Abdelsayed (Migration)

Abdelsayed (Migration) [2020] AATA 1801 (4 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Adel Berto Sadek Abdelsayed
CASE NUMBER:  1834502
HOME AFFAIRS REFERENCE(S):          BCC2015/1319144
MEMBER:Justin Owen
DATE:4 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 04 March 2020 at 4:56pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – Federal Circuit Court remittal – applicant was not the holder of a substantive visa – some emotional and psychological hardship – no compelling reasons to waive the Schedule 3 criteria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15; Schedule 2, cls 820.211, 820.221
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

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 (the Act).
The applicant applied for the visa on 5 May 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d). The delegate found that the applicant was not the holder of a substantive visa at the time he lodged the partner visa application. The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the application, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria.
The delegate’s decision was affirmed by the Tribunal on 30 May 2016. The applicant appealed to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 26 October 2018 the Federal Circuit Court made orders quashing the Tribunal’s decision of 30 May 2016 and remitting the matter to the Tribunal for reconsideration according to law.
The applicant appeared before the Tribunal on 25 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them.
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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.
The applicant has previously provided to the Tribunal a copy of the Departmental decision record as part of the review. It indicates that the applicant entered Australia on 6 August 2007 on a subclass visa that ceased on 8 July 2009. The applicant was then granted a further subclass 572 visa which ceased on 4 September 2011. On 18 November 2010 the applicant lodged a [permanent] visa application which was refused on 30 March 2011. On 18 November 2011 the applicant then reviewed the decision with the [tribunal] which was affirmed. On 14 December 2011 the applicant lodged a request for Ministerial Intervention which was deemed inappropriate to consider on 14 May 2012. On 1 May 2013 the applicant lodged a Judicial Review of this decision. This application was withdrawn on 8 November 2013. The applicant also lodged a [permanent] visa application on 24 March 2012 which was deemed to be barred under s48b on 7 May 2012. On 20 June 2012 the applicant lodged a further [permanent] visa application which was deemed to be barred under s48b on 8 August 2012. On 25 June 2012 the applicant lodged a request for Ministerial Intervention which was deemed inappropriate to consider on 10 August 2012. On 19 September 2012 the applicant lodged a further [permanent] visa application that was deemed to be barred under s48b on 7 December 2012. On 19 September 2012 the applicant lodged a request for Ministerial Intervention which was deemed inappropriate to consider on 7 December 2012. On 18 January 2013 the applicant lodged a request for Ministerial Intervention which on 30 January 2013 was deemed inappropriate to consider. On 15 February 2013 the applicant lodged a further [permanent] visa application which was deemed to be barred under s48b on 2 August 2013. On 18 February 2013 the applicant lodged a request for Ministerial Intervention which was deemed inappropriate to consider on 16 May 2013. On 5 December 2013 the applicant lodged a [permanent] visa application which was refused on 16 May 2014. On 17 June 2014 the applicant lodged a review of the refusal with the [tribunal] which was affirmed on 16 April 2015. The applicant did not hold a visa between 16 December 2011 and 13 February 2012 as well as 19 September 2012 and 8 May 2013. The applicant then applied for this Partner visa application on 5 May 2015.
There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994.
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.
The Tribunal finds that the applicant last held a substantive visa on 4 September 2011. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.
As the Partner visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.
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, 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.
The Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria. The Tribunal noted the applicant had previously made submissions to the delegate, to the Tribunal in his 2016 review as well as making further written submissions to the Tribunal the previous day outlining a range of reasons that might constitute compelling reasons. The Tribunal stated it would go through each compelling reason that had been submitted at the hearing and invite the applicant to submit any further reasons that he wished the Tribunal to consider that might be considered compelling for a waiver of the Schedule 3 criteria.
The Tribunal noted that the applicant had submitted that he and his wife, the sponsor, would suffer emotional and/or psychological hardship should he have to depart Australia to lodge a Partner visa application from offshore. The Tribunal has considered these submissions in the context as to whether they represent a compelling reason for a waiver of the Schedule 3 criteria.
