaration of [Ms E], a letter from [Ms A], evidentiary photographs, a letter from [Ms B], a bank statement from the account of [Ms B], evidence of a loan from [Ms B] to the applicant, driver’s licence of [Ms B], a letter from [Mr F], driver’s licence of [Mr F], letter from [Mr G], driver’s licence of [Mr G], driver’s licence of [H], letter regarding employment from [Mr I], driver’s licence of [Mr I], bank statement of review applicant, text messages, email attaching a rental payment receipt, rental agreement and a medical certificate from [a] Hospital.

9. At the conclusion of the hearing, the Tribunal requested further evidence regarding the applicant’s mental health, and the availability and quality of mental health care in Romania.

10. On 14 September 2020, the Tribunal received:

    a.Psychologist report by [Ms J] dated 12 September 2020;

    b.Reports of admission at [a] Hospital on 3 September 2020 and 5 September 2020;

    c.Letter dated 26 August 2020 from [Dr K];

    d.Report dated 22 August 2019 from Radio Free Europe Radio Liberty;

    e.Extract from Clujul Medical provided by University of Medicine and Pharmacy of Cluj-Napoca Romania;

    f.Extract from Healthcare dated 15 June 2019;

    g.A report from Radio Romania International dated 19 February 2020.

11. All submitted material has been duly considered by the Tribunal.

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

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

12. 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).

13. 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

14. 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.

15. Evidence before the Tribunal shows that the applicant’s last substantive visa ceased on 23 September 2016, and that the present visa application was made on 28 May 2017.

16. The Tribunal finds that the present visa application was made more than 28 days after the relevant day, and that the applicant has therefore not satisfied criterion 3001 in Schedule 3 to the Regulations.

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

    Compelling reasons

18. 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.

19. 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.

20. In considering this application, the Tribunal has had regard for the departmental file, together with the decision record, all documents, statements, and photographs submitted on behalf of the applicant.

21. Evidence before the Tribunal shows that the applicant first arrived in Australia [in] June 2016 as the holder of a Visitor (TV 651) visa which ceased on 23 September 2016. On 10 September 2016, the applicant applied for a Student (subclass TU 500) visa, and this was refused on 30 December 2016.

22. On 11 January 2017, the applicant applied to the Tribunal for a review of the decision to refuse his student visa.

23. The applicant and his sponsor were married on 11 February 2017. On 28 May 2017, the applicant made the present application for a Combined Partner (subclass 820 and a subclass 801) visa. On 16 February 2018, the applicant withdrew his appeal to the Tribunal in respect of his student visa application.

24. The applicant’s Combined Partner visa application was refused on 20 February 2019, and the applicant lodged the present application for review of that decision.

25. The applicant elected not to depart Australia prior to the cessation of his Visitor visa. He also elected not to depart Australia following the refusal of his Student visa application. He also elected not to make the present application offshore when the evidence suggests that he knew of the difficulties in an onshore application.

26. The Tribunal notes that prior to the decision under review, the applicant made a submission based on his sponsor’s mental health in an effort to establish compelling circumstances. The submission made no mention of any mental health issue on the part of the applicant, and the Tribunal infers from this that the applicant’s decision making prior to the break down of his marriage was not impaired by his mental health, and there is no clear evidence that it was.

27. At the hearing, the applicant told the Tribunal that all information provided by him to the Department and the Tribunal remains true, current and correct as at the date of the hearing.

28. The applicant was asked if he was currently on any medication, or undergoing any medical treatment, and said that he was not at the moment.

29. The applicant was asked how he came to lodge this application onshore, and said that he was pressured by his partner to lodge the application onshore, as she needed his emotional and financial support.

30. The applicant said that he knew there might be complications arising out of the date of expiry of his last substantive visa, but he was not 100% sure and that his wife, who was completing her legal qualifications, was taking the decisions.

31. The applicant said that he had discussed with his wife the question of returning to Romania to make this application, and she pressured him to do it onshore.

32. The applicant was asked about the circumstances of the breakdown of his marriage, and whether divorce proceedings have commenced. The applicant said that the relationship with his wife broke down at the end of June 2019. The applicant said that his wife was constantly complaining about her circumstances, and was always asking for a better anything, and was constantly dissatisfied, and that she left the home, returned briefly and then finally left.

