Dang (Migration)

[2018] AATA 3596

Dang (Migration) [2018] AATA 3596 (17 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Chinh Dang

CASE NUMBER:  1622160

DIBP REFERENCE(S):  BCC2016/1854582

MEMBER:Ian Garnham

DATE:17 August 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) of Schedule 2 to the Regulations

Statement made on 17 August 2018 at 3:05pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether the applicant satisfies the relevant Schedule 3 criteria – Applicant’s lack of substantive visa within the control of the applicant – Whether there are compelling reason for waiving the Schedule 3 criteria – Where the sponsor is financially dependent on the applicant – Where the sponsor is pregnant – Welfare of the sponsor and child constitutes a compelling circumstance – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d), Schedule 3, Criteria 3001, 3003, 3004

CASES
0800180 [2009] MRTA 135
Babicci v MIMIA (2005) 141 FCR 285
Liu, Hong [2002] MRTA 3613
MZYPZ v MIAC [2012] FCA 478
Secretary, Department of Social Security v Calin-Al Secara & Ors [1998] FCA 1510
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

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 8 December 2016 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 26 May 2016 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.820.211(2)(d) because they were not satisfied that they were able to satisfy the Schedule 3 criteria and there were not compelling reasons to waive the Schedule 3 requirements.

4. The applicant appeared before the Tribunal on 24 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his wife and sponsor, Nguyet Thi Pham, his mother in law, Hong Thi Nguyen, and mutual friends, Nhi Minh Tu and Tung Van Pham

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

6. The applicant was represented in relation to the review by his registered migration agent.

7. Following the hearing a submission dated 15 June 2017 (the submission) that responded to issues raised at the hearing pursuant to section 359AA of the Act was provided to the tribunal.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicant meets the Schedule 3 criteria and, if not, whether, in the circumstances of the case, there are compelling reasons why the Schedule 3 criteria should be waived.

SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

10.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).

11.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

12.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.

13.In this case this is the last day that the visa applicant held an effective substantive visa.  This is the day his subclass 573 visa was cancelled, 3 May 2016.  This application was lodged on 26 May 2016.

14.As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

Criterion 3003

15.Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

Criterion 3004

16.Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

17.Subclause 3004(c) of Schedule 3 to the Regulations requires that;

the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control.

18.In this case the visa applicant’s subclass 573 Student visa was cancelled on 3 May 2016 because he failed to maintain enrolment in a registered course.  This means that he was without a substantive visa for 23 days before this application was lodged.

19.In response to the Department’s (DIBP’s) Notice of Intention to Cancel (NOIC) the visa applicant’s student visa, issued on 5 April 2016, he submitted that[1]; initially his study was successful but in early 2015 his parents experienced severe financial difficulties due to a decline of their business.  As a consequence they were unable to financially support the visa applicant’s studies.  As a further consequence his parents began trouble to each other and all of this led to the visa applicant experiencing a high level of stress and becoming depressed and anxious.  He provided evidence of deferrals from the course he was originally enrolled in for the periods; 28 May 2014 to 20 July 2014 and a further deferral (made on 29 May 2014) for the period 2 March 2015 to 2 August 2015.  He also provided evidence of recent enrolment involvement in different courses and a medical certificate stating, that he had reported, he was suffering from stress and unfit for school from February 2015 to 09/04/2016.    

[1] At F: 71 (DIBP)

20.The Visa Cancellations Officer noted that the visa applicant had enrolled in the new courses after he had received the NOIC.  They also noted that no weight could be attached to the second deferral because it was made 10 months in the future.  Furthermore little weight could be attached to the medical certificate because it was made retrospectively based on the visa applicant’s self-reporting of stress.  They also noted that all of the fresh enrolments were made by the visa applicant after the NOIC had been received and therefore did not represent a spontaneous attempt to continue his study.  In conclusion, the Visa Cancellations Officer was satisfied that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.  

21.Before the tribunal the visa applicant also argued that his grandfather was ill in 2015 and this contributed to his and his parents’ difficulties.  He also said that in 2015 he became depressed and was initially attending his course 1-2 days/week but should have been attending for 3 days/week.

22.The visa applicant also said that he called his family in Vietnam seeking to come home at this time but they encouraged him to stay in Australia.  Later on when he had formed a relationship with the sponsor he claims his registered migration agent told him there was no longer any need to continue studies because he would be lodging a Partner visa application in due course.

23.The question before the Tribunal is whether the above factors, which caused the visa applicant to be without his substantive student visa when he lodged the partner visa application, were factors beyond his control.

24.In previous Tribunal decisions[2] concerning the application of Schedule 3 factors in subclass 457 cases, the Tribunal has found that failure by migration agents to lodge applications when the applicants held a substantive visa and had provided all the necessary application information, constituted a factor beyond the control of applicants. There is no evidence before the tribunal that these facts applied in this case and it has not been suggested that the lodgement of the partner visa application was delayed by the registered migration agent.