In relation to the emotional and psychological hardship to himself, the applicant stated that he had been under stress for a significantly long time whilst his visa application was being assessed. He stated that he has been unable to work for years which had undermined his self-worth. He said in his culture the man was expected to be working and making a meaningful financial contribution to the household. He stated he had been in Australia since 2007 and essentially had been living in uncertainty since this time.
The Tribunal accepts that the applicant faces a degree of stress from his current migration status and accepts that the delay in obtaining a successful outcome has taken a toll upon him. The Tribunal accepts the applicant is frustrated with his inability to seek gainful employment and notes that he has twice unsuccessfully applied for work rights on his Bridging visa. The Tribunal considers however that this long delay which has precipitated this situation has been a result of the applicant choosing to avail himself of multiple attempts to overturn decisions of the delegate to refuse him a permanent visa that will allow him to remain in Australia. The stress the applicant has faced from the long delay in obtaining an outcome in his quest for a permanent visa is an outcome of the applicant’s desire to explore multiple avenues to remain in Australia rather than the result of Departmental intransigence. The applicant has had the ability to depart Australia and remove himself from the visa review process at any time over the past eight years since he last held a substantive visa. The Tribunal notes that there is no evidence – or claim made – that the applicant has been receiving professional psychological treatment relating to his psychological or mental health. The Tribunal does not consider the visa and visa review process – and the stress it has caused the applicant – on the facts before it are compelling reasons for the Tribunal to waive the Schedule 3 criteria.
The Tribunal has considered the emotional and psychological hardship that will be caused to the applicant in the future if the applicant is required to depart Australia and whether this constitutes a compelling reason for it to waive the Schedule 3 criteria. The Tribunal accepts there will be some emotional and psychological hardship to both parties if the applicant is compelled to depart Australia and lodge a new Partner visa application from offshore. The Tribunal accepts physical separation – particularly after a relationship over some years – will be difficult for both parties. The Tribunal notes that the parties can remain in close communication with each other via telephonic communication and social media where they can provide each other with assurance as well as emotional and psychological support. The Tribunal accepts this communication only mitigates the emotional and psychological hardship the applicant and sponsor will face if the applicant departs Australia so far. The Tribunal also recognises, as discussed further in this decision, the parties have a strong desire to conceive a child and any absence will impact upon them emotionally in this regard. The Tribunal does not however consider these circumstances to be compelling reasons for it to waive the Schedule 3 criteria. The Tribunal notes there is still an enormous emotional benefit derived from the applicant and sponsor being able to remain in close and constant communication which each other via telephonic and social media communication. The Tribunal furthermore recognises that the parties can choose to meet up from time to time in a third nation (given the sponsor’s stated reticence in returning to Egypt) should they choose to whilst any new off-shore partner visa application is being assessed. The Tribunal accepts there will be a degree of hardship on both the parties. The Tribunal does not however consider the emotional and psychological hardship the applicant and sponsor may face in the future if the applicant is required to depart Australia is, on the facts before it, a compelling reason for it to waive the Schedule 3 criteria.
The applicant and sponsor have both submitted the stress and hardship that have been imposed upon the sponsor – and would be exacerbated by the applicant’s return to Egypt - are reasons for the Tribunal to waive the Schedule 3 criteria. The Tribunal accepts the last six years have been challenging for the sponsor who has clearly worked diligently in attempting to build a future for her and her husband the applicant. The sponsor has studied and achieved a Certificate III as well as a Diploma in childcare and has worked full-time hours as a casual in the sector since August last year. She is paying over $2,000 per month on the mortgage which is over the home the applicant and sponsor share. [Details deleted] bring their own array of challenges both emotional and financial. The Tribunal has a great deal of admiration for the sponsor who in its opinion his displayed great stoicism throughout her husband’s visa process.
The sponsor and applicant have also submitted this stress upon the sponsor has had an adverse impact on the applicant’s [health condition]. The Tribunal accepts conception has been an important priority for the sponsor (and the applicant) and the argument of the applicant and sponsor is that the ongoing stress of the applicant’s visa situation – and any potential departure to Egypt – has meant ongoing [health] problems for the [sponsor].
