Ghimire (Migration)

[2018] AATA 1143

Ghimire (Migration) [2018] AATA 1143 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Archana Ghimire

CASE NUMBER:  1700846

DIBP REFERENCE(S):  BCC2015/2723109

MEMBER:Justin Owen

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2018 at 9:23am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Compelling circumstances – Investment in a small business – Anxiety regarding temporary separation

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 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 of a delegate of the Minister for Immigration on 5 January 2017 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 17 September 2015 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. 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). The delegate found that the applicant was not the holder of a substantive visa at the time she lodged the partner visa application. The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the application, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 26 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

5. The applicant was represented in relation to the review by her registered migration agent. The agent attended the hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them.

   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.

10. The applicant provided to the Tribunal a copy of the Departmental decision record.  It indicates that the applicant entered Australia on a Student TU-572 visa on 16 September 2008.  On 3 November 2011 the applicant lodged an onshore Student TU-572 visa application and was subsequently granted a Bridging (subclass WA-010) visa.  On 26 November 2010 the applicant’s Student TU-572 visa was granted.  On 9 July 2012 the applicant lodged an onshore Student TU-572 visa application and was subsequently granted a Bridging (subclass WA-010) visa A.  On 8 February 2013 the applicant’s Student TU-572 visa was refused by the department,  On 15 February 2013 the applicant lodged an appeal with the then Migration Review Tribunal (MRT) to review the refusal decision made by the department.  On 11 December 2013 the MRT affirmed the department’s refusal.  On 24 December 2013 the applicant lodged an appeal with the Federal Circuit Court to review the decision made by the MRT.  On 14 January 2014 he applicant was granted a Bridging (subclass WB-020) visa B.  On 21 May 2014 the Federal Circuit Court affirmed the decision made by the MRT.  On 13 June 2014 the applicant lodged an appeal with the Federal Court to review the decision made by the Federal Circuit Court.  On 22 August 2014 the Federal Court affirmed the decision made by the Federal Circuit Court.  On 19 September 2014 the applicant’s Bridging (subclass WB-020) visa B ceased and the applicant remained in Australia unlawfully.  On 19 September 2014 the applicant lodged an appeal with the Minister to intervene on the decision made by the Federal Court.  Between 31 October 2014 and 11 August 2015 the applicant was granted a number of Bridging (subclass WE-050) visa E’s.  On 17 September 2015 the applicant whilst holding a Bridging (subclass WE-050) visa E lodged an onshore Partner UK-820/BS-801 visa application and was subsequently granted a Bridging (subclass WE-050) visa E.  On 1 October 2015 the Minister decided it was inappropriate to consider the applicant’s appeal lodged 19 September 2014.  On 1 October 2015 the applicant applied for permission to work, and on 22 October 2015 were granted a Bridging (subclass WE-050) visa E with full work rights.  On 5 January 2017 the applicant’s onshore Partner UK-820/BS-801 visa was refused by the department.  On 17 January 2017 the applicant lodged an appeal with the Tribunal to review the refusal decision made by the department.  The applicant currently remains the holder of a Bridging (subclass WE-050) visa E in association with this application.

11. 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 she 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. 

    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. The Tribunal finds that the applicant last held a substantive visa on 10 July 2012 when her student visa expired. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.

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

15. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

16. 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.

17. 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.

18. In response to questioning by the Tribunal as to what compelling reasons could potentially constitute reasons for a waiver of the Schedule 3 requirements, the main focus of the applicant’s assertions related to a business she had recently invested in.

19. The applicant submitted to the Tribunal a range of documents concerning a new coffee shop she had recently invested in with her sister and another party.  A copy of a contract for ‘Frank and Sue’s Café’ dated 7 February 2018 was submitted along with various ASIC and ABN registrations dated 23 January 2018.  The business is located at U8, 3 Sutherland Street, Clyde  NSW  2142. Photographs of the business have been supplied.   

20. The applicant stated to the Tribunal her ongoing presence and involvement in the business was vital.   At the hearing itself the applicant submitted an email dated the day of the hearing from one of her two business partners, Ms Anuja Ghimire.  The applicant said this was her sister.  The correspondence stated that the business plan is to operate the coffee shop or café for breakfast and lunch solely by the three of the partners on a rotating basis.  Ms Anuja Ghimire stated that she has a two month old baby.  Ms Anuja Ghimire also provided a maternal and newborn discharge summary purported to be from Auburn Hospital that states an unnamed male child was born to her on 26 December 2017. Ms Anuja Ghimire in her correspondence also states that the other partner, Ms Maunata Khadka Karki, is pregnant with her second child.  An imaging request supplied by Ms Anuja Ghimire from Dr Min Fang suggests Ms Karki’s child is due on 22 August 2018.  Ms Anuja Ghimire in her correspondence states that given the new child and the impending child, both she and Ms Khadka will be unable to give their full-time to the business as they will be taking care of children and needing to rest respectively.  She writes that therefore the other partners in the business need an ‘immense’ amount of help and time from the applicant to operate the new café.  Ms Anuja Ghimire writes that the applicant’s over eight years of managing a small food business will be an asset for their new business and she and the other partner Ms Karki ‘are expecting a lot of commitment from her.’  Ms Anuja Ghimire goes on to state that it will be ‘really hard for us financially and mentally to employ outside staff.’ 

21. The Tribunal sympathises with the applicant as she attempts to build a new small business in the highly competitive food and hospitality sector.  The Tribunal accepts that the applicant intends on playing an important role in the business. However, the Tribunal is mindful that the applicant is applying for a Partner visa.  It is not an employment visa and is not based on her employment and the assistance she provides to the business.  The Tribunal is not convinced that the applicant’s employment and business plans constitute compelling reasons for the waiver.

22. The sponsor in oral evidence stated that he and the applicant will ‘suffer a lot’ and the applicant would lose the business if she were to leave Australia temporarily and make an offshore Partner application. The Tribunal however notes that this business has only been established over the last month. The business names and was registered with the Australian Securities and Investments Commission on 23 January 2018. The applicant exchanged contracts on 7 February 2018 but it is not due to settle until March 2018 when the remaining $20,700 of the $23,000 purchase price for the business is due to be paid. The applicant in oral evidence said they hoped to open the business sometime next month. The Tribunal notes therefore that the applicant’s other two business partners were with their new child and pregnant expecting a child respectively when they entered into this business partnership with the applicant. There is no evidence that the applicant was unaware of the personal circumstances of her two business partners when she entered into this contract for the sale of the business voluntarily on 7 February 2018. The Tribunal considers the applicant was well aware of the personal circumstances of her two business partners – one her sister – when she entered into a partnership and signed a contract to purchase this business less than three weeks ago. The Tribunal enquired of the applicant if she considered her uncertain visa status before recently entering into this new business partnership. She replied she was very positive she would receive a favourable visa decision. The Tribunal does not consider the circumstances of the applicant’s two business partners and their potential impact upon the business represents compelling reasons to waive the Schedule 3 requirements.

23. The applicant and the sponsor both raised in oral evidence their desire to purchase residential property as a compelling reason for a waiver of the Schedule 3 requirements. The Tribunal notes the conditional approval for a loan that the parties received from the Commonwealth Bank for six months from 30 March 2017. The Tribunal accepts that the applicant and sponsor desire to purchase a residential property at some point in the future. The Tribunal does not consider that they will be precluded from doing this should the applicant have to temporarily move offshore to make a Partner visa application. The Tribunal does not consider the desire to jointly purchase a property represents a compelling reason.

