2216826 (Migration)

[2023] AATA 1925

2216826 (Migration) [2023] AATA 1925 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Tony Tran

CASE NUMBER:  2216826

MEMBER:Margie Bourke

DATE:13 June 2023

PLACE OF DECISION:  Melbourne

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

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

Statement made on 13 June 2023 at 2:42pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – not holder of substantive visa a time of application – application made more than 28 after last substantive visa ceased – compelling reasons for not applying criterion – long-standing relationship – statutory declarations from applicant, sponsor and sponsor’s relatives – relationship as primary male figure for sponsor’s grandchild – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211, Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 January 2016 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.

3. In a decision dated 9 February 2017, the Department delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because the delegate found the applicant did not satisfy the Schedule 3 requirement, and that there were no compelling reasons to waive the Schedule 3 requirement.

4. The tribunal, differently constituted, in a decision dated 10 October 2017, affirmed the decision of the Department.

5. The judgement of the Federal Circuit and Family Court of Australia (Division 2) dated [October] 2022, found the decision of the Tribunal dated 10 October 2017 was affected by jurisdictional error, and the matter was remitted back to the Tribunal requiring it to redetermine the review. The judgement recorded the two errors by the Tribunal; firstly that the Tribunal did not engage in an active and intellectual process in relation to an issue that was capable of being dispositive of the Tribunal’s review, namely the claim that the sponsor’s son-in-law would not engage in treatment for his depression and alcoholism, and secondly the Tribunal did not put the applicant on notice in relation to determinative issue in the review, namely whether the sponsor might be able to relocate from Melbourne to Sydney in order to assist her daughter.

6. The applicant was invited to attend the hearing, but prior to the hearing the Tribunal received a substantial and relevant submission from the applicant’s representative which included a statutory declaration from the applicant, a statutory declaration from the sponsor and four statutory declarations from the sponsor’s daughter [Ms A], the sponsor’s daughter [Ms B], the sponsor’s sister [Ms C], and the sponsor’s brother-in-law [Mr D], in addition to the bank statements, payslips, tenancy agreement, utility bills, superannuation documents, photos and travel documents.

7. The Tribunal has considered the information provided to the Department, the previous Tribunal, and the information only available to it including the current submissions. The Tribunal has considered the information contained in the Department’s decision record dated 9 February 2017. The Tribunal is satisfied it can make a decision favourable to the applicant based on the information before it, without proceeding to a hearing pursuant to s.360(2)(a) of the Act.

8. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

9. 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).

10. 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

11. 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.

12. The Tribunal has noted the submissions from the applicant’s representative dated 5 June 2023, in which at page 6 the representative states, “it is not in dispute that the applicant does not meet Schedule 3 criteria of the Migration Regulations 1994 (The Regulations) as the applicant was not a holder of a substantive visa at the time of application.” The Tribunal is satisfied based on the information contained in the Department’s decision record dated 9 February 2017 that the applicant arrived in Australia on 24 May 2015 as the holder of a transit visa which ceased on 27 May 2015. The Tribunal is satisfied based on the submissions from the applicant’s representative and the information in the Department’s decision record, and other information in the Department and Tribunal files provided by the applicant, that the applicant did not hold a substantive visa after the transit visa ceased on 27 May 2015. The Tribunal is satisfied that the application for the partner visa, which is the subject of this review was lodged on 25 January 2016.

13. The relevant day, is the last day the applicant held a substantive visa, and in this review the relevant day is 27 May 2015.

14. The application for the visa was made on 25 January 2016 and was not made within 28 days of the relevant day, being 27 May 2015.

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

    Compelling reasons

16. 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.

17. 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.

18. The Tribunal has considered the information before it, and in particular has considered the statutory declarations of the applicant dated 5 June 2023, the statutory declaration of the sponsor dated 5 June 2023, the statutory declaration of the sponsor’s daughter [Ms B] dated 4 June 2023, the statutory declaration of the sponsor’s daughter [Ms A] dated 4 June 2023, the statutory declaration of the sponsor’s sister [Ms C] dated 5 June 2023 and the statutory declaration of the sponsors brother-in-law [Mr D] dated 5 June 2023. The Tribunal is satisfied that the applicant and sponsor were married on 19 December 2015, and have continued to reside together as husband and wife at the present time. The Tribunal is satisfied that the applicant and the sponsor have been a long-standing relationship, namely 7 ½ years since the application for the partner visa, which is the subject of this review, was lodged.

19. The Tribunal has considered the information before it and is satisfied that [Ms B]’s husband was troubled by depression and alcoholism. The Tribunal accepts that [Ms B] and her husband resided interstate. The Tribunal is satisfied that the sponsor gave [Ms B] as much support with this difficult relationship as she could. The Tribunal is satisfied that [Ms B] gave birth to the sponsor’s grandson, [Master E] in [Year], and in 2019 [Ms B] and [Master E] moved to Victoria to reside with the applicant and sponsor. The Tribunal is satisfied that [Ms B]’s partner took his own life while living in Sydney in 2020. The Tribunal accepts that while the sponsor went to Sydney for the funeral, the child [Master E] remained with the applicant. The Tribunal accepts that the relationship between the child [Master E] and the applicant is an important and irreplaceable relationship in the child’s life.

20. The Tribunal accepts that subsequently in 2021 [Ms B] and [Master E] moved to live with [Ms B]’s sister [Ms A]. The Tribunal accepts that the applicant has a very strong bond with [Master E] who has now commenced primary school, and the applicant is the main male model in the child’s life. The Tribunal is satisfied that [Ms B] and [Master E] visit the applicant and sponsor, or alternatively the applicant and sponsor visit [Ms A], [Ms B] and [Master E], every weekend. The Tribunal is satisfied based on the information contained in the statutory declarations that the applicant is a loved and essential part of the sponsor’s immediate family. The Tribunal accepts that if the applicant was required to depart Australia and lodge the application for the visa offshore that the sponsor and her daughters, particularly [Ms B], would experience emotional hardship, but her grandson, [Master E] would experience loss and hardship that would be hard for the other family members to explain to him, or to replace.

21. The Tribunal is satisfied that the long-standing relationship between the applicant and sponsor, in the circumstances where the applicant also has a very important relationship with his grandson whose father is deceased, amounts to compelling reasons for not applying the Schedule 3 criteria.

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

23. The Tribunal finds the applicant meets the requirements of cl.820.211(2)(d).

24. 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

25. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

    Margie Bourke
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.