The Tribunal has considered these submissions as to whether they are compelling reasons for it to waive the Schedule 3 criteria.
The Tribunal accepts that the sponsor has been stressed by the challenges faced by the applicant pertaining to his immigration status. The Tribunal accepts the sponsor may feel further stressed should the applicant’s application be refused. That is understandable given the circumstances, including her claims concerning her parents and their threat (as claimed by the sponsor and applicant) to essentially disassociate themselves from both herself and the applicant should the applicant be compelled to return to Egypt and lodge a Partner visa application from offshore. The Tribunal on the evidence before it however does not consider the sponsor’s emotional and psychological state and any further stress she will face if the applicant returns to Egypt is a compelling reason for it to waive the Schedule 3 criteria.
The Tribunal notes from the oral testimony of the applicant and sponsor that they see the sponsor’s parents multiple times each week including each Sunday at church. They live about five minutes’ drive away from each other. The applicant and sponsor both attested to the fact that they currently have a very good relationship with the sponsor’s parents. The applicant stated in oral testimony that the sponsor’s father treats him like a son. The sponsor’s parents pay a third of the sponsor’s mortgage payment each month. On the evidence before the Tribunal it does not accept the applicant and sponsor’s claim that the sponsor’s parents will essentially disown their only daughter and disassociate themselves from her life should the applicant’s onshore Partner visa application be refused and he is compelled to reapply for a Partner visa from offshore. No corroborative evidence has been submitted by the applicant from the sponsor’s parents that would indicate this was their intention in any way. The Tribunal accepts they will be disappointed. It does not on the evidence before it accept they will disassociate themselves and essentially punish their only daughter. Whilst the Tribunal accepts the sponsor will be stressed – and indeed face increased stress – by the requirement for the applicant to depart Australia and lodge a Partner visa application from offshore, it does not however consider this stress will be exacerbated by her wholesale rejection by her own parents. The Tribunal gives the claim little weight.
The Tribunal notes the various claims that have been made by the applicant concerning the psychological state of the sponsor. Again, the Tribunal accepts that she has been stressed by the applicant’s situation and will be further stressed should he be required to depart Australia. The Tribunal does not however consider the stress caused by such a situation is either unusual or particularly onerous. Many thousands of offshore Partner visa applications are made each year. The Tribunal notes that the applicant is not currently receiving any psychological or mental health treatment. There is no history of psychological treatment or a formal Mental Health Plan either past or current. The applicant and sponsor can remain in constant contact with each other and the applicant can continue to provide emotional and psychological support to the sponsor whilst his offshore Partner visa application is assessed and actioned. Whilst the Tribunal accepts the sponsor does not wish to return to [Egypt], the sponsor nevertheless retains the option to meet up with the applicant either in Egypt or a third nation. The Tribunal does not consider the stress the sponsor has previously faced and will potentially face if the applicant returns to Egypt are compelling reasons for it to exercise the waiver.
[The sponsor’s medical problems deleted]. The Tribunal considers the sponsor’s [medical] problems are not a compelling reason for it to waive the Schedule 3 criteria.
The Tribunal noted the evidence of the applicant and sponsor concerning the damage that could be done to the relationship between the applicant and the sponsor’s parents as well as the damage done to the relationship between the sponsor and her parents if the applicant had to depart Australia and lodge an application offshore. The Tribunal has also considered the damage that may be done to the applicant himself if the relationship between the sponsor and her parents is damaged by his return to Egypt. The Tribunal has considered whether these may be compelling reasons for the Tribunal to exercise the waiver of the Schedule 3 criteria.

The Tribunal notes the testimony the sponsor has provided to the 2016 Tribunal hearing as well as the February 2020 hearing pertaining to the damage that she claims will be caused to the relationship with her parents should the applicant be compelled to depart Australia. The Tribunal has also considered the applicant’s testimony.
