1923098 (Migration) - [2023] AATA 3488

1923098 (Migration) [2023] AATA 3488 (20 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)
CASE NUMBER:  1923098
MEMBER:Cheryl Cartwright
DATE:20 July 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 20 July 2023 at 4:39pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – periods as unlawful non-citizen, protection visa application and reviews and associated bridging visas – compelling reasons for not applying criterion – genuine relationship, sponsor’s health and hardship if applicant departs to apply offshore not, of themselves, compelling reasons – validly married – limited and inconsistent evidence of financial, household and social aspects of relationship and nature of commitment – sponsor’s health and applicant’s support – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
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
Plaintiff M64/2015 v MIBP [2015] HCA 50
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

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 (Cth) (the Act).
The applicant applied for the visa on 13 September 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 (Cth) (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(d)(ii) because he failed to meet Schedule 3 criterion 3001. The applicant’s last substantive visa ceased on 13 October 2008. The applicant therefore ceased to hold a substantive visa more than 28 days prior to lodging the application for a Subclass 820 (Partner) visa.
The applicant appeared before the Tribunal on 21 April 2023 and 6 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearings.
For the following reasons, the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1923098 (Migration)

Details

AGLC: 1923098 (Migration) [2023] AATA 3488
Case: [2023] AATA 3488
Decision Date: 20 July 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa (subclass 820) by an applicant who had been in Australia unlawfully for a significant period. The applicant had arrived in July 2008 and his tourist visa expired in October 2008. He subsequently applied for a protection visa, which was refused, and this decision was upheld on review by the Refugee Review Tribunal and the Federal Court. The applicant had been granted various bridging visas during this period, and his last bridging visa expired in August 2014, after which he again became an unlawful non-citizen. The Tribunal was required to determine whether the applicant met the Schedule 3 criteria for the visa application, and if not, whether there were compelling reasons to waive these requirements.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 820.211(2)(d)(ii) of the Migration Regulations 1994, which necessitates meeting Schedule 3 criteria. If these criteria were not met, the Tribunal had to consider if compelling reasons existed to waive them. The Tribunal also examined the applicant's credibility, particularly in light of his statements regarding his intention to leave Australia when applying for a bridging visa on departure grounds, and his claim of fear of returning to Vietnam.

The Tribunal found that the applicant did not satisfy the Schedule 3 criteria. It reasoned that the applicant's genuine relationship, the sponsor's health, and the potential hardship to the applicant if forced to apply offshore were not, in themselves, compelling reasons to waive the Schedule 3 requirements. Furthermore, the Tribunal noted inconsistencies and limited evidence regarding the financial, household, and social aspects of the relationship, as well as the nature of the commitment. Crucially, the Tribunal expressed concern about the applicant's credibility due to his admission of making a "temporary promise" to return to Vietnam on a visa application, which he later stated he had no intention of fulfilling, preferring to remain in Australia even if it meant imprisonment.

