Fu (Migration)

[2017] AATA 282

Fu (Migration) [2017] AATA 282 (16 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Linda Fu

CASE NUMBER:  1615091

DIBP REFERENCE(S):  CLF2013/243899

MEMBER:Margie Bourke

DATE:16 February 2017

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 16 February 2017 at 11:49am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary) – No substantive visa – Federal Circuit Court remittal – Compelling reason – Australian citizen child

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 820.211(2), Schedule 3, Criteria 3001, 3003, 3004

CASES

Waensila v MIBP [2016] FCAFC 32
MZYPZ v MIAC [2012] FCA 478
Babicci v MIMIA (2005) 141 FCR 285

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 19 March 2014 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 2 October 2013 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because the delegate was not satisfied the applicant meets the Schedule 3 criteria, and the delegate was not satisfied the applicant provided any compelling reasons why the Schedule 3 criteria should be waived.

4. The matter was remitted back to the tribunal by consent by order from the Federal Circuit Court for the reasons identified in Waensila v MIBP [2016] FCAFC 32, that a decision-maker is not confined in considering circumstances at the time of application when determining whether compelling reasons existed for the purposes of cl.820.211(2)(d)(ii).

5. The matter had been previously heard by the tribunal similarly constituted. At the time of the decision dated 28 May 2015 the tribunal made findings of fact in relation to matters that did not exist at the time of application, and therefore could not consider those facts as relevant as compelling reasons in relation to consideration of Schedule 3 criteria. The tribunal in applying the principles espoused in Waensila v MIBP that it is no longer confined to considering facts that existed at the time of application, now considers it should decide the review in the applicant’s favour on the basis of material before it, pursuant to s.360(2)(a) of the Act.

6. The following are reasons why the tribunal has concluded that this matter should be remitted to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

8. 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).

9. 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

10. 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.

11. The tribunal is satisfied that the applicant made the application for the partner visa on 2 October 2013. The tribunal is satisfied that the applicant last held a substantive visa on 15 March 2012. For the purposes of consideration of Schedule 3 criteria the tribunal is satisfied that 15 March 2012 is the relevant day.

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

    Compelling reasons

13. 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.

14. 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.

15. The tribunal has previously found in its decision dated 28 May 2015 that at the time of the first review hearing on 11 May 2015 based on medical reports provided the applicant was pregnant. The applicant has provided the tribunal with a letter from her doctor dated 27 September 2016 which confirms that the applicant is a patient of the medical centre, married to the sponsor and at the time the letter was written had an 11 month old son. The applicant also provided the birth certificate of her son, which recorded his date of birth in October 2015, the applicant is the mother and the sponsor is the father of the child. The applicant also provided a letter from her Maternal Child Health Nurse dated 28 September 2016. The tribunal has also considered a letter from the applicant’s partner and a letter from the applicant’s sister-in-law.

16. The tribunal is satisfied that the applicant has an Australian born child, and the father of her Australian born child is her partner and the sponsor in her application for the partner visa. The tribunal is satisfied that the applicant has a young child who was born in Australia in October 2015 and who resides with her. The tribunal is satisfied that the existence of the applicant’s young Australian citizen child amounts to compelling reasons for not applying the Schedule 3 criteria.

17. 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).

18. 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

19. 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.

    Margie Bourke
    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.