The Tribunal notes the submissions that the applicant has previously made concerning the relationship and the sponsor’s parents. It was claimed that the sponsor’s parents were concerned the applicant might have to return to Egypt so were reluctant to support the relationship turning into a marriage due to his lack of residency. It was claimed the sponsor’s parents were concerned the sponsor might return with the applicant to Egypt. It was claimed that the sponsor’s parents agreed to the marriage only after it was explained that the applicant would not have to return to Egypt but could apply for a Partner visa onshore in Australia.
The sponsor and applicant each discussed the sound relationship that currently exists with the sponsor’s parents. The relationship on the evidence is sound from both the individual perspective of the applicant and sponsor with the sponsor’s parents as well as their relationship with the sponsor’s parents as a couple.
The Tribunal accepts the evidence of the applicant and sponsor that they both currently enjoy a good relationship with the sponsor’s parents both individually and together as a couple. They see the sponsor’s parents on multiple occasions each week. The sponsor’s parents are paying a third of the mortgage on the property that the sponsor and applicant are living in. The applicant in oral evidence said the sponsor’s father treats him like a son. The Tribunal is satisfied that a sound and long-term relationship exists between the parties.
The applicant and sponsor have each claimed that this relationship will immediately disintegrate if the applicant is required to depart Australia. It has been submitted that the applicant remaining in Australia was essentially a ‘condition precedent’ (the Tribunal’s words) for the sponsor being permitted to marry the applicant. It is claimed the sponsor’s parents will essentially end their relationship with both their daughter the sponsor and the applicant if his visa is refused and he is required to depart Australia. The sponsor explained what she and the applicant have claimed is the reasoning for such actions.
The applicant said in oral testimony that the sponsor will lose her relationship with her parents. He said that this was because the sponsor’s parents initially objected to the applicant as a husband because he lacked permanent residency. He said that the sponsor had defied her parents in marrying the applicant despite his migration status. He said that the sponsor’s parents will tell their daughter that she didn’t listen to them concerning her desire to marry the applicant and will also cut off their financial support of the sponsor’s mortgage which amounts to $1,100 per month. The applicant claims the sponsor will then be unable to meet her mortgage payments – of which the sponsor’s father is guarantor – and the sponsor and applicant will lose their house.
The sponsor provided similar testimony. She stated that when she had decided to marry the applicant her parents were upset and they were worried for her. She said she tried to talk to them but they had said they would cut off their relationship with her if the applicant had to depart Australia. She stated that she told them – and had been informed as such by both migration advisers and the Department – that the applicant would be able to apply for a Partner visa onshore.
The Tribunal has considered the applicant and sponsor’s submissions as to the damage that will be caused to the relationship between the sponsor’s parents and themselves both individually and as a couple. It does not however find that they are compelling reasons for it to waive the Schedule 3 criteria.
The Tribunal notes the paucity of evidence pertaining to the sponsor’s parents and the specific claim they will essentially cut off all contact with the sponsor, their only daughter and the applicant. The applicant and sponsor have both attested to the good relationship that exists between themselves and the sponsor’s parents today. The applicant said he is treated like a son by the sponsor’s father, who is also the guarantor and partial funder of the sponsor’s mortgage. They visit each other multiple times each week. In the absence of any corroborative and independent evidence, the Tribunal does not accept that the sponsor’s parents will excise their daughter the sponsor and their son-in-law the applicant from all future contact. The Tribunal accepts they will be very disappointed if the applicant is compelled to return to Egypt and lodge an offshore Partner visa applicant. The Tribunal accepts it will cause them a degree of hardship as well as the sponsor hardship from an emotional perspective. The sponsor and applicant have both clearly stated that the sponsor will remain in Australia if the applicant is compelled to depart Australia. The Tribunal does not accept the claims that the sponsor’s parents will remove their financial support for the sponsor’s mortgage and essentially disown their own daughter. The Tribunal accepts they had reservations about the marriage some years ago but clearly in the years that have followed a good and convivial relationship has developed between the applicant, sponsor and the sponsor’s parents. The Tribunal similarly is not satisfied that the sponsor’s parents will end their relationship with the applicant due to the refusal of his onshore visa application. As the applicant said in evidence, he is like a son to the sponsor’s father. The Tribunal for these reasons does not accept the sponsor’s parents will end their relationship with the sponsor and applicant either individually or with them cumulatively as a couple. The Tribunal has taken into account the potential damage that may be caused to the relationship between the sponsor and her parents as well as the relationship between the applicant and the sponsor’s parents as well as the relationship between them collectively. The Tribunal is not satisfied of the veracity of the claims of the applicant and sponsor in relation to this matter. The Tribunal on the evidence before it does not consider they are compelling reasons for it to waive the Schedule 3 criteria.
The Tribunal has considered the claim by the applicant and sponsor that the sponsor will be left alone should he be compelled to depart Australia. The Tribunal accepts the sponsor has no desire to return to Egypt with the applicant. The Tribunal accepts the subsequent physical absence will cause some hardship to the sponsor but notes they can remain in contact and provide each other with at least some emotional support via modern communications. The Tribunal is not however convinced on the evidence before it that the sponsor will be ‘left alone’. The Tribunal does not accept the claims that the sponsor will be abandoned by her parents and subsequently is not convinced that she will be cut off from the love and support she has received from them for many years. The Tribunal also notes that she has two brothers that also reside close by. The Tribunal is not satisfied the applicant will be cast adrift by either her family as has been claimed. The Tribunal on the evidence before it does not consider the claim the applicant will be ‘left alone’ is a compelling reason for it to waive the Schedule 3 criteria.
Similarly as discussed previously, the Tribunal does not accept the claim that the sponsor will lose the family home of the applicant and sponsor if he is required to depart Australia. The Tribunal is not satisfied on the evidence before it that the sponsor’s father will end either his ongoing financial support of the sponsor’s mortgage or his role as guarantor. The Tribunal also notes that the sponsor is in full-time, albeit casual, employment in the childcare sector. The applicant has been unable to make any financial contribution to the purchase of property or ongoing mortgage payments since his $63,000 contribution to the purchase of their previous home in Campbelltown. The Tribunal is of the opinion the sponsor’s lender would not have lent the sponsor the funds to purchase their current property (admittedly with her father as guarantor) without being satisfied the sponsor was going to be able to meet the mortgage repayments. The Tribunal notes that both the mortgage and the title deeds of the property are entirely in the name of the sponsor. The Tribunal is not satisfied on the evidence before it that the applicant’s departure offshore will impact upon the ability of the sponsor to meet her mortgage obligations and retain the property which is in her name. The Tribunal does not consider the claims pertaining to the potential loss of the sponsor’s home are a compelling reason for it to waive the Schedule 3 criteria.
The Tribunal has considered any other financial hardship in relation to both the applicant and sponsor that may be caused by the departure of the applicant offshore and whether this would represent a compelling reason to exercise the waiver. Given the applicant has not been in paid employment due to his migration status the last four years, the Tribunal considers any financial hardship to be caused to both parties if the applicant is required to depart Australia to be negligible. In relation to the applicant, he has not been in paid employment for almost four years due to a lack of work rights on his Bridging visa. Any requirement to depart Australia will not result in a loss of paid employment for the applicant. The applicant is a licensed builder and painter. The Tribunal sees no reason why he would not be able to seek gainful employment with such skills in Egypt and re-enter the workforce whilst he submits an offshore Partner visa application. The Tribunal furthermore notes that the sponsor, who is in full-time employment, can choose to provide some financial support to the applicant whilst he is offshore if she so desires. In relation to financial hardship and the sponsor, the Tribunal notes that she is the sole wage earner in their home. With the support of her parents, her full-time job funds the various living costs on top of a majority of the mortgage. The Tribunal sees no reason why this will not continue if the applicant departs Australia. The Tribunal notes that the sponsor is also able to access government assistance should she face financial hardship. The Tribunal has considered the claims of financial hardship but does not consider they represent compelling reasons for it to waive the Schedule 3 criteria.
