BIBA (Migration)

[2018] AATA 1883

BIBA (Migration) [2018] AATA 1883 (3 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Albert BIBA

CASE NUMBER:  1606194

DIBP REFERENCE(S):  BCC2014/3497100

MEMBER:Justin Meyer

DATE:3 April 2018

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 (Temporary)) visa:

·  cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 03 April 2018 at 3:22pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Applicant does not meet the relevant Schedule 3 criteria – Compelling reasons to waive Schedule 3 criteria – Emotional hardship – Long-standing partner relationship – Decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.221
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 of a delegate of the Minister for Immigration on 24 March 2015 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 18 December 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.820.221 because, having considered the evidence before them and the claims put forward, they were not satisfied that the circumstances justified a waiver of the Schedule 3 criteria. The circumstances were not considered to be compelling.

4. The applicant appeared before the Tribunal on 10 November 2017 and 24 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Layla Dodaj and the sponsor, Shana Ruffat. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the Tribunal can be satisfied that there are compelling reasons why the Schedule 3 criteria should be waived.

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

8. 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).

9. 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

10. 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.

11. The applicant arrived in Australia on 14 August 2013, holding a subclass UD601 visa under a false name using a fraudulent Greek passport. On 14 November 2013 this visa ceased.

12. The applicant applied for a Tourist subclass FA 600 visa on 11 November 2013 in the name of Pantelis Lomakin. This application was recorded as invalid by the Department of Immigration and Border Protection (DIPB) on 12 November 2013.

13. On 21 November 2013 the applicant lodged an application for a Tourist FA 600 visa, again under a false name, which was refused. The decision was appealed to the Migration Review Tribunal, but the department’s decision was affirmed on 13 June 2014.

14. The applicant applied for a partner visa on 18 December 2014.

15. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because he could not satisfy the Schedule 3 and the delegate found no compelling reasons to waive the Schedule 3 requirements.

16. The applicant has remained lawfully in Australia. Nonetheless, as this visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. He did not hold a substantive visa for nearly 12 months when he made his application for a Subclass 820 (Partner (Temporary)) visa.

    Policy Considerations:

17. The relevant Departmental policy requires consideration in this case because of the review applicant's migration history.

18. The policy stresses that; …the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:

    oFail to comply with their visa conditions or

    oDeliberately manipulate their circumstances to give rise to compelling reasons or

    oCan leave Australia for a partner visa outside Australia.

19. The sponsor and the applicant's evidence submitted to the Tribunal and discussed below did not lead to a view that these circumstances exist in this particular case and application.

20. Further relevant policy states that the purpose of the Schedule 3 criteria are three-fold; firstly to encourage persons to apply for a further substantive visa before their existing visa ceases to have effect, secondly to discourage persons from overstaying their visas and thirdly to prevent non-citizens from benefiting by remaining in Australia unlawfully.

21. I do not have concerns about the applicant’s conduct in regards to the Subclass 820 (Partner (Temporary)) visa relevant to this review, in that he has made efforts to hold a visa lawfully whilst living in Australia in the relevant period.

    Compelling reasons

22. 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.

23. 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.

24. 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.

25. The Tribunal has submissions from the applicant’s representative, which present reasons as to why the Schedule 3 criteria should be waived in this case. Other oral submissions were made in the hearings and written materials were supplied.

26. It is put by the applicant that there threats to the applicant’s life in Albania, and pressing mental and psychological concerns for the parties that would result in extreme consequences for them, especially the sponsor, if the applicant had to leave Australia for a period.

    Threats to the applicant’s life

27. The applicant submitted that he fled Albania due to issues arising from a relationship he claimed to have had with a Muslim woman. The woman’s family were claimed not to approve of the relationship and this led to threats against the applicant’s life, in his submission. The applicant made the claim that this is the reason for him fleeing Albania and travelling to Australia on a fraudulent passport. The applicant claims that he still fears for his life should he return to Albania.

28. The Tribunal questioned the applicant in the hearing as to the details of this claimed threat. The applicant did not contemplate applying for a protection visa. The applicant said that individuals had come to his home in Albania to shoot him. He claimed that his family including his father had been victims of aggression from persons associated with his former girlfriend. He claimed that his former girlfriend had been ‘married off’ to another person Albania but had run away from him. The applicant said that his parents had been pushed around. He gave evidence that his former girlfriend’s father was an Iman who had very strong ties with the government.

29. The applicant said that he had not gone to the police because the police would never do anything. When it was put to the applicant that this kind of incident sounded a minimum like an assault, the applicant said that police only worried about such matters when somebody was killed.

30. I found the applicant’s evidence in this regard to lack credibility. There was no written evidence of these occurrences. There was a lack of adequate explanation as to the details of the claimed events. A very generalised account was given about friends in high places on the part of the applicant’s former girlfriend’s family, and a passivity of police. An implausible account was given about how the applicant could live nowhere else in Albania because people gossip a lot and do not have jobs. The applicant said that now that he had left the country his family no longer receive contact or harm from his former girlfriend’s family or associates. There is no photographic or other evidence of harm or injury and there are no medical reports. I am concerned that there does not appear to have been an assessment of the security concerns by the applicant with the authorities in Australia upon his arrival at any point. This leads me to have strong credibility concerns about the alleged incidental incidents that took place in Albania. As a result I do not find there to be compelling circumstances in regards to the alleged threats to the applicant’s life or the health and welfare of the applicant’s family and associates in Albania.

