Cartwright (Migration)

[2019] AATA 4274

Cartwright (Migration) [2019] AATA 4274 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Thomas Cartwright

CASE NUMBER:  1820961

HOME AFFAIRS REFERENCE(S):           BCC2016/4023027

MEMBER:Steven Griffiths

DATE:6 September 2019

PLACE OF DECISION:  Adelaide

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:

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

Statement made on 06 September 2019 at 1:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant not holder of substantive visa – compelling reasons for not applying Schedule 3 criteria – family unit – strong relationship between applicant and step-son – potential financial pressures on sponsor – emotional hardship – applicant working at all times while living in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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, Mr. Andrew Cartwright, applied for the visa on 29 November 2016 on the basis of his relationship with his sponsor, Mrs. Liberty Cartwright. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant was no longer the holder of a substantive visa and did not meet the requirements of Schedule 3, Criterion 3001 and resolved the information was not sufficient for a s.820.211(2)(d)(ii) compelling reasons decision. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 30 August 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, her son Mr. Richard Spearen and Mr. John Barker. The Tribunal resolved to provide the applicant the opportunity to forward to the Tribunal, within 14 days, any documents dated between April and November 2016 between he and his then Migration Agent, which he had not provided to the Tribunal already, for review. The applicant forwarded on the same day information he received after contacting the Migration Agent immediately after the hearing.    

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

   BACKGROUND OF THE EVIDENCE

6. Mr. Cartwright was born in Bielefeld, Germany, in 1974. His parents, born 1954 & 1951, are divorced and he has two sisters and two brothers, born between 1973 and 1982 with all, except a brother in Canada, living in the United Kingdom. He has a daughter, born 4/1/96, from a relationship, and she lives in the United Kingdom. He married Samantha Cartwright, born 1970, on 17/12/08 before divorcing on 12/11/12, with no children from the marriage.  He entered Australia on a Visitor visa on 8/2/12 and was given a UC 457 visa on 26/4/12, which expired on 26/4/16. On 26/4/16 he applied for a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa, being provided with a Bridging Visa A operative from that day, and was notified in 4 November 2016 that the Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa had been refused.

7. Mrs. Cartwright was born in Quezon City, the Philippines, in 1969. Her father is deceased, with her mother, born 1940, and her five sister and four brothers, born between 1961 and 1985, living in the Philippines other than two sisters who also live in Australia. She arrived in Australia on 6/5/90 and became an Australian Citizen by grant on 26/1/93. She married Colin Spearen, born 1957, on 20/2/90 and they have a daughter and son, born 1993 and 1998, from the marriage which ended in divorce on 19/8/05.

   INFORMATION TO THE TRIBUNAL

8. Since the Department of Immigration made its decision, the applicant supplied, immediately prior to the start of the hearing, additional information being:-

   Notice of Bridging Visa A granted on 26 April 2016 based on an application being lodged for Temporary Work (Skilled) (subclass 457) visa.

   Invitation to comment on a notice of refusal for his employer, as the applicant and he as the nominee, of a Temporary Work (Skilled) (subclass 457) visa, dated 6 June 2016.

   Two emails, dated 6 June and 8 June, 2016, between the applicant and then Migration Agent on options to proceed, including authorization for the then employer of the applicant to re-apply as a business sponsor and then re-nominate the applicant for Temporary Work (Skilled) (subclass 457) visa.

   Series of emails between 29 August and 8 September, 2016, between the applicant and his then Migration Agent, with a decision to lodge a partner, de-facto visa application.

   Three emails between 16 and 23 September, 2016, between the applicant and Migration Agent of efforts to borrow funds to proceed with the visa application.

   Notice of Bridging Visa C granted to applicant, dated 29 November 2016, based on application lodged for Partner (Temporary) (class UK) Partner (subclass 820) visa.

9. In the afternoon following the hearing, via the Tribunal National Registry Mailbox, the applicant provided the Tribunal with a copy of Department of Immigration and Border Protection, dated 4 November 2016, in the name of the applicant, notice of refusal of an application dated 26 April 2016 for Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa.      

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, the evidence provided to and from the Tribunal hearing and evidence provided following the hearing.

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

12. 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)(ii).

13. It is not in dispute that the applicant 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 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

14. 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.

15. In order to meet Schedule 3 Criterion 3001, the application must have been validly made within 28 days after the relevant day. For the purpose of this application, the last relevant day is the last day the applicant held a substantive visa. The applicant lodged his application on 29 November 2016 and his last substantive visa expired on 26 April 2016.

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

    Compelling reasons

17. 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.

18. 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.

19. The applicant provided an oral submission to the Tribunal addressing the waiver. The applicant presented documented and oral evidence of his relationship with the sponsor, with the relationship commencing in October 2014, the parties committing to each other on 9 April 2015 and the parties marrying on 18 October 2016. The Tribunal acknowledges the applicant’s claims and has considered the various documents he has provided in support of the claim that the relationship is a genuine one. However, the Tribunal makes no assessment as to the nature of the applicant’s relationship with the sponsor and has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that relationship for the purposes of this decision.

20. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). Accordingly, simply the fact that the parties are in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria as it is already a criteria which must be satisfied in order to meet the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship.

21. The Tribunal is mindful that the Explanatory Statement to Migration Regulations (Amendment) 1996 No. 75, in providing examples of compelling reasons, states:

    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 (Tribunal’s emphasis).

22. The explanatory statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties had upon each other and other relevant factors must be considered. As it is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.

23. The Tribunal also acknowledges the earlier Departmental policy which identified long term relationships as giving rise to compelling reasons.

24. The Tribunal accepts that the relationship of the parties commenced 18 months prior to the expiry of the substantive visa, and that the relationship has been in place for 3 years and 11 months at the time of this decision, and considers this length of relationship to assist in supporting a compelling reason for the waiver.  

25. The applicant in his documented and oral evidence to the Tribunal stated that he and the sponsor commenced a serious relationship in October 2014, were married on 18 October 2016 and that the now 20 year old son of the sponsor has resided with them for the full period of their time living together, thus from when he was 15. 

26. The oral evidence of the son to the Tribunal hearing was that he fully supported the relationship of the applicant with his mother and views the applicant as a father, as his biological father has not been part of the family unit since 2005, so the relationship is strong and supportive.  The Tribunal considers this relationship between the applicant and son of the sponsor to be important to the family unit and assists in supporting a compelling reason for the waiver.

27. The Tribunal notes the documented and oral evidence of the applicant that he has worked at all times during the relationship, contributed fully financially, and has a joint responsibility with the sponsor for a debt on a jointly owned vehicle, and his departure from Australia would put significant financial pressures on the sponsor. The Tribunal considers this potential financial pressure to assist in supporting a compelling reason for the waiver.  

28. The Tribunal notes the supportive evidence provided to the hearing by Mr. John Barker, a friend of the parties, on the positives of the applicant being in Australia, primarily being the support he provides to his family, his relationships with a wide circle of friends and that he has been working at all times while living in Australia.

29. The Tribunal notes the applicant detailed several times during the hearing of the frustration he had with his previous migration agent, outlining that while he, and his sponsoring employer, gave direction for actions to be taken, they were not done as expected or within the timelines discussed, and he believes he was poorly advised and charged excessive amounts.

30. The Tribunal notes the applicant lodged on 26 April 2016, being the day his substantive visa expired, an application for a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa, with this application refused on 4 November 2016. The Tribunal determines the timing of this visa application and refusal decision, when considered with the timing of the Partner (Temporary) (Class UK) (subclass 820) and Partner (Residence) (Class BS) (subclass 801), lodged on 29 November 2016, to assist in supporting a compelling reason for the waiver.  

31. The Tribunal notes that while the substantive visa had expired on 26 April 2016, the applicant continues to have a visa application lodged or allowed review period in place at all times until the time of this decision, and has at time been on approved Bridging visas. The Tribunal notes the oral evidence of the applicant that he believed at all times that he has been living in Australia as a lawful non-citizen. The Tribunal determines these issues to assist in supporting a compelling reason for the waiver.   

32. The Tribunal accepts that it is reasonable to expect a level of emotional hardship to be experienced if the applicant is separated from his wife and step-son for any extended period of time. The Tribunal acknowledges that this is a common experience for other people who apply to migrate to Australia from offshore on the basis of their relationship with an Australian citizen or permanent resident. The Tribunal accepts that emotional hardship can be considered a compelling reason for not applying Schedule 3 criteria and the Tribunal determines that the evidence presented by the applicant and the sponsor is sufficient to substantiate the impact of emotional hardship.

33. On evidence the Tribunal is satisfied there are compelling reasons for not applying Schedule 3 criteria as the applicant provides emotional and financial support to his sponsor / family in Australia and this would be significantly impacted if he was required to leave Australia, develop an income stream and lodge an offshore partner visa application and await a decision.

34. Given the findings above, the appropriate course is to remit the application for a visa to the Minister to consider the remaining criteria for a Subclass 820.

    DECISION

35. 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:

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

    Steven Griffiths
    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.