BIEN (Migration)

[2020] AATA 2713

BIEN (Migration) [2020] AATA 2713 (30 June 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr VAN QUOC BIEN

CASE NUMBER:  1813758

HOME AFFAIRS REFERENCE(S):          BCC2017/1071830

MEMBER:  Roger Maguire

DATE:  30 June 2020

PLACE OF DECISION:  Brisbane

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 30 June 2020 at 9:01am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for granting visa – best interests of Australian citizen children – sponsor’s bankruptcy – applicant’s financial and personal support – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, criteria 3001

Australian Citizenship Act 2007, s 12(1)(a)

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 18 March 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(d) because the applicant did not meet the Schedule 3 requirements, and there were no compelling reasons to waive the application of Schedule 3 requirements.

4. The Tribunal considered the material before it and reached the view that it was appropriate to proceed under s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   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.

   Criterion 3001

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 criterion 3001(2), as set out in the attachment to this decision.

10. Evidence before the Tribunal shows that the applicant’s last substantive visa ceased on 27 January 2017, and that the present application was lodged on 18 March 2017. It is clear that the applicant’s last substantive visa ceased more than 28 days prior to lodging the present application, and the Tribunal is satisfied that the applicant does not meet criterion 3001.

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

   Compelling reasons

2. 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.

3. 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.

4. Examples of what might constitute ‘compelling reasons’ are offered in the Explanatory Statement to Statutory Rules 1996, No. 75:

   Clause 10 - Schedule 2, Part 820 (Spouse)

   Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

   It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:

   -       where there are Australian-citizen children from the relationship; or

   -       where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.

   In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.

5. Evidence before the Tribunal shows that the applicant commenced a relationship with his sponsor in December 2014, began living with her in 2015 and has lived with her continuously since. At the time of the commencement of the relationship, the sponsor had two children from a previous relationship, and those children continued to live with her. The sponsor gave birth to a child from this relationship on 12 September 2015 and DNA evidence before the Tribunal establishes that the child is the applicant’s. The sponsor gave birth to another child of the relationship on 18 July 2017, and is due to have the third child of the relationship in August 2020, following which she will need to take 12 months off her work with the Queensland government to care for the newborn child, and her four other children. The applicant is operating a small seafood business from which he supports the sponsor and the children of the household. The sponsor has stated that she will be reliant on the applicant for financial support to care generally for all of her children during this period, and that separation at this time will be devastating to their lives. The Tribunal accepts this evidence.

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1. The sponsor is already in financial difficulty, as she was declared bankrupt in 2019, and the home in which the applicant, sponsor, and all of her children were living was sold and is currently being rented back.

2. The Tribunal is satisfied that the applicant and sponsor have been in a relationship for approximately five years, the sponsor is an Australian citizen, and that there are children of the relationship, and these children are Australian citizens in consequence of s.12(1)(a) of the Australian Citizenship Act 2007.

3. The Tribunal accepts that should the applicant be required to travel offshore to make a fresh application for a Partner visa, this would deprive the sponsor of the financial support he provides, and leave the sponsor to care for five children ranging in ages from newborn to 11 years, and this would result in extraordinary hardship for a woman who is already a declared bankrupt, and that this circumstance would be likely to endure for one to two years at least.

4. Considering the totality of the circumstances, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria in this instance.

5. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

6. 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

7. 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.

   Roger Maguire
   Member

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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

Case Number 1813758  Page 5 of 6

(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.

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