Adhikari (Migration)

[2020] AATA 4221

Adhikari (Migration) [2020] AATA 4221 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Makar Bahadur Adhikari

CASE NUMBER:  1808237

HOME AFFAIRS REFERENCE(S):          BCC2017/1726337

MEMBER:John Longo

DATE:11 August 2020

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)(ii) of Schedule 2 to the Regulations.

Statement made on 11 August 2020 at 1:33pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – sponsor’s pregnancies – subsequent miscarriages and surgery – sponsor’s mental health condition – sponsor’s financial hardship in the absence of the applicant – difficulties faced if both return to home country – 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
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 Home Affairs 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 15 May 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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)(d) of Schedule 2 to the Regulations because he did not meet Schedule 3 criterion 3001 in that he ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate considered the applicant’s claims that there were compelling reasons for waiving the Schedule 3 criteria, but the delegate was not satisfied that there were compelling reasons that justified the waiver of the Schedule 3 criteria.

4. On 26 March 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant has been represented in relation to the review by his registered migration agent.

5. The Tribunal has had regard to all evidence before it, including evidence filed on 7 July 2020 in response to an outreach letter sent by the Tribunal on 24 June 2020 requesting information and evidence of any compelling circumstances. Pursuant to s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour based on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. 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).

7. 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

8. 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.

9. In this case, the relevant day is the day the applicant last held a substantive visa, which was 15 November 2011, the day his student visa was cancelled. On 15 May 2017, the applicant lodged the visa application which is the subject of this review. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

   Compelling reasons

10. 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.

11. 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.

12. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of the provisions, gave two examples of circumstances in which a waiver may be justified. One of these examples is that there are Australian-citizen children from the relationship. The other is that the applicant and sponsor are already in a longstanding partner relationship which has been in existence for two years or longer.

13. The Tribunal also notes that previous versions of the Department’s Procedures Advice Manual (PAM3) had mirrored the examples provided in the Statutory Statement, as well as suggesting a range of other examples of circumstances that would amount to compelling circumstances. However, those examples were removed on 1 July 2014 and the policy guidance now focuses on the circumstances that resulted in the applicant becoming unlawful and emphasises the consideration of whether the circumstances are beyond the applicant’s control. Notwithstanding, the Tribunal is mindful that it is not bound to follow the Government’s policy but rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether there are compelling reasons for not applying the Schedule 3 criteria.

14. The Tribunal notes the evidence on the Department’s file that the applicant and the sponsor married on 24 April 2017. There is evidence that the applicant and sponsor are in a longstanding partner relationship which has been in existence for over three years. However, the applicant did not submit specifically that the length of the parties’ partner relationship is a compelling reason to waive the Schedule 3 criteria.

15. Rather, the written submissions of 7 July 2020 submitted that several reasons on which compelling reasons arise which warrant a waiver are as follows:

    ·the sponsor’s pregnancies, subsequent miscarriages and surgery;

    ·emotional support provided to sponsor;

    ·sponsor’s treatment for anxiety and stress;

    ·the impact of COVID-19 on the applicant and sponsor’s circumstances; and

    ·adverse financial effect on the applicant’s sponsor.

16. The applicant submitted several medical referrals. A medical referral from the sponsor’s gynaecologist on 20 June 2019 to the Gynaecology Clinic at Northern Hospital, Epping, refers to the sponsor being diagnosed with an endometrial polyp and cyst in her left ovary. The referral also discussed the sponsor’s spontaneous miscarriage in December 2018 and a missed abortion in May 2019 which required suction curette. This led to further referral to the Royal Women’s Hospital Recurrent Miscarriage Clinic for a hysteroscopy which diagnosed chronic endometriosis. It was submitted that these circumstances required the applicant to provide emotional support and for the applicant to leave the sponsor in these circumstances would be distressing and difficult. The Tribunal accepts that the sponsor’s medical condition and the applicant’s support are a compelling circumstance.

17. A referral on 13 March 2020, made by her GP, was to a psychologist for treatment. A mental health care plan completed by the medical practitioner provides the basis for the referral. The mental health plan stated:

    The couple very stressed as trying to conceive as had two miscarriages and now not getting pregnant again. She gained weight as well. She gets upset most of the times for no reason [sic].

    The medical practitioner was of the professional opinion that the sponsor was experiencing depression and anxiety. While no report was provided from the sponsor’s psychologist, the Tribunal notes that remittances for the payment of psychology fees were provided to the Tribunal as evidence of this treatment having commenced. It was submitted that the sponsor’s condition could worsen if the applicant was required to apply offshore. The Tribunal accepts that the sponsor’s condition could worsen and this is a compelling circumstance.

18. With respect to the impact of COVID-19 on the applicant’s circumstances, it was submitted that the sponsor would most likely join him in Nepal and that, consequently, she would not be able to receive medical support in Nepal to the same extent as in Australia. The submissions did not reference any published sources in respect to this claim.

    It was submitted that the sponsor would be placed in financial difficulty if the applicant were not able to remain in Australia. The submissions stated that the sponsor had purchased a property for her and the applicant. A copy of a home loan statement with the Commonwealth Bank was provided to the Tribunal. It was submitted that if the applicant was required to depart Australia, although the sponsor is working at present, it is expected that she will not be able to cover the mortgage costs and other expenses and may lead to her having to sell the property. The Tribunal accepts that the sponsor’s financial hardship in the absence of the applicant are a compelling circumstance.

19. It was also submitted that the applicant and sponsor would face difficulty if the applicant was required to return to Nepal and that if the sponsor was to join him, they would, due to “living standards, medical facility, pollution index, society acceptance for psychological counselling person, transportation facility, political instability etc in Nepal is out of imagine comparing the living standard here in Australia”, experience difficulties as a consequence of these conditions. The Tribunal accepts that the sponsor would face difficulties if they return to Nepal with the applicant and these are compelling circumstances.

20. In addition, the Tribunal has had regard to the Department’s policy referred to above. The primary decision outlines the applicant’s immigration history. It appears that while the applicant last held a substantive visa on 15 November 2011, nevertheless he has remained lawfully in Australia on various bridging visas. The Tribunal has not viewed the applicant’s immigration history as having significant weight in the consideration of this matter.

21. Considering the circumstances as a whole, including the evidence and findings above that the applicant and sponsor are in a longstanding partner relationship, and mindful of likely stress that would be caused to the sponsor if the applicant were required to depart Australia and remain in Nepal until the processing of any application for an offshore partner visa, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria in this case.

22. 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

23. 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)(ii) of Schedule 2 to the Regulations.

    John Longo
    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.