The Tribunal affirmed the decision not to grant the applicant the Partner (Temporary) (Class UK) visa, concluding that the applicant did not meet the criteria for its grant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is whether the applicant satisfies the requirements of cl 820.211(2)(d)(ii) which requires that he meet Schedule 3 criteria. If Schedule 3 criteria are not met, the Tribunal must consider whether compelling reasons exist in order to waive the Schedule 3 requirements.Background The applicant arrived in Australia [in] July 2008 as the holder of a tourist (subclass 676) visa. On 13 October 2008, the tourist visa expired and the applicant became an unlawful non-citizen. He remained so until he lodged an application for a protection visa on 23 May 2011 and was granted a bridging (subclass C) visa. The application for a protection visa was refused by the Department on 12 September 2011. The applicant’s request for review of this decision was refused by the Refugee Review Tribunal on 28 February 2012 and the Federal Court on 28 August 2012 found in favour of the Minister after a judicial appeal of the decision to refuse the protection visa. On 25 September 2012, the applicant’s bridging (subclass C) visa associated with his application for a protection visa ceased and the applicant again became an unlawful non-citizen. The applicant’s request for Ministerial Intervention, dated 27 September 2012, was declined on 22 April 2013. Following the request for Ministerial Intervention, the applicant was granted bridging (subclass E) visas on 2 October 2012, 30 October 2012, 27 November 2012, 11 January 2013, 8 February 2013, 8 March 2013, 11 April 2013 and 13 May 2013. The bridging visa granted on 13 May 2013 ceased on 20 May 2013 and the applicant again became an unlawful non-citizen. On 4 August 2014 the applicant was granted a bridging (subclass E) visa on departure grounds. This visa ceased on 11 August 2014 and the applicant again became an unlawful non-citizen. At the hearing on 21 April 2023, the Tribunal asked the applicant if, at the time he applied for the bridging (subclass E) visa that was granted on the basis that he would leave Australia, did he purchase a ticket on a plane or ship to leave the country. The Tribunal notes that, in order to be granted a visa based on the applicant planning to leave Australia, the applicant would need to state on the application form that he intended to leave the country. The applicant told the hearing he did not purchase a ticket to leave Australia at that time. When the Tribunal asked if he had ever intended to leave Australia, or had he made an untrue statement on his visa application, the applicant told the hearing that he had not intended to leave Australia. The applicant told the hearing that he had made a ‘temporary promise’ to return to Vietnam in his application for the bridging visa that was granted on 4 August 2014. The applicant told the hearing that he would ‘rather be in prison’ in Australia than return to Vietnam. The Tribunal notes the applicant claims to be afraid to return to Vietnam but also notes that a ‘temporary promise’ is a misleading statement on the visa application and causes the Tribunal to be concerned about the applicant’s credibility. The Tribunal also notes that his application for a protection visa was refused by the Department on 12 September 2011, a request for review of this decision was refused by the Refugee Review Tribunal on 28 February 2012 and the Federal Court on 28 August 2012 found in favour of the Minister after a judicial appeal of the decision.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant satisfies the requirements of cl 820.211(2)(d)(ii) which requires that he meet Schedule 3 criteria. If Schedule 3 criteria are not met, the Tribunal must consider whether compelling reasons exist in order to waive the Schedule 3 requirements.Background The applicant arrived in Australia [in] July 2008 as the holder of a tourist (subclass 676) visa. On 13 October 2008, the tourist visa expired and the applicant became an unlawful non-citizen. He remained so until he lodged an application for a protection visa on 23 May 2011 and was granted a bridging (subclass C) visa. The application for a protection visa was refused by the Department on 12 September 2011. The applicant’s request for review of this decision was refused by the Refugee Review Tribunal on 28 February 2012 and the Federal Court on 28 August 2012 found in favour of the Minister after a judicial appeal of the decision to refuse the protection visa. On 25 September 2012, the applicant’s bridging (subclass C) visa associated with his application for a protection visa ceased and the applicant again became an unlawful non-citizen. The applicant’s request for Ministerial Intervention, dated 27 September 2012, was declined on 22 April 2013. Following the request for Ministerial Intervention, the applicant was granted bridging (subclass E) visas on 2 October 2012, 30 October 2012, 27 November 2012, 11 January 2013, 8 February 2013, 8 March 2013, 11 April 2013 and 13 May 2013. The bridging visa granted on 13 May 2013 ceased on 20 May 2013 and the applicant again became an unlawful non-citizen. On 4 August 2014 the applicant was granted a bridging (subclass E) visa on departure grounds. This visa ceased on 11 August 2014 and the applicant again became an unlawful non-citizen. At the hearing on 21 April 2023, the Tribunal asked the applicant if, at the time he applied for the bridging (subclass E) visa that was granted on the basis that he would leave Australia, did he purchase a ticket on a plane or ship to leave the country. The Tribunal notes that, in order to be granted a visa based on the applicant planning to leave Australia, the applicant would need to state on the application form that he intended to leave the country. The applicant told the hearing he did not purchase a ticket to leave Australia at that time. When the Tribunal asked if he had ever intended to leave Australia, or had he made an untrue statement on his visa application, the applicant told the hearing that he had not intended to leave Australia. The applicant told the hearing that he had made a ‘temporary promise’ to return to Vietnam in his application for the bridging visa that was granted on 4 August 2014. The applicant told the hearing that he would ‘rather be in prison’ in Australia than return to Vietnam. The Tribunal notes the applicant claims to be afraid to return to Vietnam but also notes that a ‘temporary promise’ is a misleading statement on the visa application and causes the Tribunal to be concerned about the applicant’s credibility. The Tribunal also notes that his application for a protection visa was refused by the Department on 12 September 2011, a request for review of this decision was refused by the Refugee Review Tribunal on 28 February 2012 and the Federal Court on 28 August 2012 found in favour of the Minister after a judicial appeal of the decision.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Cheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Cheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.