[2] Liu, Hong [2002] MRTA 3613

25.In a similar case involving different factors[3]  the predecessor of this Tribunal (Migration Review Tribunal of Australia (MRTA)) refers to two points that were made by Smith FM in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 when referring to the judgement of Mansfield J in a different case[4] when discussing the phrase, beyond a person’s control in a case considering issues arising under trademarks and social security legislation.  The two points are as follows:

[3] 0800180 [2009] MRTA 135

[4] Secretary, Department of Social Security v Calin-Al Secara & Ors [1998] FCA 1510

The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense "subjective", rather than being directed at deciding what would have been beyond the control of an abstract or "reasonable" person. A second point, is that what is "beyond control" should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision. (at 17)

26.In this case, as to the first point, it is straightforward that when the visa applicant stopped studying, or reduced his study load he did nothing to ameliorate the circumstances of this with the Department (DIBP).  I acknowledge that he did contact the institution and managed to get a deferral and a leave of absence for some of the period he was not studying.  However he did nothing with respect to contacting DIBP to seek help or check his visa status and ensure compliance with his visa requirements.  Based on the information before the tribunal about the visa applicant’s circumstances, I am satisfied that when he ceased studying up until the student visa NOIC was received, the visa applicant was in a position to prevent the visa being cancelled or to apply for an alternative substantive visa.    

27.I also acknowledge that the visa applicant claims he was suffering from stress during this time and has retrospectively sought to have this verified by a medical practitioner.  However, the condition is totally self-reported[5] and the facts indicate that at that time he had the wherewithal to seek a formal deferral from his academic institution.  This indicates that he was also aware of the visa condition that he must be enrolled in a registered course but he did nothing to correct his status with DIBP.  I find that to have done so was within the control of the visa applicant in both a practical and realistic sense.        

[5] at F: 118 (DIBP)

28.For the above reasons, the applicant does not satisfy criterion 3004.

Compelling reasons

29.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.

30.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.

Relevant background:

31.The sponsor first came to Australia from Vietnam in March 2009.  She claims one previous relationship that led to her permanent residency in Australia.  She married on 14/11/2009 and divorced on 26/03/2005.  The sponsor became an Australian citizen on 02/07/2015[6].  The visa applicant claims he has had no previous relationships.

[6] At F: 44 (DIBP)

32.The parties claim they met in May 2015 and married a year later on 25 May 2016[7].  They claim that in February 2016 their parents met in Vietnam and agreed to the marriage.  They claim they began living together immediately after marriage and opened a joint bank account on 28 May 2016[8].  

[7] at F: 97 (DIBP)

[8] at F: 58 (DIBP)

Policy considerations:

33.The relevant Departmental policy guidelines are contained in the Procedures Advice Manual (PAM3).  

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

·Fail to comply with their visa conditions or

·Deliberately manipulate their circumstances to give rise to compelling reasons or

·Can leave Australia for a partner visa outside Australia.

35.In the submission it is stated, and I acknowledge that the visa applicant has not been unlawful during his time in Australia.  However the evidence he provided in response to DIBP following the NOIC demonstrates he re-enrolled in new courses of study on 15/04/2016, which is 10 days after he received the notice.  This also indicates he was fully aware of his failure to comply with the conditions of his visa when he ceased enrolment and study in his registered course. 

36.At the hearing he said he sought review of the decision to cancel his student visa because he considered that the decision to do so was unfair.  However he failed to attend his AAT hearing and his case was dismissed because of this.[9]

[9] 1606511

37.At the hearing and in his response to the NOIC the visa applicant expressed his remorse at allowing this to happen.  In addition, I have had regard to the statements of the witnesses at the hearing who all attested to the genuineness and continuing nature of the relationship of the parties and the good character of the visa applicant.  I have also had regard to the statement provided by the Parish Priest of the church attended by the visa applicant for over 5 years.[10]

[10] at F: 67 & 68 (AAT)

Putative compelling reasons:

38.In the submission and at the hearing the visa applicant has argued that there are 2 compelling reasons why the Schedule 3 criteria should be waived:

·The visa applicant is now the sole wage earner of the family and the sponsor is financially dependent on him for support. 

·The sponsor claims her first marriage was unsuccessful and she is emotionally attached to the visa applicant and the support he provides for her.

39.At the hearing the sponsor said she was previously working as a chicken boner but due to repetitive strain injuries she is no longer able to do this.  She has begun studying English hoping to re-skill herself to obtain a different type of employment.  

40.The visa applicant claims he obtained work with a friend doing carpentry for 15 hours a week at $20/hour.  If this works out and he is able to get full work rights he hopes to begin a full-time apprenticeship.  He also said he no longer wants to study but to support the sponsor in her study so that she can gain a better job.

41.On 24 January 2018 the parties provided a further submission to the tribunal with evidence that the sponsor is now pregnant with their first child due on 24 August 2018[11].   

[11] at F: 79 (AAT)

42.The parties have now provided significant evidence of the ongoing and genuine nature of their relationship. Moreover they have provided evidence of the sponsor’s dependence on the visa applicant for financial and emotional support. I consider they have demonstrated circumstances that are compelling and directly impact upon the sponsor and their unborn child’s welfare whereby waiving the Schedule 3 requirements is justified.

43.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).

44.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

45.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) of Schedule 2 to the Regulations

Ian Garnham
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.