1923098 (Migration)

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 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.
On 13 September 2017 the applicant lodged a partner (subclass 820/801) visa application and was granted a bridging (subclass E) visa. The applicant currently holds a bridging (subclass E) visa.
The applicant claims that he met the sponsor in 2014 when he was working as [an Occupation] at the property where the sponsor was living. When the sponsor was out of work, she began working for him as an assistant and [Occupation 2].
In late 2015 the applicant moved to the sponsor’s rented property. In April 2016 the parties decided to live together as a de facto couple. The parties were married [in] November 2016 and a wedding celebration was held [in] July 2017. The sponsor has two adult children from her first marriage.
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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).
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
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.
As noted above, the applicant’s substantive visa expired on 13 October 2008. The applicant made the present application for a partner visa on 13 September 2017. At the time of application, the applicant held a bridging visa (class E).
As the substantive visa last held by the applicant expired on 13 October 2008, the application for a partner visa was not made within 28 days of the relevant day. Therefore, the applicant does not satisfy Schedule 3 criterion 3001.
As all of Schedule 3 criteria 3001, 3003 and 3004 must be met, the applicant does not meet the requirements of Schedule 3.
Compelling reasons
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.
The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.
The provisions are not intended to facilitate persons who fail to comply with their visa conditions or deliberately manipulate their circumstances to give rise to compelling reasons or can leave Australia and apply for a partner visa from outside Australia.
The existence of a genuine spouse or de facto relationship between the parties, and/or the hardship suffered because of separation if the applicant was required to leave and apply for the visa from outside Australia, are not in themselves compelling reasons not to apply the Schedule 3 criteria. Consideration must be given to other factors which might also be deemed compelling to waive the Schedule 3 requirements.
As noted above, the applicant told the hearing on 21 April 2023 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 had made the ‘temporary promise’ in that application as at the time of the bridging visa application he would ‘rather be in prison’ in Australia than return to Vietnam. The Tribunal 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. The Tribunal considers the applicant’s concern about his possible return to Vietnam at the time of his bridging visa application is not of itself a compelling reason not to apply the Schedule 3 criteria.
At the hearing on 21 April 2023, the applicant’s representative provided a submission and stated that the sponsor’s daughter would worry about her mother if the applicant left the country. The applicant told the hearing that, as the sponsor’s daughter is living away from home, his assistance to her is no longer school drop-off and he now provides advice, such as encouragement to study. The Tribunal notes that the sponsor receives emotional support from her daughter and her daughter receives encouragement from the applicant. The Tribunal considers the sponsor’s daughter’s concern for her mother is not of itself a compelling reason not to apply the Schedule 3 criteria.
The applicant told the Tribunal hearings on 21 April 2023 and 6 July 2023 that the sponsor’s health would suffer if he returned to Vietnam in order to apply for a visa from offshore. The applicant stated that he provided massage for the sponsor so that she could sleep, but she also took pain-killing medications. He stated that the sponsor suffered from anxiety. The sponsor told the hearing that she relied on the applicant because he provides massage at night so she can sleep.
Sponsor’s health
The applicant provided to the Tribunal a report by [Mr B] of [Counselling provider], dated 6 May 2022. In his report, [Mr B] states that he consulted the applicant, the sponsor and the sponsor’s daughter at the same consultation. [Mr B] stated that the applicant provides the sponsor with massages to help with her ‘authorities’, which the Tribunal understands to mean ‘arthritis’. In his report, [Mr B] also states that the sponsor told him she had decided to sponsor the applicant when his visa expired. At the hearing on 21 April 2023, the sponsor stated that this was not a consideration because the applicant’s substantive visa had expired in 2008. The Tribunal notes that the bridging visa that the applicant held at the time the parties met expired in April 2014. [Mr B] stated that the sponsor was ‘sad’ when the partner visa application was refused and the applicant was ‘depressed, disappointed and very sad’.
In his report [Mr B] states that he met the parties twice, on 30 April 2022 in person and 5 May 2022 via Telehealth, and the parties suffered ‘psychological distresses’ at the thought of the applicant having to return to Vietnam. The existence of a genuine spouse or de facto relationship between the applicant and a sponsoring partner, and/or the hardship suffered from the 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.