33. The applicant said that he has since had ongoing contact with his wife, and that there has been continuing bullying and intimidation from her.

34. The applicant was asked if he had applied for any injunctions or domestic violence orders against the sponsor so as to curb her conduct toward him, but said that he had not done so, because he was scared of her and her family. The sponsor’s mother had assaulted him at a shopping centre, and the sponsor and both her parents spoke very harshly to him.

35. The applicant was asked as to the date he first sought professional assistance in respect of his mental health, and said that this was in August 2019. He has recently been advised to take a break from counselling sessions until he knew the outcome of his application to the Tribunal.

36. The applicant said that the health system is not as helpful in Romania at it is in Australia, but there is mental health counselling available in Romania. The applicant said that the health system in Romania is corrupt and he might be required to pay bribes in order to get treatment, but he could get treatment there.

37. The applicant said that when he applied for the visa his wife put a lot of pressure on him and wanted him here, and she could not manage things by herself and she pressured him to bring money home and to move out with her. She was studying and could not leave the country to study overseas, and he had to support her and see her happy, and generally to be a good husband for her.

38. In January 2020 the sponsor asked the applicant to get back together and to move to Melbourne with her, and he accepted. They attempted a reconciliation over a period of three months, and they discussed buying a house, but she changed her mind after he had spoken to a real estate broker. They had disagreements about where to live and future plans, and the relationship ended in March.

39. The applicant said that he left Romania when he was [age], and he is now [age] and his life is in Australia.

40. As the hearing progressed, it was clear that the applicant was in a fragile state. The Tribunal allowed two short breaks so as to enable him to regather his composure.

41. The applicant’s agent confirmed to the Tribunal that she felt that the applicant had completed his evidence. Having regard for the applicant’s state, the Tribunal informed the applicant that it would allow the applicant’s migration agent to address and make submissions to the Tribunal following the second break.

42. Following the break, the applicant said that he would like his migration agent to speak on his behalf.

43. The applicant said that if he returns to Romania he will feel more depressed and worried, and will need more help, and that it would be like the sky falling on him. He only has his parents back in Romania.

44. The Tribunal also heard evidence from [Ms A] who described the history of the relationship between the applicant and his sponsor, and her hope that he would obtain an Australian qualification. The witness narrated the sponsor’s concerns about the applicant’s departure, and that she would have felt lost if he had to return. The witness said that they both knew that he was not allowed to apply for the Partner visa and that the applicant was accepting of this. The witness also criticised the availability, corruption, and quality of health care in Romania.

45. The witness said that she considered that the applicant is in a very bad state of mind, and that he would not get the medical support he would get in Australia should he be required to leave Australia.

46. The Tribunal also heard evidence from the applicant’s aunt, [Ms B], who confirmed the veracity of her statement of 7 August 2020, and spoke of the sponsor’s instability and erratic behaviour.

47. The Migration agent was invited to address the Tribunal and referred to the email of [Ms D]. The agent asked for 14 days to address the issue of the mental health system in Romania. The Tribunal also requested a report from a psychiatrist or a psychologist report of the likely consequences, and that this should have regard for the availability of mental health services in Romania.

48. In order to allow the provision of the further evidence the Tribunal adjourned the hearing to a date to be fixed if necessary.

49. It is clear from the evidence of [Ms A] that the applicant and his sponsor had received advice that he should return to Romania to lodge his application for the Partner visa. Consistent with this, the applicant’s aunt gave evidence that the applicant was happy to go back to Romania to make the application. The Tribunal accepts that the applicant gave in to pressure from the sponsor to lodge the present application onshore.

50. The Tribunal has had regard for the statutory declaration dated 18 June 2020 by [Ms D], and accepts that the applicant exhibits elevated scores for anxiety, acute stress symptoms, sleep disturbance, depression and post-traumatic stress syndrome.

51. The Tribunal notes with concern the declarant’s observation that:

    Post separation, aspects of Family Violence appear to continue based on verbal reporting and my observation of [the applicant’s] ongoing deterioration. My therapeutic work is impeded by the continued and threatening nature of communication by [the sponsor].

