D'Angeli (Migration)

[2019] AATA 3676

D'Angeli (Migration) [2019] AATA 3676 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roberto D'Angeli

CASE NUMBER:  1702150

HOME AFFAIRS REFERENCE(S):           BCC2016/3002055

MEMBER:M. Edgoose

DATE:14 March 2019

PLACE OF DECISION:  Melbourne, Victoria

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 14 March 2019 at 9:49am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – compelling reasons to waive Schedule 3 criteria – relationship for the purpose of gaining a migration outcome – impact of separation on Australian spouse – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 820.211; Schedule 3

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 Immigration and Border Protection 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 8 September 2016 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(2)(d)(ii) because the Schedule 3 criteria applied and there appeared to be no compelling reasons for waiving the relevant requirements.

4. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Concetta D’Angeli, who is the applicant's sponsor and wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian 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

   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. The applicant last held a substantive visa on 15 July 2012. This application was filed on 8 September 2016. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

11. 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.

12. 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.

13. The applicant’s immigration history in Australia is reflective of his intentions to do whatever possible to gain a migration outcome and remain in Australia. The applicant first arrived in Australia on 21 November 2009 on a Working Holiday (Web) (TZ 417) visa which ceased on 21 November 2010. On 23 November 2010 the applicant was granted a 570 student visa which ceased on 25 February 2011. The applicant was granted a further student visa on 1 December 2011 which ceased on 15 July 2012. This was to be the applicant’s last substantial visa. On 3 June 2012 the applicant lodged an application onshore for a Temporary Work (Skilled) 457 visa and this application was refused in August 2012. The applicant lodged a review of this decision to the Migration Review Tribunal and the decision was affirmed on 15 January 2015. The applicant then requested Ministerial Intervention on 12 February 2015 and the applicant’s application was not referred to the Minister, as he did not meet the English language proficiency requirements. On 4 May 2016 the applicant lodged an onshore application for a Medical Treatment UB 602 visa and this application was refused on 6 May 2016. The applicant lodged a review with the Administrative Appeals Tribunal and this decision was affirmed on 25 July 2016. The applicant then requested Ministerial Intervention on 22 August 2016 but the application was not referred to the Minister. The applicant was advised by the Department that he could apply for a Partner visa onshore. The applicant lodged this Partner visa application on 8 September 2016 when it was evident that the applicant’s options for remaining in Australia had narrowed. This application was refused by the Department on 18 January 2017. The applicant is currently on a Bridging visa C.

14. The Tribunal has serious concerns about the applicant and sponsors motivation for entering into a relationship when they did and to its overall genuineness and integrity. At the time the applicant and sponsor entered into the relationship the applicant was due to depart Australia and return to his home country of Italy. The sponsor stated at hearing that she did not want the applicant to depart Australia and return to his home country and sought a divorce from her ex-husband in May 2016. The applicant and sponsor were married on 28 August 2016. At hearing the Tribunal asked the applicant on several occasions the date on which he was married and after a short adjournment for the applicant to consult with his migration agent about the date of his wedding the applicant responded that he was married on 28 August 2016. The Tribunal put the same question to the sponsor who promptly responded that she was married on 28 August 2016. The Tribunal is satisfied that the applicant and sponsor are married and acknowledge the marriage certificate submitted to the Department (Department file 32). However, the Tribunal, for the reasons mentioned above, has questions as to whether the relationship was entered into for the sole purpose of gaining a migration outcome.

15. At the hearing the applicant stated to the Tribunal that the sponsor’s son, ex-husband and several friends attended the wedding on 28 August 2016. The sponsor’s two daughters did not know about the wedding. The relationship between the sponsor and her two daughters deteriorated after the applicant became part of their lives. However, in recent times the sponsor helped one of her daughters financially after she went through divorce. The applicant stated that the sponsor is missing not spending time with her daughters and her grandchildren. The sponsor stated that her daughters are very strict about their Catholic faith and could not cope with the fact that their mother had remarried someone so young.

16. The age difference between the applicant and sponsor is 23 years. The applicant’s date of birth is 20 May 1978 and he is 40 years of age. The sponsor’s date of birth is 23 August 1955 and she is 63 years of age. The Tribunal notes the applicant did not appear concerned about the age difference; however, the sponsor stated that she found the age difference difficult, especially when appearing in public, and was also concerned that the applicant may leave her for a younger woman.

17. The applicant first met the sponsor in 2010 when the applicant started working for the sponsor’s ex-husband as a labourer and painter. At the time he was living in Carnegie. To this day the applicant works as a subcontractor with the majority of his work through the sponsor’s ex-husband. The applicant stated that he continues to work five to six days a week and that the sponsor does not work and relies on his income.

18. The relationship developed as a result of the sponsor assisting the applicant with his IELTS English test preparation and spending a considerable amount of time together. The applicant stated that the relationship developed over time and that the sponsor was more interested in him than he was in her due to the age difference. The applicant stated that he was just enjoying the good times with the sponsor and over time the relationship became stronger and stronger. At the time the relationship started the applicant was living in Carnegie and when they married they moved into a home in Craigieburn, which was and still is owned by the sponsor and her ex-husband. The ex-husband was living in another house owned by the sponsor and ex-husband in Lalor. At the hearing the applicant and sponsor stated that they now live in the house in Lalor and the sponsor’s ex-husband now lives in the house in Craigieburn.

19. The Tribunal asked the applicant how the sponsor would cope if he had to return to his home country of Italy. The applicant responded that if he had to return to Italy the sponsor would be destroyed and her life would be destroyed completely. The applicant further added that he would not be happy if he had to return to Italy and believes that the Australian government doesn’t care. He stated that, ‘I don’t believe the immigration care about the outcome. I would be destroyed by the decision but my concern is what would happen to his [sic] wife’s life as it would destroy her’. The Tribunal asked the applicant how he views the sponsor’s frame of mind at the moment. The applicant responded by stating the sponsor is lost, and at times she is okay, but at other times she is confused.

