1924200 (Migration)

[2021] AATA 1957

1924200 (Migration) [2021] AATA 1957 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924200

MEMBER:P. Maishman

DATE:6 April 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(d) of Schedule 2 to the Regulations.

In relation to the secondary applicants, the Tribunal remits the application for the visas to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 06 April 2021 at 4:56pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – compelling reasons – divorced from first husband – married to sponsor since 2017 – genuine relationship – adverse emotional and financial consequences if required to apply offshore – best interests of children – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Schedule 3, cl 820.211(2)(d)(ii)

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) applied for the visa on 20 March 2018 on the basis of her relationship with her sponsor, [Mr A]. 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 applicant did not satisfy cl.820.211(2)(d)(ii) because she did not satisfy the Schedule 3 criteria and there were not compelling reasons for not applying the criteria.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 17 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsor, [Mr A].

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file containing the visa application and documents provided to the Department in respect of the application.

9. The delegate’s decision record, provided to the Tribunal by the applicant, details that the applicant first arrived in Australia [in] August 2011 as the holder of a Student visa with her then dependent spouse and dependent children (the second and third named applicants). She was granted two extensions and her Student visa ceased on 31 July 2015. The applicant was nominated by an employer in applications for Regional Sponsored Migration Scheme visas on 29 July 2015 (refused on 23 March 2016) and 16 April 2016 (withdrawn at applicant request). The applicant made a separate application to the Tribunal on 20 March 2018 (AAT No. 1807548 - not yet constituted) in respect of a Protection visa application made in the names of the three applicants for this visa on 23 June 2017, that was refused by a delegate on 27 February 2018.

10. The Tribunal received additional evidence from the applicant on 11 and 12 August 2020. The Tribunal observed a lot of the documentary evidence provided appeared to go to the assessment of the genuineness of the applicant’s relationship with the sponsor. The Tribunal explained to the applicant the instructions contained in the President’s Direction – Conducting Migration and Refugee Reviews that the Tribunal restrict its review to the matters decided by the delegate.

11. The delegate has not assessed the nature of the parties  relationship to determine if the applicant is the spouse or de facto partner of the sponsor as defined in s.5F and s.5CB of the Act.  

12. The Tribunal had regard to the applicant and sponsors marriage certificate contained on the Department’s file showing they married [in] October 2017; the details provided in the application form about the development of the relationship; joint bank account statements; correspondence addressed to each of the parties at the same address; tenancy agreements and utility invoices along with statutory declarations from third parties supporting the existence of the applicant and sponsors relationship.

13. The Tribunal accepts, for the purposes of this decision only, that the applicant and sponsor has been in a spousal relationship with each other at least since they married on 24 October 2017.

14. The applicant and the sponsor gave evidence separately at hearing. The Tribunal found them to be credible and honest witnesses and accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below.

    Section 376 certificate

15. After the hearing the Department gave the Tribunal documents with notification that s.376 of the Act applied to those documents because disclosure of the material would be contrary to the public interest in that it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal wrote to the applicant on 10 December 2020 providing a copy of the certificate and inviting her to comment on its validity and the favourable exercise of the Tribunal’s discretion to disclose that material. The Tribunal disclosed the gist of the information being that her divorce from her previous husband was fake, that she was still married to her previous husband, and that her previous husband was supportive and complicit for their children to secure permanent residence in Australia. The Tribunal invited the applicant to comment on that adverse information. The Tribunal also asked the applicant to comment on the notation in her passport issued [in] 2020 recording her husband to be [Mr B].

16. The Tribunal received a response on 15 January 2021. In relation to her passport, the applicant said her previous passport was due to expire and she was unable to travel to Sydney or Canberra because of the Covid-19 restrictions to attend an embassy. Her only option was to room new her passport online. Changes of details such as her husband’s name were not possible through the online portal. Information[1] from the Pakistan Ministry of Interior confirm this to be the case. The Tribunal accepts the applicant was unable to modify the information already held on passport when she obtained a new passport. The Tribunal attributes no weight to the applicant’s previous husband’s details remaining on her passport.

    [1] Supporting Documents | Online-Passport (dgip.gov.pk)

17. The applicant denies the information contained in the documents to which the s.376 certificate applies is true. The applicant said her divorce is genuine was done at the Pakistani Consulate general in Sydney and registered at her local union Council in Sialkot. She said in her religion paperwork is not required and divorce is simply obtained if the husband says three times “I give divorce to my wife”. In her religion the punishment for a woman having an extramarital relationship is death by stoning. The applicant denies her then husband is supportive and complicit so her children can get a permanent Australian visa. The applicant provided a copy of a police order dated [June] 2015 restraining her then husband from contacting or approaching her for 24 hours. The applicant says her son’s concentration at school was affected by the poor relationship between her and their father.