    Mental, psychological and health concerns

31. The applicant has made written submissions and there has been oral evidence from witnesses on these concerns about the sponsor.

32. The delegate observed that some level of hardship will be experienced by partners who are temporarily separated. The delegate observed that no evidence has been supplied of the severity of mental health issues suffered by the sponsor. The delegate accepted that the sponsor may have been involved in some previous failed relationship, but did not consider that it had been demonstrated that the anxiety caused by these events had caused a significant hardship or would not enable her to cope with the applicant’s temporary departure to lodge an offshore application.

33. Although emotional hardship can be considered a compelling factor in relation to the Schedule 3 criteria, the delegate cited a lack of compelling evidence to substantiate the claims; or to demonstrate the severity of the anticipated hardship and how it would not enable her to cope with the applicant’s temporary departure to lodge an offshore application.

34. The evidence before the Tribunal on these matters is more extensive. The sponsor has forwarded the evidence of two psychologists: Mr Wesley Johnson, dated 8 October 2015 and Ms Mariy-Rita Waldron, dated 11 October 2015.

35. Mr Johnson treated the sponsor for anxiety and depression in 2013 and 2014. He reported that the sponsor suffered from sleep disturbance, withdraw from social activities, poor memory, constant worry and ruminating, some mood fluctuations, loss of pleasure and motivation, reduced confidence and self-doubt and some cognitive distortions including negative thinking. Mr Johnson concluded that in his view the support of her partner could be of great support to the sponsor in managing her anxiety and depression.

36. The other psychologist, Ms Waldron, in her report emphasised that the sponsor’s family support was most beneficial in instrumental in her recovery.

37. The parties also made separate statutory declarations on 17 December 2014 which I give regard to.

38. I have questioned both parties about the mental state and difficulties of the sponsor. I consider the evidence of the sponsor in regards to her mental state to be credible. The Tribunal hearing room was a difficult place for the sponsor to be, and she presented as a stressed individual. I accept the sponsor’s evidence that she will ‘go back downhill’ if her spouse needed to go offshore. I accept the evidence that the parties live with the sponsor’s mother at an address in Melbourne.

39. I accept the sponsor’s evidence that she undergoes regular fortnightly cognitive behaviour therapy. I accept her evidence that she has begun with medication in consultation with her general practitioner. I accept evidence that she was reluctant to use this medication, Zoloft, but is now using it in an attempt to combat anxiety which is connected with disassociative and depression conditions. I accept that certain childhood issues have affected the sponsor.

40. The sponsor has been on both Youth Allowance a Newstart allowance, and I find that the sponsor’s mother pays for the rent of the parties.

41. The sponsor’s mother Layla Dodaj also gave evidence about how her daughter had anxiety since the age of eight years. The witness presented in a credible fashion and gave evidence about how her daughter catastrophized about certain life situations and that she had had an absentee father who had been in and out of jail.

42. I find that the parties do provide emotional support for one another and that the applicant’s presence in Australia living with the sponsor is of comfort and help to her.

43. The sponsor was able to describe the therapy that she was undergoing on a regular basis from Dr Pip Fell who she said was registered psychologist. I note the applicant’s representatives remarks about the difficulty in obtaining a written report on this situation from Dr Fell, but on the evidence I accept that this expert has been consulted regularly.

44. I have concerns about whether the sponsor is equipped to deal with the experience of being married to an applicant with an unclear visa situation and the challenges it presents at this time.

45. The mental and/or psychological state of the sponsor is difficult to precisely assess, but I am left with the impression of a person in a fragile state who needs continuity. Her evidence in the hearing was delivered in nervous and halting fashion. The sponsor has had previous relationship issues, and an anxiety problem. She presented as a person extremely concerned about her future and worried about many matters. I assess her as a person who sees the future in very worried and negative ways. From the oral evidence I conclude that the applicant provides at least some comfort and reassurance to her along with continuity. I accept that the applicant may well play a role in assisting the sponsor with her daily needs and care and provides a certain level of reassurance to her.

46. I give regard to what is described by the parties as a long-standing partner relationship. I do not make a finding about the genuineness of the relationship. Nonetheless I do note that a third-party witness, the sponsor’s mother stated that they are a genuine couple. There is also some evidence submitted to the Department and the Tribunal of financial, social, household and commitment factors.

47. I find that if the waiver to Schedule 3 criteria is not applied, the sponsor would suffer emotional anguish and stress, and that ultimately such hardship would be undesirable. Accordingly, I am satisfied that the emotional support the applicant provides to his sponsor and the very difficult psychological and mental state of the sponsor are compelling reasons not to apply the schedule 3 criteria. They are powerful circumstances.

48. Having considered the applicant’s circumstances regarding his sponsor’s mental/psychological health, the Tribunal is satisfied that her situation constitutes compelling reasons for waiving the Schedule 3 criteria and that there are forceful reasons why the applicant should be enabled to lodge a Partner visa onshore.

49. 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).

50. 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

51. 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 (Temporary)) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

    Justin Meyer
    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.