20. The Tribunal asked the sponsor how she would feel if the applicant had to return to Italy. The sponsor responded by stating that it would be just another blow: ‘I depend on him and he is the only one who provides me with the emotional support’. The sponsor further stated that she can’t imagine her life without the applicant: ‘he is my life and support’. The sponsor further stated that she could not depart Australia with the applicant if he had to return to his home country of Italy, because her 89-year-old elderly father requires her support and that her three sisters and brother don’t do anything to support her elderly father.

21. The Tribunal has had regard to the Confidential Psychological Report written by Dr Peter Cook dated 5 March 2019 (AAT folios 41–50) in regards to the sponsor. The Tribunal was granted permission by the sponsor at hearing to discuss the contents of this psychological report. The Tribunal noted the first psychological report was made on 5 March 2017. The report dated 5 March 2019 stated the following:

    At the time of preparing the report in 2017 I had read a referral document (dated 12 January 2017) provided by Mr D’Angeli’s legal representative. It set out background issues and provided relevant legal information. I interviewed Mrs D’Angeli for two hours (on 13 January 2017). Mr D’Angeli accompanied Mrs D’Angeli and he provided some limited input.

    Diagnostic considerations

22. The psychological report (AAT folio 44b) stated at page 14:

    When seen in 2017 Mrs D’Angeli’s presentation and reported symptoms indicated the presence of an Adjustment Disorder with Anxiety and a Pervasive Depressive disorder (in partial remission). Her condition had notably deteriorated by 2019.

    I gained the impression that the deterioration in Mrs D’Angeli’s condition related to the imminent decision regarding her husband’s tenure in Australia. She was extremely pessimistic in that regard and doubted her capacity to cope without him.

    It also appeared that Mrs D’Angeli attempts to use denial and distraction to deal with emotional issues. Her lifestyle has become extremely restricted and she is no longer in receipt of psychological treatment. It is likely that these factors combine in the genesis of her worsening condition.

23. At hearing the sponsor informed the Tribunal that she has not received ongoing psychological help and the last time she did was after the death of her mother in 2009. The applicant stated to the Tribunal that he has pushed for the sponsor to go to a psychologist; however, he was not able to confirm whether she did or not as he stated that he works six days a week.

    Mrs D’Angeli described a complex history. She suggested that her emotional difficulties had commenced when her mother died in 2009. However her description of choking attacks going back as far as 17 years ago suggest longer term psychological difficulties, particularly as she reported that there is consistent opinion on the behalf of specialists that these attacks and her mouth pain are of psychogenic origin. I note that in 2017 she took higher levels of over the counter analgesics and an anti-inflammatory and that she said she takes such medication to help with her nerves. She has reduced this medication use but continues to take high levels of Panamax.

24. At hearing the sponsor informed the Tribunal that she had reduced her intake of over-the-counter medicines and that she had decreased her intake of Panamax from eight per day. The applicant informed the Tribunal that the sponsor is convinced that Panamax is a good medicine. The applicant further stated that the sponsor had seen a doctor to start with but had then self-diagnosed which the applicant did not agree with.

    It appeared that in the past Mrs D Angeli was somewhat dependent on alcohol as a means of calming her emotions. In March 2019 she reported that this use has decreased.

25. In the summary and opinion section of the Psychological Report dated 5 March 2019 (AAT folio 42b – Psychological Report, page 18, paragraphs 13–15) stated the following:

    Mrs D'Angeli was adamant that she could not accompany Mr D'Angeli to Italy while he pursued an offshore visa application as her elderly father's health is deteriorating and she has a central role in caring and supporting him. She also believes that she wouldn't cope emotionally being away from all that is familiar to her and has significant concerns regarding her health. As noted, it appears that Mrs D'Angeli has hypochondriacal tendencies and these would intensify were she to reside in a situation in which she believed she couldn't access assessment and treatment This would result in a worsening of her overall psychological condition.

    It appears highly likely that there would be considerable deterioration in Mrs D'Angeli's psychological condition if Mr D'Angeli had to leave Australia for 12 to 18 months to pursue an offshore visa application. Based on her report (and input from her treating psychologist) she has a long history of psychological difficulties. Such a history constitutes a crucial risk factor with respect to the possibility that Mrs D'Angeli's emotional difficulties would become more entrenched and severe if a significant period of separation from Mr D'Angeli occurred. Her psychological difficulties are significant and she has limited emotional coping resources and heightened vulnerability.

    There is abundant evidence indicating that vulnerability to emotional deterioration increases both in response to the persistence of psychological difficulties and to the individual encountering additional stress. With respect to Mrs D'Angeli's ongoing psychological wellbeing it is crucial that she is not exposed to further significant stress and that she is provided with ongoing support, such as that currently provided by Mr D'Angeli. There is considerable possibility that if separation from Mr D'Angeli occurs, Mrs D'Angeli's emotional difficulties would worsen, with potential for long term adverse consequences. There is a likelihood that her Pervasive Depressive Disorder would worsen and a chronic Major Depressive Disorder develop with ongoing consequences and treatment needs.

26. The Tribunal accepts the findings of the psychological assessment made by Dr Peter Cook, a clinical psychologist, regarding the sponsor Mrs D’Angeli.

27. The Tribunal in reaching its decision is not making an assessment about whether the parties are in a genuine and continuing spouse relationship, which is a much higher test. Nonetheless, where an Australian citizen claims they need the support of the applicant due to psychological issues, 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).

28. 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

29. 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

    M. Edgoose
    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.