18. The Tribunal accepts the applicant’s response about the information covered by the s.376 certificate. 

19. The Tribunal considers that the Departments notification dated 28 October 2020 that disclosure of the material referred to in that certificate would be contrary to the public interest is valid. The notification is signed and dated.

20. The Tribunal attributes no weight to the information covered by the certificate because the information cannot be tested, and the applicant has provided a plausible explanation refuting the information.

21. The Tribunal has restricted its review to the issues decided by the delegate. The issue in the present case is whether there are compelling reasons to waive the requirement to meet the Schedule 3 criteria.

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

22. 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).

23. 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

24. 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.

25. The delegate’s decision record outlines the applicant’s visa history and says she last held a substantive Student visa on 31 July 2015. The applicant was in Australia and not the holder of a substantive visa when she lodged this Partner visa application on 20 March 2018. The applicant agreed the visa history contained in the delegate’s decision record is correct.

26. The Tribunal observes the applicant applied for a number of other visas after her Student visa ceased and was granted bridging visas accordingly.

27. The Tribunal finds that the applicant last held a substantive visa when her Student visa ceased on 31 July 2015. This is the ‘relevant day’ as defined in criterion 3001(2)(c)(i).

28. The applicant’s Partner visa application was made on 20 March 2018 and the Tribunal finds this is more than 28 days after the relevant day.

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

    Compelling reasons

30. 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.

31. 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.

32. The Tribunal had regard to the applicant’s letter to the Department dated 13 March 2019; her combined submission to the Tribunal dated 12 August 2020 and her oral evidence.

33. The applicant recounted that her marriage to her first husband was arranged by her family. Despite the relationship being unhappy they had two children. She was unable to divorce in Pakistan. The applicant first arrived in Australia on a Student visa without her children or then husband. She did not have a good relationship with her then husband and her children were looked after by her parents. She was in Australia for about 4 months and was unable to bring her children to Australia without her husband’s permission. She included her then husband and children in her application in order to have her children join her. The applicant is Muslim from Pakistan and her new husband, the sponsor, is Sikh from India. The applicant claims her conservative family do not approve of her new relationship and she has sinned in their eyes. The applicant fears she will be persecuted or killed if she was to return to Pakistan. The Tribunal queried why her family, who held such conservative views, would look after her children thereby assisting her to come to Australia, without her husband, to study. The applicant explained because she was married her parents considered she was protected from becoming involved with someone of whom they did not approve.  The applicant said her children had been living and studying in Australia for more than eight years. They are familiar with the Australian culture and school system. They are both in accelerated study and would not be able to assimilate back in to the Pakistani culture. They do not understand the Pakistani language while. They see Australia as their home. The sponsor has taken on a parental role for the children, and although he is not very strict with them, he plays and talks to them about manly things. The applicant said that her boy’s father is still in Australia but has very little to do with them. The applicant says she has been married to the sponsor since 2017 and their life together is in Australia. The applicant said she fell pregnant to the sponsor however underwent a termination mainly due to uncertainty about her future. The applicant says the financial burden of making another Partner visa application from offshore would be onerous. She estimates the cost to be close to $12,000 plus travel expenses. She would not have a job and the sponsor could not support her as well as raise the new application fee. She has no one to look after her in Pakistan.

34. The sponsor gave evidence that he pays child support for his ex-wife and two children. If the applicant had to go back to India or Pakistan he would struggle financially. He said the second and third named applicants are not supported by their father who is irresponsible. He would not be able to obtain work if he left Australia with his wife. He is fearful that he would be targeted because of his religion.

35. The Tribunal accepts the applicant and sponsor have been in a long-term relationship. The Tribunal accepts there would be a significant financial burden on the family if the applicant was required to go offshore to make a visa application. The Tribunal accepts the second and third named applicants schooling and cultural development has been mostly in Australia. They are familiar with the Australian way of life, the language, and the schooling system. If the applicant was required to go offshore to make a visa application the children would be required to reintegrate into a schooling and cultural system with which they are not familiar. This would have a significantly adverse effect on the second and third named applicants’ academic and emotional development. The Tribunal is satisfied there would be a significantly adverse impact on the applicant and her children’s emotional welfare if the applicant was required to go offshore to make a visa application. This adverse impact is a compelling reason not to  apply the Schedule 3 criteria.

36. 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).

37. 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.

38. In relation to the secondary applicants, the Tribunal remits the application for the visas to the Minister to consider the remaining criteria for the grant of the visa.

    DECISION

39. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2)(d) of Schedule 2 to the Regulations.

    In relation to the secondary applicants, the Tribunal remits the application for the visas to the Minister to consider the remaining criteria for the grant of the visa.

    P. Maishman
    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.