The parties provided a letter dated 21 March 2023 from [Dr C], a consultant rheumatologist, and addressed to [Dr D] at the [Suburb 1] Family Doctors Clinic. In his letter, [Dr C] responds to the sponsor’s radiology examinations. He states that the sponsor has osteoarthritis of the hands and recommends that she attend a hand therapist. [Dr C] states that he approves of [Dr D]’s recommendation of celecobix and also suggests that the sponsor use voltaren gel, use compression on her hands during work and undergo occasional corticosteroid injections. The remedies for the sponsor’s pain as advised by [Dr C] do not specify the assistance of the applicant and are not of themselves compelling reasons not to apply the Schedule 3 criteria.
The Tribunal has considered the doctors’ reports and the evidence provided at the hearings and is of the view that these are not compelling reasons not to apply the Schedule 3 criteria.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in [Suburb 2] Victoria [in] November 2016. A copy of the marriage certificate is on file. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.
There is no evidence before the Tribunal that the parties jointly own real estate or other major assets, that they have any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.
The parties provided copies of statements from 2019 to 2023 showing a joint bank account. The transactions in the account demonstrate funds transfers to and from other accounts and some expenditure on household items. The statements also show salary deposits for the applicant as well as direct transfers from another account that he uses for payments for work as [an Occupation 1].
The Tribunal notes that some household expenditures are made from the joint account and that the gas and electricity invoices are addressed to the applicant.
The sponsor has a separate account in which her salary is deposited and which is also used for some household expenses.
The parties told the hearing on 21 April 2023 that a regular withdrawal from the joint account of $1,400 from 2019 to 2021 and of $1,420 from September 2021 onwards, was for rent for the home they currently share.
The financial aspect of the wedding celebration was discussed at the hearing on 21 April 2023. The applicant told that hearing he had paid for the wedding celebration and had borrowed funds so that he could invite as many people as possible. The sponsor told the hearing on 21 April 2023 that she had paid for the wedding with funds she received from selling property in Vietnam. In separate statements to the hearing on 6 July 2023, the parties stated that they had both paid for the wedding celebration and the Tribunal notes the change in evidence provided to it.
The Tribunal notes that the parties share their finances to some extent but considers the level of sharing of financial resources and financial information between the parties is not of itself reflective of a couple in a genuine spousal relationship.
Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
The parties provided photographs of themselves in various locations and with some friends. They also provided some pictures of the wedding party held [in] July 2017. The Tribunal is satisfied that a wedding party was held. The Tribunal gives the pictures some weight as evidence that the parties socialise with friends and have visited various sites together.
The parties provided to the Department statutory declarations in support of their relationship from [E] dated 6 September 2017, [F] dated 11 September 2017, and [Mr G] dated 5 September 2017. These statutory declarations are general in nature and the Tribunal gives them little weight.
The applicant told the hearing on 21 April 2023 that [Mr G], whose statutory declaration is dated 5 September 2017, had provided him a loan to help pay for the wedding celebration and had attended the wedding. The Tribunal notes that this loan was not mentioned in [Mr G]’s statutory declaration and that the sponsor told the hearing that she did not know [Mr G] well and he had not attended the wedding because he was busy at that time. When told that the applicant had stated that [Mr G] had attended the wedding, the sponsor stated that she had perhaps forgotten.
The parties provided to the Department a statutory declaration from [Mr H] dated 11 September 2017. In this declaration [Mr H] states that the applicant is ‘attentive’ to the sponsor’s children and has been helpful with regard to helping to manage the sponsor’s pain. He states that he attended the parties’ wedding celebration [in] July 2017.

The Tribunal considers that the evidence demonstrates that the parties are known to a group of friends, and they spend social time together, but being friends and knowing each other is not, of itself, evidence of a genuine spousal relationship.
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
There is no evidence before the Tribunal that the parties have any children together. The sponsor has two children from a previous relationship. In independent and consistent statements the parties told the hearing on 21 April 2023 that the applicant had spent time with the sponsor’s children and would drive the applicant’s daughter to school. The Tribunal notes that the sponsor’s daughter is now attending university in her second year and does not live with the parties and that the applicant’s son lives independently with his partner.
The Tribunal notes that, although the sponsor’s daughter lives independently, the parties stated that she is in regular contact. The sponsor told the hearing on 21 April 2023 that her daughter is attending university in [City] and had moved from university accommodation to the house in [Suburb 3] where the sponsor’s son and his partner live.
The Tribunal notes that the applicant was able to recall the exact dates that the sponsor’s children were born, but he could not state their current ages. He asked for time to do the calculation. The Tribunal notes that, in a spousal relationship where a spouse takes care of a partner’s children, it might be expected the adult would know the ages of the children.