    ….

    The ongoing nature of the abusive behaviour, post separation, is limiting the victim’s ability to focus on healing his mental health. He continues to experience emotional and psychological abuse by a coercive and controlling the threats to his safety and security is a productive and working resident of Australia. My professional opinion is for [the applicant] to take out a restraining order against [the sponsor], however he is afraid of reprisal due to ongoing threats of legal and immigration retribution.

52. The Tribunal also notes the declarant’s statement that:

    [The applicant] has committed to regular and ongoing psychological treatment. He has currently attended 5 sessions to this dated, (sic) and is committed to continue attendance until his Anxiety and Depression is reduced.

53. The Tribunal also had regard for the statutory declaration dated 11 March 2020 by [Ms L], a psychologist. The declarant saw the applicant for six sessions of counselling from 30 July 2019 to 29 October 2019 following a referral under a Mental Health Care Plan by his general practitioner. The declarant reported that the applicant completed the Depression, Anxiety and Stress Assessment Tool, which indicated that he was experiencing:

    … extremely severe depression extremely severe anxiety and severe stress when completed during the first session, with no change in scores when the DASS was completed during session six. He also obtained a Kessler Psychological Distress score of 29 during session one, indicating that he was likely to have a moderate mental disorder and this score had increased to 40 by session six, indicating that he was likely to have a severe mental disorder.

54. The Tribunal accepted the evidence of [Ms D] and [Ms L] which were consistent with the Tribunal’s observations of the applicant, and in consequence of so doing having regard to the applicant’s poor state of mental health, acknowledged that there are exceptional circumstances in this case which warranted the Tribunal allowing the applicant’s migration agent to address it.

55. At the conclusion of the hearing, the Tribunal requested further evidence as to the applicant’s mental health, and consequences for his health in the event that he were to return to Romania.

56. The Tribunal has had regard for the material received post hearing. Of particular concern is the report of [Ms J] regarding the applicant’s [vehicle] accident which she believed may have been caused by a blackout following a severe anxiety attack. The reports from [a] Hospital show that he was hospitalised on 3 September, the day prior to a consultation with [Ms J] and was readmitted for several days on 5 September.

57. [Ms J] also opined:

    Considering the severity of his diagnosis and the impact on his life, I have grave concerns for his life and wellbeing if forced to leave Australia. I also fear for his long term mental health if left untreated due to lack of health care in another country.

58. [Ms J] recommended against the applicant’s relocation and supported his present mental health treatment, in the absence of which she felt his condition would otherwise deteriorate. The Tribunal gives weight to [Ms J]’s evidence.

59. The Tribunal has had regard for the letter of [Dr K], who obtained her medical qualifications and worked as a doctor for four years in Romania. [Dr K] stated that mental health care is stigmatised, costly and generally regarded as only being for sufferers of schizophrenia and persons with mental disability. She also stated that general practitioners cannot prescribe antidepressants and/or anti-anxiety medication. She also stated that the system is corrupted and that there is no improvement in sight, and that mental health is on the list of health services most affected by the situation.

60. The Tribunal has also had regard for the various articles referred to above.

61. All of this evidence supports the rather bleak, sinister and corrupt picture of Romania’s health system, (particularly in so far as mental health issues are concerned) which was painted by the applicant and [Ms A]. The Tribunal accepts this evidence in totality, and this raises a serious concern as to the applicant’s long-term welfare should he be required to return there.

1. The Tribunal has been left with the impression that the applicant’s sponsor was a demanding, abusive, domineering, controlling, threatening and manipulative woman who most likely had her own mental health issues, and that these factors are likely to have impacted on a vulnerable applicant’s exercise of his own free will at the time of the visa application, and ultimately on his own mental health.

2. Emotional hardship can be considered a compelling factor in relation to the Schedule 3 criteria, and the applicant has provided ample evidence to demonstrate the severity of the anticipated hardship.

3. Having regard to the totality of the evidence in this case the Tribunal considers that the applicant has established compelling circumstances for not applying the Schedule 3 criteria.

4. 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).

5. 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

6. 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.