Adam (Migration)

[2019] AATA 2677

Adam (Migration) [2019] AATA 2677 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francois Adam

CASE NUMBER:  1701863

HOME AFFAIRS REFERENCE(S):           BCC2016/2972557

MEMBER:M. Edgoose

DATE:27 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 27 May 2019 at 2:48pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – emotional hardship – sponsor’s mental health – issues with the medical evidence – financial hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MXYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

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 (the Act).

2. The applicant applied for the visa on 6 September 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 (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 visa applicant did not satisfy cl.820.211(2)(a) and cl. 820.211(2)(d).

4. The applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Firdos Awadella Ahmed the sponsor, Khames Jumma and Mohamed Abdalla Khalil Abaker both friends of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Sudanese Arabic and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

7. 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).

8. 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.

9. 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.

10. The applicant last held a substantive visa on 13 May 2015. This application was filed on 6 September 2016. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

11. 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.

12. 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].

13. 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.

14. Overall the Tribunal has had regard and taken into consideration the documents on both the Tribunal and Department files. It reviewed all the evidence provided at hearing by the various witnesses on behalf of the applicant.

    Emotional Hardship

15. The Tribunal has had regard to the migrations agents submission dated 10 April 2019 (AAT Folio 221) which mentioned the sponsor suffers from mental health issues, depression and anxiety; that she requires the applicant to remain in Australia to support the sponsor during her fight with mental health issues; and that the children would be affected if the applicant was to depart Australia.    

16. The Tribunal has had regard to the letter from Dr Karen Linton at Joslin Clinic (AAT Folio 237) dated 1 December 2016 that stated the following about the sponsor, “I am writing in support of my patient Mrs Firdos Ahmed aged 44 yrs who arrived in Australia in 2011 as a Sudanese refugee. Firdos has been a patient of mine since 2004. Firdos has six children and been struggling as a single mother for many years and suffering from moderate to severe depression. Earlier this year Firdos married Francois Adam and since then she has seemed a lot happier. Here mental state has improved considerably and reportedly the four children living at home are also very attached to Mr Adam. I strongly support the spousal application for Mr Adam to be processed in Australia as this clearly would help aid Firdos’ mental state in a positive manner.”  The address provided on this letter was the Maidstone address.

17. The Tribunal has had regard to the letter from Dr Iman Tahmasebi at Sunshine City Medical Clinic (AAT Folio 194) dated 1 April 2019 that stated the following about the sponsor: “I am writing in regards to the medical conditions of Ms Firdos Awadella. Ms Awadella was brought by her husband to see me on 16/11/2016. She had anxiety and depression because of her husband visa problem. She was feeling low mood, low appettite ,low energy ,memory impairement and sleep problem. Her Husband was looking after her during that time and supporting her family ( 4 children). She was referred to see psychologist for further management of her anxiety and depression problem.“

18. The Tribunal has had regard to the letter from Dr Iman Tahmasebi at Sunshine City Medical Clinic (AAT Folio 195b) dated 6 April 2019 that stated the following about the applicant: “I am writing in regards to the medical conditions of my patient Mr Francois Adam. Mr Adam has been a regular patient of this clinic and myself since 16/11/2016. Initialy . He came to visist me because of his wife’s anxiety problem. He stated that he had to leave the country because his visa condition But thsi was causing stress and naxiety for his wife. Mr adam stated that he had to stay in Australia to support his family (wife and 4 children). His wife was referred to see psychologist for counselling an d furtehr management of her depression a nd anxiety problem. Mr Adam had work related injury to his lower back on 21/08/2017. He has been on workcover since then and he has been referred to specialist for further management of his lower back injury. He has no capacity to perform his preinjury work as a PCA in the age care. He can not stand or sit for long period ,also can not repetetively push ,pull ,lift or cary weights.” 

19. The Tribunal has serious concerns regarding the letters from the Joslin Clinic and Sunshine City Medical Clinic due to a range of inconsistencies regarding in the number of children the sponsor has which ranged from 4 to 6 and the different addresses on the Sunshine City Medical Clinic letters. These letters were as recent as April 2019. The Tribunal gives limited weight to the letters from both Joslin and Sunshine City Medical Clinics.

20. In relation to the claims of emotional hardship of the sponsor the Tribunal finds that it is not a compelling reason for the applicant to be granted a visa because she has 5 adult children that will support her if the applicant is required to depart Australia and return to France. The sponsor stated at hearing that her older children live at the Maidstone house and that she, the applicant and her daughter lives at the house in Sunshine West. The sponsor confirmed that she has a total of 6 children. The youngest of the children is 10 years of age who was born in Australia and the 5 other children are over 18 years of age and were born in Sudan. The sponsor further stated that she had been a single woman for a long time before meeting the applicant. If the applicant was allowed to stay this would make her life a lot better, that she is now a happy woman and that her children have someone to look up to, that being the applicant. The Tribunal accepts that any period of separation will cause some emotional hardship for the sponsor however the sponsor will be able to receive support from her family in Australia and maintain contact with the applicant while he is offshore.

21. The Tribunal accepts that the applicant may have built a father daughter relationship with the sponsor’s 10 year old daughter. At hearing the applicant stated that he is not the biological father of the girl. The applicant stated that he regularly helps the 10 year old with her homework. The sponsor’s daughter is the only child living at the address of the applicant and sponsor. The applicant does not appear to have as close relationship with the sponsor’s 5 adult children who apparently live at the Maidstone address. Although the applicant has built up a close father figure relationship with the sponsor’s 10 year old daughter where he helps her with her homework and at the school’s breakfast club this does not constitute a compelling reason as to why the applicant should be granted the visa. The Tribunal accepts that any separation of the sponsor’s daughter and the applicant would cause some degree of emotional hardship however the sponsor’s daughter would continue to receive support from her adult siblings in regards to her well-being.

    Financial Hardship

22. The Tribunal has had regard to the migrations agents submission dated 10 April 2019 (AAT Folio’s 221 and 222b) that mentioned the sponsor has 4 children (actually 6 children) and that the applicant cannot physically look after them due to his injury; that the sponsor is now studying in order to find employment in the future and that the couple hoped to get a house loan in the future. The Tribunal does not accept the migration agents submission dated 10 April 2019 as the agent did not mention that the applicant on 28 March 2019 was paid a lump sum from Australian Super of AUD172,465.99 for his workplace injuries. The applicant informed the Tribunal at hearing that he intends to return to work within the next three months.  

23. At hearing the Tribunal informed the applicant that a s376 certificate and notification was on file. The Tribunal used the procedure under s.359AA to put information to the applicant which would be the reason, or a part of the reason, for affirming the decision not to grant you the visa. The Tribunal informed the applicant that it was an anonymous dob in to the Department in early January. The Tribunal provided the gist of the information to the applicant that he and the sponsor were not in a genuine relationship, that they live separately one in Sunshine and the other in Maidstone, that the relationship is contrived and that the aim is to gain a migration outcome. The Tribunal confirmed with the applicant that he understood the information and how the information was relevant to the review, and the Tribunal advised him that he could comment on or respond, or seek additional time to comment on or respond. The applicant elected additional time be granted. The applicant requested 20 minutes which was granted by the Tribunal and the hearing was adjourned. Following the adjournment the applicant made the following comments to the Tribunal. The applicant stated that the information regarding the two properties is correct. The applicant stated that he and the sponsor have maintained the two houses and that the Maidstone residence is a government housing commission home where the older children of the sponsor live. The applicant stated that he, the sponsor and the sponsor’s 10 year old daughter live at the Sunshine house. The applicant stated that the house in Sunshine was initially leased by a friend of theirs who has moved to Sydney and that they have sublet the property from the friend. The applicant stated that no official lease agreement is in place for the property at Sunshine. The sponsor confirmed at hearing that she, her 10 year old daughter and the applicant are currently living at the property in Sunshine West which they have sub-leased from a friend who has moved to Sydney. The applicant further stated that the relationship is real and not contrived and that he is not in the relationship for a migration outcome as he is a French citizen and that he can and could live in sections of the European Union (EU). The Tribunal notes that a copy of the applicant’s French passport was on the Department file (DIBP folio 54). The Tribunal does not accept that the applicant is suffering from financial hardship given that the applicant and sponsor have the ability to financially maintain two households with one being a residence that is provided by the government the other home is sub-let through a friend without an official leasing documentation. 

24. At hearing the applicant stated that he intends to return to work within the next three months as his back injury has improved. The Tribunal notes that on 28 March 2019 was paid a lump sum from Australian Super of AUD172,465.99. The applicant informed the Tribunal that the sponsor is not currently working as she is studying English. The Tribunal does not accept that the applicant is suffering from financial hardship.

25. The Tribunal gives regard to the comments made by Khames Jumma. Khames informed the Tribunal that he had known the couple since 2014 that they had come from the same community back in the Sudan and that in Australia he runs a shop that is frequented regularly by the Sudanese community.  The Tribunal asked Khames if he had anything further to contribute to the Tribunal. Khames responded that this is all I have to say to the Tribunal today. The Tribunal acknowledges that Khames has known the couple since 2014 and that he has seen them at his shop which is frequented regularly by the wider Sudanese community. Khames did not provide any compelling reasons in regards to why the applicant needs to remain in Australia. The Tribunal places limited weight on the evidence provided by Khames about his knowledge of the couple but made no reference as to why the applicant needed to remain in Australia with the sponsor.

26. The Tribunal gives regard to the comments made by Mohamed Abdalla Khalil Abaker Mohamed informed the Tribunal that he had known the applicant since 2013 and that he had met the sponsor for the first time on 13 March 2016 as he was a witness to the wedding. Mohamed informed the Tribunal that he visited the couple frequently, that he had been into the home at Sunshine West on many occasions but had only been to the outside of the house in Maidstone. Mohamed further stated that the sponsor is the of 6 children and that the applicant is hardworking person. The Tribunal thanked Mohamed for his contribution to the hearing. Mohamed did not provide any compelling reasons in regards to why the applicant needed to remain in Australia. The Tribunal acknowledges that Mohamed has known the applicant since 2013 and first met the sponsor on the day of their wedding in March 2016 where he was a sponsor at their wedding and that he has visited the couple of a number of occasions at their various properties.  The Tribunal places some weight on the evidence provided by Mohamed about his knowledge of the couple but made no reference as to why the applicant needed to remain in Australia with the sponsor.

27. Ultimately, the applicant has not satisfied the Tribunal that anyone reason given, or the reasons taken together, are sufficiently forceful such that the Tribunal is compelled to waive the schedule criteria.

28. 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).

29. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    M. Edgoose
    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.