In independent and consistent statements to the hearing on 21 April 2023 the parties told the Tribunal that they share household chores and they cook their own meals. The parties described their rented home as having three bedrooms and two bathrooms. They stated that no one else lives there.
The Tribunal notes the evidence regarding the nature of the household but considers it is also consistent with a household of friends.
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.
The Tribunal notes the parties were married [in] November 2016 and therefore have been married for more than six years.
At the hearing on 21 April 2023, the Tribunal asked the applicant when the parties had decided to get married. The applicant initially responded with the actual wedding date. When asked again, the applicant told the hearing that the parties had decided in December 2015 to get married and spend their lives together. He stated that, in December 2015, ‘we officially established our relationship and looked to marrying each other’. He told the hearing that they had to delay living together until April 2016 because he was living at a different address and they could not arrange accommodation at that time.
In answer to the same question, the sponsor told the hearing on 21 April 2023 that the parties had not discussed marriage before they began to live together in April 2016. She stated that she had wanted to take some time to assess the applicant before deciding to marry him. When asked why the applicant had earlier told the hearing they had discussed marriage in December 2015, the sponsor stated that her ‘secret plan’ was to agree to live with him first to see if he was ‘suitable’. The Tribunal notes that, in her statement dated 5 September 2017 provided to the Department, the sponsor stated that the applicant had moved into her house at the end of 2015 and ‘lived his own life’.
When asked the same question at the hearing on 6 July 2023, the applicant initially told the hearing that the parties started to get to know each other in 2015 but did not speak about marriage. He then stated that he had raised the matter of marriage in 2015 but the sponsor had not responded. The sponsor told the hearing on 6 July 2023 that she had not responded to a discussion about marriage because she wanted to wait to see if they were compatible.
The Tribunal notes that the parties are unclear about when they initially discussed marriage, when the applicant moved to the sponsor’s home and the relationship became serious.
The Tribunal asked the applicant why he had decided he wanted to marry the sponsor. He told the hearing on 21 April 2023 that the sponsor had complained that her house needed repairs and that she had suffered family violence perpetrated by her former husband. He told the hearing that he was concerned for the sponsor because she had suffered domestic violence in both her previous marriages and he had sympathy for her. He stated that he felt sympathy for her and had ‘started loving her’. The applicant told the hearing that the sponsor also had sympathy with his, the applicant’s, situation. When the Tribunal asked what that situation was, the applicant stated that his situation was that of a ‘refugee’ and his application for refugee status had been refused and ‘she was sympathetic to that’.
The sponsor told the hearing on 21 April 2023 that she wanted to marry the applicant because she was unwell and he would provide care for her. She also stated that her daughter had become very fond of the applicant. She had overheard her daughter praying at the Buddhist altar in their home where she stated good wishes for the applicant and not her biological father.
With regard to the parties’ different religions, the sponsor told the hearing on 21 April 2023 that the applicant ‘used to be a Catholic person’, but he had visited the Buddhist temple with her and she is not certain whether he remains a Christian. She had asked him to change religion but does not know if he changed. In separate statements to the hearing on 6 July 2023 the parties stated that the applicant wanted to support both religions. The Tribunal notes that the very similar statements at the hearing on 6 July 2023 could create the appearance that the parties had collaborated on their evidence.
The Tribunal notes that on the marriage certificate dated [November] 2016 the parties had listed different addresses, even though they had stated that they began to live together at the same address in April 2016. The applicant told the hearing on 21 April 2023 that this was because he had not updated his driver’s licence and he had referred to that address when completing documentation. The sponsor told the hearing that, although the parties were living together, ‘officially his mailing address was somewhere else’. She also stated that ‘maybe’ the applicant had been ‘too busy’ to update his address. At the hearing on 6 July 2023 the parties stated that the applicant had kept his own address until after they were married.
In independent and consistent statements to the Tribunal hearing on 21 April 2023 the parties stated that the sponsor has depression and is forgetful and she has body pain. The applicant massages the sponsor in the evenings so that she can sleep.