The applicant and sponsor have each raised the issue of the advice they received from previous representatives and the Department as a reason to waive the Schedule 3 criteria. Each has submitted that they received erroneous and incorrect advice on a range of migration matters, including the lodgement of a Partner visa application onshore whilst in Australia. The applicant and sponsor both stated that they believed a Partner visa application could be lodged in Australia and the applicant would not need to return to Egypt. They stated that this was what the sponsor’s parents had believed based on their information. The applicant’s representative furthermore informed the Tribunal that the applicant’s previous three migration agents have all been struck off by the Office of the Migration Agents Registration Authority (OMARA). The Tribunal accepts that the applicant has previously engaged poor quality representation and notes the issue more generally of sub-standard and incompetent representation in this sector. The Tribunal does not however accept that these claims concerning advice represent a compelling reason for it to waive the Schedule 3 criteria. Any advice the applicant and sponsor received stating the applicant could lodge a Partner visa onshore was technically correct. An application can be lodged and indeed was so. If the applicant had been holding a substantive visa or within 28 days of doing so it would have been assessed by the Department without the applicant required to depart Australia. If not, the applicant was required to show compelling reasons as to why the Schedule 3 criteria should be waived. This has been the process that has been followed. The Tribunal furthermore notes that visa holders have an obligation to make themselves aware of the conditions attached to their visa. The Tribunal does not accept that any misunderstanding by the applicant and the sponsor – and the provision of poor quality advice to the applicant and sponsor – is in the circumstances reason for it to waive the Schedule 3 criteria.
[Details deleted].
[Details deleted].
[Details deleted].
[Details deleted].
[Details deleted].
[Details deleted].
The applicant stated to the Tribunal that he cannot live without the sponsor and his life will be ruined. The sponsor has similarly submitted that she needs the applicant in her life and desires he remain with her in Australia. Both the applicant and the sponsor at the hearing continued to impress upon the Tribunal at the hearing the duration, strength and mutual commitment of their relationship. The applicant and sponsor have provided evidence concerning the start of their relationship and their journey through until today. The Tribunal has considered their relationship in its own right as a reason for the Tribunal to waive the Schedule 3 criteria. The applicant says that he and the sponsor commenced a relationship in 2014 and became married in 2015. They previously purchased an apartment together in Campbelltown which involved both parties making a meaningful contribution to the purchase. The long term, genuine and continuing nature of the spousal relationship between the applicant and sponsor – and the parties’ emotional and psychological reliance upon each other - was articulated in support of the application and in favour of an exercise of the waiver by the parties. The genuine nature of their relationship was expressed by the applicant and the sponsor. The Tribunal has reviewed a wide range of materials the applicant provided to the delegate and the Tribunal concerning his relationship with the sponsor. The evidence includes telephone bills; a wide range of photographs of the applicant and sponsor with family and friends; bank statements; a NSW Certificate of Marriage; and utilities bills. The sponsor and applicant have submitted they have been and continue to be in a genuine and continuing relationship. The Tribunal accepts on the evidence that the applicant and sponsor are known to each other and there has been a married relationship between the parties during the last five years. The Tribunal accepts that the parties have provided each other with support during their relationship and continue to do so. The Tribunal is satisfied that the spousal relationship between the applicant and sponsor is genuine and both parties are committed to their relationship. The Tribunal notes that a criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor. The definition of a spousal relationship relevantly requires that the relationship be “genuine and continuing”. Accordingly, the existence of a genuine and continuing spousal relationship is itself a criterion for the grant of a partner visa. A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa. A genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria. The Tribunal has considered this evidence and the circumstances of the parties’ claimed relationship and is of the opinion that there is nothing in the individual circumstances of their particular case that should compel the Tribunal to not apply the Schedule 3 criteria. The Tribunal is not satisfied, on the evidence before it concerning the relationship of the sponsor and applicant, that there are compelling reasons not to apply the Schedule 3 criteria.
[Details deleted].
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).
The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, 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.
Justin Owen
Senior 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.

[2020] AATA 1801

4 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness