Bamba (Migration)

[2020] AATA 1868

Bamba (Migration) [2020] AATA 1868 (12 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjeev Bamba

CASE NUMBER:  1732756

HOME AFFAIRS REFERENCE(S):          BCC2017/385660

MEMBER:Helena Claringbold

DATE:12 May 2020

PLACE OF DECISION:  Sydney

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 12 May 2020 at 12:00pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – applicant on bridging visa after lengthy unlawful residence – application lodged more than 28 days after applicant last held substantive visa – waiver of criterion – genuine relationship not, of itself, a compelling reason – difficulties to sponsor and young children if visa not granted – decision under review remitted

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. On 29 January 2017, Mr Sanjeev Bamba, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on his spousal relationship with Mrs Shallu Bamba.

2. On 6 December 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not meeting the Schedule 3 criterion and specifically Schedule 3001 of Schedule 3 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result, the applicant did not meet cl.820.211(2)(d) of Schedule 2 to the Regulations made under the Act. On 22 December 2017, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision. The applicant was represented in relation to the review by his registered migration agent.

3. The Tribunal has been provided additional information supporting the parties’ spousal relationship.  On the basis, of the additional information submitted (and previously unavailable to the delegate) and as this decision is favourable for the applicant, the Tribunal will decide the matter on the papers.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file.

   ISSUE

6. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and if not, whether there are compelling reasons for not applying those criteria.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1987 in Kurukshetra, India. His parents and one sibling live in India. The applicant did not declare any previous partner relationships. The applicant entered Australia on 18 March 2009 as the holder of a subclass 572 student visa. This visa was cancelled on 10 February 2010. The applicant remained as an unlawful non-citizen for six years. On 22 December 2016, he was granted a Bridging visa E and he currently remains the holder of this bridging visa.

8. The sponsor was born in 1992 in Karnal, Haryana, India. Her parents and two siblings live in India. The sponsor did not declare any previous partner relationships. On 11 February 2015, she entered Australia. On 17 September 2019, she was granted Australian citizenship.

9. On 11 February 2015, the parties met. On 11 January 2017, the parties married in Cairns, Queensland, Australia. They have two children from this relationship born on 5 October 2017 and 21 September 2018. 

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

10. 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, the applicant must satisfy Schedule 3 criteria unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d) of Schedule 2 to the Regulations.

11. 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

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. Specifically, as detailed in the delegate’s decision record, the applicant was granted a substantive visa, which was cancelled on 10 February 2010.  He applied for the visa under review on 29 January 2017. Therefore, at the time of application, it was more than 28 days since the applicant held a substantive visa.

13. As the visa application was not made within 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 compelling reasons for not applying the criteria.

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.

    CLAIMS AND FINDINGS

16. In requesting a waiver to the Schedule 3 criteria, the applicant provided information in support of the parties’ relationship. The applicant also provided other information for consideration as to whether there are compelling reasons not to apply the Schedule 3 criteria. The applicant’s claims and Tribunal’s findings on that information are as follows.

17. The Tribunal considered the evidence relating to the Schedule 3 waiver and the long-term nature of the relationship. This included the information provided by the parties about the genuine nature of the parties’ relationship. It also included the information in third party statements from family and friends about the development and genuine nature of the parties’ relationship. Even if the Tribunal accepts that the applicant and the sponsor have been living together as spousal partners for more than three years, a long-term relationship is not necessarily a compelling reason in every case. 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 considered this evidence and the circumstances of the parties’ claimed relationship. It is of the opinion that there is nothing in the individual circumstances of this case that should compel the Tribunal to not apply the Schedule 3 criteria on this basis singularly. The Tribunal is not prepared to waive the Schedule 3 criteria based on the applicant’s long-term relationship with the sponsor.

18. The Tribunal does not condone the migration history of the applicant. It is of the view that the applicant had little regard for Australia’s migration laws. He remained unlawfully in Australia for many years as an unlawful non-citizen.

19. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence and the full circumstances of the parties’ relationship, individually and as a whole. It reflected on the information relating to the parties’ spousal relationship of more than three years. It considered the DNA evidence which demonstrates that the parties have two young children born in 2017 and 2018. It thought about the care and support the applicant gives the children and the sponsor. It mulled over the financial circumstances of the parties and the additional burden, including financial burden, an offshore visa application would present them. It considered the psychologist’s and counsellor’s letters about the sponsor’s psychological health and the stability of the family unit. It pondered the difficulties the sponsor would face during a separation from the applicant, particularly because of the day-to-day support the applicant provides to her and the children. The Tribunal concluded and is satisfied that the applicant’s departure from Australia would place undue stress on the sponsor and the Tribunal is compelled not to apply the Schedule 3 criteria in this case.

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

21. 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  

22. 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.

    Helena Claringbold
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

    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.