On the matter of providing emotional support, the applicant told the hearing on 21 April 2023 that he was concerned for the sponsor because both of her previous husbands had been violent. The Tribunal asked the sponsor what had been the problem in her previous relationships. The sponsor told the hearing that her first husband was not violent, but he was addicted to gambling and caused the family to be in a lot of debt. The sponsor stated that she had to pay his gambling debts. She stated that her second husband was a philanderer and that was the reason they separated. After the Tribunal asked why the applicant would state that the sponsor’s second husband had been violent, the sponsor told the hearing that she had initially been grateful that he had sponsored her and her children to come to Australia but when she questioned him about sending money to someone in Vietnam he became verbally abusive. This had made her depressed and sad and she could not maintain the marriage.
At the hearing on 6 July 2023 both parties stated that the sponsor’s second husband had chased her with a knife.
The Tribunal notes that, in response to questions about emotional support, neither party provided comments indicating emotional support or encouragement as would be expected in a committed, spousal relationship. The Tribunal notes that providing massage for a sore body, while physical, might be considered to be a form of support but is not of itself indicative of a spousal relationship.
The Tribunal is satisfied that the parties live together and have lived together at the same address for a period of up to seven years but considers that the evidence provided with regard to companionship and emotional support that the parties provide to each other could be that provided between friends and is not necessarily indicative of parties in a genuine spousal relationship.
Statements by the applicant’s representative
As mentioned above, at the end of the hearing on 21 April 2023 the applicant’s representative provided an oral submission. The applicant’s representative stated that the sponsor’s daughter would worry about her mother if the applicant left the country. The Tribunal notes that the sponsor receives emotional support from her daughter.
At the end of the hearing on 6 July 2023, the applicant’s representative, asked the Tribunal to note the health advice provided by the social worker. The Tribunal has noted all the health advice.
Overall assessment
The Tribunal notes the applicant’s history of lodging visa applications. After his tourist visa expired in October 2008, he applied for a protection visa in May 2011 which was refused in September 2011. At this time the applicant was granted a bridging visa and granted further bridging visas during the time that his appeals were heard. The appeals were rejected. Since arriving in Australia in 2008, the applicant has become an unlawful non-citizen on 13 October 2008, 25 September 2012, 20 May 2013 and 11 August 2014.
The Tribunal notes that the applicant had intentionally provided false information when he applied for the bridging (subclass E) visa granted on 4 August 2014 and which ceased on 11 August 2014. The bridging visa granted on 4 August 2014 was based on him leaving Australia. The applicant told the hearing that he had made a ‘temporary promise’ to leave the country but had never intended to do so. Therefore, the Tribunal is concerned about the credibility of the applicant’s statements.
The Tribunal is concerned about the credibility of the evidence provided with regard to the timing of the parties’ relationship. In her statement dated 10 August 2017, the sponsor states that the applicant moved to her home in December 2015 and ‘lived his own life’. In his statement to the Tribunal hearing on 21 April 2023, the applicant stated that the parties did not live in the same accommodation until April 2016.
The substantive visa last held by the applicant expired on 13 October 2008. As the application for a partner visa was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. As all of Schedule 3 criteria 3001, 3003 and 3004 must be met, the applicant does not meet the requirements of Schedule 3.
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.
The Tribunal has considered the evidence provided regarding possible compelling reasons for not applying the Schedule 3 criteria.
The applicant stated he had made a ‘temporary promise’ to return to Vietnam when he made an application for a bridging visa on 4 August 2014 and told the hearing on 21 April 2023 that he would ‘rather be in prison’ in Australia than return to Vietnam. The Tribunal notes that his application for a protection was refused by the Department, a review of that decision was refused and the Federal Court found in favour of the Minister after a judicial appeal of the decision. The Tribunal considers the applicant’s concern about his possible return to Vietnam at the time of his bridging visa application is not of itself a compelling reason not to apply the Schedule 3 criteria.
The applicant told the Tribunal hearings on 21 April 2023 and 6 July 2023 that the sponsor’s health would suffer if he returned to Vietnam in order to apply for a visa from offshore. As noted above, the Tribunal has considered the evidence provided in regard to the sponsor’s health and considers it does not provide compelling reasons not to apply the Schedule 3 criteria.
The Tribunal has also considered the applicant’s representative’s submission, at the hearing on 21 April 2023, that the applicant’s daughter would worry about her mother if the applicant left the country and considers that this concern, of itself is not a compelling reason not to apply the Schedule 3 criteria.
Conclusion
The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl 820.211(2)(d)(ii).
There is no evidence or suggestion the alternative criteria in cl 820.211 (2A), (2B), (5)-(9) apply.
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 Cartwright
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.

[2023] AATA 3488

20 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction