ALI (Migration)

[2019] AATA 4672

ALI (Migration) [2019] AATA 4672 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MOSTAFA ALI

CASE NUMBER:  1709486

HOME AFFAIRS REFERENCE(S):           BCC2016/3578631

MEMBER:Peter Vlahos

DATE:14 October 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 14 October 2019 at 8:48am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Public Interest Criterion 3001 – lodging partner visa onshore – no substantive visa held – application not made within 28 days of last holding substantive visa – compelling reasons for waiving criterion – emotional hardship – breakdown of relationship and withdrawal of sponsorship – family violence – no compelling reasons – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), 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 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 27 October 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)(d)(ii) of Schedule 2 because it was considered that there were no compelling reasons for waiving the Schedule 3 criteria to enable the applicant to lodge a Partner visa onshore.

4. The applicant appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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.

   Background

9. The applicant first arrived in Australia as the holder of a Student (subclass 572) visa[1] which ceased on 30 August 2013. On 20 July 2012 the applicant lodged an application for a Protection visa which was refused by the Department on 28 September 2012. On 17 October the applicant lodged an application for review with this Tribunal’s predecessor, the Refugee Review Tribunal (RRT). On 18 July 2013 the RRT affirmed the Department’s decis    ion. On 26 August 2013 the applicant lodged another Student (subclass 572) visa and this visa application was refused on 22 November 2013. On 8 May 2014 the applicant lodged an appeal to the Federal Circuit Court which was later withdrawn on 12 February 2015.

   [1] Which was issued to him on 13 January 2011, see AAT File, [copy of Department decision record] Folio [19]

10. On 15 April 2014 the applicant lodged another Protection visa which deemed to be invalid and requested ministerial intervention, which was refused. On 12 September 2014, the applicant lodged his third Protection visa application which was refused. The applicant then appealed to the Federal Circuit Court which refused to rule in his favour – upholding the Department’s decision to refuse.

11. Thereafter, for a period of seventeen (17) months the applicant remained unlawful in Australia until he lodged a Partner (Temporary)(subclass 820) visa which is the subject of this review.

    Criterion 3001

12. 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.

13. The applicant last held a substantive visa on 30 August 2013. This application was lodged on 27 October 201. As the visa application was not made within the 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

14. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are any compelling reasons for not applying the criterion.

15. 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.

16. In passing, the provisions are not intended to facilitate persons who:

    ·     Fail to comply with their visa conditions; or

    ·     Deliberately manipulate their circumstances to give rise to compelling reasons; or

    ·     Can leave Australia and apply for a Partner visa outside Australia.

17. Prior to the Department making its decision on 19 April 2017, the (review) applicant was provided with an opportunity to submit further information regarding compelling factors for consideration by the Department.[2]

    The Department’s decision on Schedule 3 criteria

    [2] It is noted in the delegate’s decision that the applicant provided several documents addressing his relationship, including 888 statutory declarations, confirmation of registration of Marriage, phone bills, receipt of purchase of furniture, bank accounts with noted purchases. Statements from the applicant’s former sponsor and a statement from the applicant dated 13 January 2017.

18. The delegate considered the applicant’s ‘compelling reasons’ as far as they involved the applicant and his married relationship with his sponsor and determined that the information provided was minimal as far as it tried to show the existence of combined lives and this (according to the delegate) ‘cast doubt’ on the genuineness of the applicant’s relationship with his sponsor because it appeared to him  that matters had been accelerated as far as the relationship was concerned for the sole purpose to submit a Partner visa.[3]

    [3] AAT File, see Department decision record, Folio [16]

19. The delegate went on in his decision, to say that though he did ‘not make an assessment of the relationship which existed (at the time) between applicant and his sponsor whether it was a genuine spouse or de facto relationship’[4] he did not consider the reasons provided necessitated the waiving of Schedule 3 criteria.

    [4] Ibid see Folio [16]

20. The delegate also determined that it was reasonable to expect a level of emotional hardship to be experienced if partners are separated from one another from the other for an extended period of time. However, (according to the delegate) this was a ‘common experience’ for a ‘large number of applicants’ applying from offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident. It was the opinion of the delegate that though such emotional hardship may be considered a ‘compelling reason’ in a Schedule 3 criteria consideration, the applicant had provided no evidence to demonstrate the ‘severity of the anticipated hardship.’

21. Finally, the applicant claimed that he had changed his religious beliefs in 2011, from a practising Muslim to a Jehovah Witness while in Australia. When his family learnt of this (according to the applicant) they ‘ceased supporting him.’ The applicant claimed that this ‘change’ was out of his control and with a lack of income allowed for his visa situation to deteriorate. Again, the delegate understood that such circumstances may create hardship with the applicant, but applicant provided no evidence of having sought financial assistance from any authority or person which prevented him to otherwise maintain his presence in Australia on a legal basis.[5]

    [5] Ibid see Folio [16]

22. At the hearing the applicant told the Tribunal that he had applied for a Partner visa on 27 October 2016. He went on to tell the Tribunal that his relationship with his sponsor/wife had begun in January 2016. The two were married on 23 October 2016. Unfortunately, that relationship foundered and formally ended on 17 June 2018 with his sponsor/wife withdrawing her sponsorship.[6]

    [6] Ibid see Folio [63]

23. The applicant also told the Tribunal that in the brief period that he was married to his sponsor/wife, he had been subjected to ‘family violence’. The Tribunal was provided as evidence a ‘statutory declaration’ dated 25 June 2018, which deposed that the applicant had been a victim of family violence perpetrated on him  in ‘mid-May 2018’ where it was claimed the wife ‘attacked the applicant’ and then proceeded to ‘bite him on the left upper arm.’ The applicant suffered a further attack on 17 June 2018, when he ‘physically attacked’ then, ‘scratched on his face’ and was threatened to be ‘stabbed’ with a ‘knife’. After these incidents the applicant left the matrimonial home to live with his cousins.

24. The applicant claimed that his sponsor/wife was ‘afflicted’ by ‘drug abuse’ and ‘mental health issues’ which intensified the attacks he was subjected to. Moreover, his sponsor/wife refused to seek medical treatment for her drug and mental health problems.

25. The Tribunal also noted and read the medical reports provided by the applicant’s medical practitioners as to the ‘effect’ his former wife’s dependency on drugs caused him personal problems with his health and mental well-being.

26. The Tribunal asked the applicant to explain why he had not made a formal complaint to the police concerning these wilful acts of family violence perpetrated on him by his former spouse/wife. The applicant response was that he did not want cause her harm with the police and did not want to embarrass her.

27. The Tribunal does not doubt that what the applicant has experienced in his brief relationship with this former sponsor/wife was very difficult and traumatic. The Tribunal notes that the experience may have traumatised the applicant to the point of seeking (as he has done) professional help in coping with such acts of violence as he has experience from his former spouse/sponsor.

28. Nonetheless, the Tribunal does not accept the argument made by the applicant that his circumstances would have entailed such hardship as to find that they amounted to compelling reasons for waiving the Schedule 3 criteria. The applicant’s spouse/wife had clearly withdrawn her sponsorship of the applicant as her partner and therefore the applicant had no substantive visa to claim. Clearly from the evidence in this case, he could not claim a relationship that had been interrupted by a brief period of disharmony, but it had completely collapsed. The Tribunal is not persuaded that the reasons as the applicant has presented to the Tribunal constitute compelling reasons for waiving the Schedule 3 criteria.

    The applicant’s representative submission concerning the effect of Waensila on the present case

29. It was submitted by the applicant’s representative that the concept of ‘compelling reasons’ in cl 820.211(2)(d)(ii) is not temporarily limited. In other words, circumstances existing at the time of the application for the partner visa and circumstances arising after that time may be relevant to whether or not ‘compelling reasons’ were present. According to the submission made on behalf of the applicant, the flexibility imported into cl 820.211(2)(d)(ii) by Waensila produced the following consequences for the applicant. It was not decisive or fatal to the applicant’s case for a waiver of the Schedule 3 criteria that the applicant’s marriage had broken down. The subsequent breakdown of the marriage was ‘not necessarily excluded from consideration.’[7]

    [7] see applicant’s submission to the Tribunal – AAT File Folio [89]

30. It was also submitted that the applicant’s statutory declaration dated 25 June 2018 provided a clear basis for waiving the Schedule 3 criteria requirements in the applicant’s favour. In particular, it was submitted, his marital relationship commenced on 23 October 2016 and the family violence and distress caused the eventual breakdown. Indeed, the applicant it was claimed was a victim of family violence at ‘the hands of his ex-wife’ who was ‘afflicted with a drug and alcohol addiction’ as well as a ‘mental health issue.’ Therefore, the events after the time of application, including the applicant’s ex-wife’s drug addiction and her mental health issues ‘supported the waiver.’[8]

    [8] Ibid

31. The Tribunal noted the submissions made by the applicant’s representative as far as it concerned the relevance of Waensila to the applicant’s circumstances but the Tribunal is of the opinion that the representative’s reading of the Federal Court’s decision was mistaken.

32. Upon careful reading of the judgements of Robertson and Griffith JJ, one observes the Court’s thinking on the proper operation of cl 820.211(2)(d)(ii). Robertson J remarked at paragraph [18]:

    ‘the purpose of the Minister’s discretion in cl 820.211(2)(d)(ii) is to give the Minister       greater flexibility if and when compelling circumstances arise and, for example, to        avoid hardship to a visa applicant, then to my mind it would be inconsistent with that              purpose to limit the circumstances the Minister may take into account to relieve the visa               applicant from being required to satisfy at the time of application Schedule 3 criteria …. I          see no reason to limit the circumstances, whether they favour the visa applicant or not, to      the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an                ameliorating provision and it should      not, in my opinion, be giving a construction which prevents the Minister, at the time of his            decision, from taking into account in assessing “compelling reasons”, the circumstances                which prevail.”

33. Griffith J [at 54] while in agreement with the sentiments of Robertson J remarked as follows:

    “The waiver power was obviously intended to be available to deal with cases where    there were “compelling reasons” for not putting particular applicants to the hardship    of           having to leave Australia for that purpose. Given the nature of that power and the            time when its possible application arises for consideration, clear words are required             which would have the effect of confining the consideration to events which only          existed at the time the visa application was made. Such a restriction would remove             from consideration circumstances which occur after that date and constitute “compelling         reasons” for not exposing some partner visa applicants to the hardship of leaving Australia             and make a fresh application from overseas. I do not consider that the relevant              provisions                contain such clear words….”
     

34. In both judgements the learned judges talk about ‘visa applicants’ which face difficulties through their visa application process. Neither judge discusses the application of cl. 820.211(2)(d)(ii) to a situation where the applicant has no visa application awaiting final determination and seeking the consideration of ‘compelling reasons’ as was the case before this Tribunal. Indeed, the ‘flexibility’ that was judicially ‘imported’ into cl 820.211(2)(d)(ii) by Waensila was not the kind that favoured as it was submitted – the applicant in this instance.

35. As the Tribunal discussed above, the applicant in this instance did not have his visa application frustrated by some unknown set of circumstances or happenings beyond his control which attracted the flexibility provided for in Waensila. The applicant’s set of circumstances were that his sponsor/wife had withdrawn her sponsorship completely and thus the applicant had no substantive visa in play. Indeed, both judgements quoted above [33] and [34] make reference to ‘visa applicants’. Moreover, the subsequent breakdown of the applicant’s marriage (leaving the applicant with no application) is not a consideration envisaged by the learned Court in Waensila as the applicant’s representative submitted (as a ‘compelling reason’).

36. Nonetheless having regard to the information before it, the Tribunal is not satisfied either individually or cumulatively, the circumstances presented by the applicant represent compelling reasons for waiving the Schedule 3 criteria.

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

38. 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).

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

    DECISION

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

    Peter Vlahos
    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.