Chaichana (Migration)

[2020] AATA 2727

Chaichana (Migration) [2020] AATA 2727 (30 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Attachai Chaichana

CASE NUMBER:  1821137

HOME AFFAIRS REFERENCE(S):          BCC2017/2465016

MEMBER:P. Maishman

DATE:30 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 30 June 2020 at 12:06pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – student visa cancelled and bridging visa granted pending review – cancellation of student visa affirmed – compelling reasons for granting visa – length of relationship, parties’ financial circumstances, sponsor’s physical and mental health and family circumstances and applicant’s support – COVID-19 travel restrictions – 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 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 11 July 2017 on the basis of his relationship with his sponsor, Ms Geatprecha Kungsardarn. 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 did not satisfy cl.820.211(2)(d) because the applicant does not satisfy the Schedule 3 criteria and the delegate was not satisfied there were compelling reasons for not applying those criteria.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 22 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Geatprecha Kungsardarn. The applicant was granted additional time following the hearing to submit evidence in support of the application.  Additional material was submitted and has been considered by the Tribunal in reaching its decision.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file containing the visa application and supporting documents.

9. The applicant gave the Tribunal a copy of the delegate’s decision record. The Tribunal notes the delegate has not assessed whether the applicant meets the criteria to be considered the spouse or de facto partner of the sponsor. Having regard to the President’s Direction - Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate.

10. The Tribunal invited the applicant in writing, prior to the hearing, to provide information regarding compelling reasons for not applying the Schedule 3 criteria. The Tribunal received a letter dated 8 March 2020 from the applicant and an undated letter from his sponsor. The applicant gave the Tribunal letters from Nutpiroon and Treephong Niphong; Rebecca Piotrowski; Fidaa Adrah; Issa Sedda; Lornawati Gunardi; Hendarmin Tanuwidjaja; and Rinjong Gibson attesting to the genuineness of his relationship with the sponsor.

11. The Tribunal explained to the applicant that it has not assessed the nature of the relationship in detail and accepts, for the purpose of assessing whether Schedule 3 criteria should be waived and this review only, that the applicant is in a genuine relationship with the sponsor.

12. The applicant and sponsor gave oral evidence separately at the hearing.

13. The issue in the present case is whether there are compelling reasons for not applying the Schedule 3 criteria.

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

14. 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).

15. 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

16. 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.

17. The delegate’s decision record outlines the applicant’s visa history. In summary, the applicant arrived in Australia on 15 September 2013 as the holder of a student visa. On 14 June 2016 his student visa was cancelled because his enrolment in an educational institute was cancelled for non-payment of fees. The applicant applied to the Tribunal (differently constituted) for a review of that decision and remained in Australia as the holder of bridging visas. The Tribunal affirmed the decision to cancel the applicant’s student visa on 9 March 2017. The applicant applied for a partner visa on 11 July 2017.

18. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that 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.

19. The applicant does not contest that the visa history outlined in the delegate’s decision record is correct.

20. The Tribunal finds the applicant last held a substantive visa when his student visa was cancelled on 14 June 2016. The Tribunal finds the ‘relevant day’ as defined in criterion 3001(2)(c) is 14 June 2016. The applicant was not the holder of a substantive visa when he applied for the partner visa on 11 July 2017.

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

    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. The Tribunal had regard to the applicant’s written submission dated 8 March 2020 and his evidence given at hearing. The applicant’s submissions in relation to compelling reasons for waiver of the Schedule 3 criteria can be summarised as follows:

    a.the duration of his relationship with the sponsor;

    b.the emotional and financial hardship he and the sponsor would suffer;

    c.the medical conditions suffered by the sponsor and the day-to-day support he provides her.

25. The Tribunal considered the duration of the applicant’s relationship with sponsor, and the emotional and financial hardship that he and the sponsor would suffer if he was required to go offshore to apply for the visa.

26. The Tribunal has had regard to the letters it received attesting to the applicant’s and sponsor’s relationship and the applicant and sponsor’s consistent evidence about the commencement and development of their relationship. For the purpose of assessing whether Schedule 3 criteria should be waived and this review only, The Tribunal accepts that the applicant is in a genuine relationship with the sponsor.

27. The Tribunal acknowledges the applicant and sponsor have a genuine de facto relationship and claim to have had so for nearly 5 years, however a genuine de facto relationship is the basic requirement for a partner visa application. The parties have not satisfied the Tribunal, in this case, that the longevity of their relationship is a reason that should compel the Tribunal not to apply the Schedule 3 criteria. The parties did not provide any particular evidence which would support a claim that the length of the relationship would in itself amount to a compelling reason to waive the requirements of Schedule 3.  

28. The applicant gave evidence that his bridging visa conditions did not permit him to work and he had not done so while holding a bridging visa. The Tribunal asked the applicant about the comments in Mr Tanyuwidjaja’s letter of support dated 16 March, about the applicant’s hard work. The applicant explained Mr Tanyuwidjaja’s comments refer to the time prior to his bridging visa when he was a chef in a restaurant. The applicant denied he was still working and said sometimes he helps friends. He spent a lot of money on his agent and the AAT until he was broke. He receives some pocket money as financial support from his family. He is negotiating with his landlord in relation to frequent late payment of rent. When asked why the letter he gave the Tribunal from Fidaa Adrah, who claims to own the apartment he and the sponsor rent, made no mention of his rental payment negotiations the applicant said she is a nice and understanding person. The sponsor no longer receives Centrelink and gets some money from looking after her relative’s children. The parties gave evidence that once the applicant was granted a visa he would be able to work and contribute financially.

29. The Tribunal gave the applicant additional time after the hearing to provide documentary evidence about his financial situation. The applicant provided his and his sponsor’s individual bank account statements. The applicant’s account statement indicates he receives sporadic variable cash deposits. There is little indication the applicant’s account is used for day-to-day living expenses and the deposits appear to be mostly consumed on what the Tribunal considers discretionary spending. The sponsor’s account statement indicates she spends the small amounts that go into that account.

30. The Tribunal accepts the applicant going offshore to apply for the visa would likely be financially disruptive. This is a common situation for people who don’t meet the criteria to apply for a visa onshore. The applicant claims that he is not working while he is on a bridging visa and the Tribunal cannot see that his financial contribution would be any different if he was in Australia or offshore. The Tribunal is not persuaded requiring the applicant to go offshore to apply for the visa would result in such financial hardship to be considered a compelling reason for the waiver of the Schedule 3 criteria.

31. The parties gave evidence the sponsor was diagnosed with SLE at the end of 2018. She has suffered depression and stress and has needed to deal with her teenage children. The applicant gave oral evidence describing the symptoms of the sponsor’s medical conditions and the day-to-day assistance he provided her. The applicant said he helped the sponsor emotionally by being there for her during her son’s recent court issues. When asked for more detail he said it didn’t enquire about the issue because he didn’t want to pry, and he could offer little assistance other than walk the sponsor to the car and have coffee with her. The Tribunal had regard to the sponsor’s undated written statement. The sponsor said she and the applicant have been in relationship for five years. She has a single mother and he has supported her in that role. He supported her through legal difficulties she was having with her older son. He is an emotional support to her. The sponsor said she could now do most things such as toileting by herself.

32. The Tribunal gave the applicant additional time after the hearing to provide medical evidence supporting his claim about the sponsor’s medical conditions and the supports should requires that he provides. The applicant provided a medical certificate from Dr Swingler after the hearing saying the application should be considered on compassionate grounds because there were few flights out of Perth due to the Covid 19 restrictions.

33. There is no probative medical evidence that indicates either the applicant or sponsor would be any more impacted than any person separated from their partner for a time. The Tribunal acknowledges that the applicant having to leave Australia would have an emotional impact on the sponsor.  The Tribunal is not convinced there are any health issues of either the applicant or the sponsor that are compelling reasons in the circumstances of this case. The Tribunal is not convinced the emotional support provided by the applicant to the sponsor is a compelling reason to waive the Schedule 3 criteria.

34. The Tribunal accepts the Covid 19 restrictions have resulted in fewer flights. The Tribunal does not consider this a compelling reason to waive the Schedule 3 criteria.

35. Having taken into account all of the evidence before it, the Tribunal is not satisfied that there are, either separately or cumulatively, compelling reasons for not applying the Schedule 3 criteria in this case.

36. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

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

    DECISION

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

    P. Maishman
    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.