24. At the close of the hearing the sponsor said he had some health issues. The sponsor stated to the Tribunal that he had not been to hospital over any of these issues but he thought he had those issues. He said that he had felt some anxiety. No corroborative evidence was presented to the Tribunal to substantiate this claim of anxiety or any other mental health issues. The Tribunal notes that no corroborative evidence substantiating this claim was previously submitted to the department. The applicant did not raise the sponsor’s mental health as a compelling reason for a waiver of the Schedule 3 criteria in her own oral or written evidence. There is no evidence before the Tribunal of any treatment that the sponsor has been undergoing. There is no evidence of a mental health plan or any other programme that the sponsor has been undertaking. The applicant’s representative stated to the Tribunal that the sponsor had not discussed these mental health issues with her before and she wished to obtain additional evidence. The Tribunal agreed to consider any evidence that was submitted to the Tribunal on this matter up until the time of decision. Nothing further was received at the time of decision.

25. Nevertheless the Tribunal accepts the evidence that the sponsor feels some anxiety and stress about a temporary separation and the applicant potentially returning to Nepal to lodge a Partner visa application offshore. It is reasonable to expect a level of emotional hardship to be experienced if partners are separated from one another for any extended period of time. This is a common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident. Although emotional hardship can be considered a compelling factor in relation to the Schedule 3 criteria, the sponsor has not provided sufficient evidence to substantiate such claims and demonstrate the severity of the anticipated hardship and how it would differ to that experienced by other couples required to separate whilst they await an offshore application. The Tribunal also notes that if this relationship is genuine, the applicant will be eligible to apply for a Partner visa in the future and any period of separation is likely to be temporary. In the circumstances of this case, the Tribunal does not consider that the period of temporary separation – and the sponsor’s claimed stress and anxiety about this matter - gives rise to compelling reasons for the waiver.

26. The Tribunal furthermore is not convinced that emotional support can only be provided when the couple reside under one roof. There is no reason why the same level of support could not have been provided if the applicant was to live and reapply for a Partner Visa outside Australia. That is, the Tribunal is not satisfied that the level of emotional support would be any different if the waiver is not applied. It is not unusual for couples to live separately for a period of time and that should not preclude the provision of emotional support, if this relationship was genuine. The Tribunal therefore does not consider these circumstances as justifying a waiver of the Schedule 3 criteria.

27. The sponsor in oral evidence also expressed concerns as to who would look after him if he fell sick in Australia. The applicant stated in oral evidence that the sponsor didn’t have many friends. The applicant said both the sponsor’s parents had passed away and they had not discussed the matter much because he didn’t like to discuss his loss. The sponsor said he didn’t have family to look after him. The Tribunal notes that the sponsor has been in active full-time employment with Coles for seven years. He has held down employment both at Coles Merrylands and other stores in the chain. The Tribunal does not accept that the sponsor will be essentially helpless if the applicant was to apply for a Partner visa off-shore. There is no evidence before the Tribunal of any incapacity or any other condition that would affect his ability to live independently. The Tribunal asked if there was any reason the applicant and sponsor could not continue to communicate with each other whilst the applicant was offshore. The sponsor agreed that they could do that. In the Tribunal’s view, the sponsor would be quite capable of independent living. The Tribunal does not consider these as compelling reasons to exercise the waiver of the Schedule 3 requirements.

28. The applicant stated in oral evidence that she has been living in Australia for about ten years and Australia is her home. She said she returned to Nepal for two months about five years ago but she cannot stay there. The Tribunal accepts that the applicant prefers to remain in Australia but the Tribunal does not accept the applicant’s evidence that she is not able to return to Nepal or that she is unable to re-establish life in Nepal because of the length of time she has spent in Australia or for any other reason. The Tribunal is not satisfied that the applicant’s unwillingness to return to Nepal constitutes, in the circumstances of this case, a compelling reason for the waiver.

29. The Tribunal enquired of both the sponsor and applicant if they would be able to work in Nepal should the applicant have to make an offshore Partner visa application. The Tribunal noted the applicant’s history of training and employment in food and beverage. The Tribunal enquired if these skills could be used offshore in Nepal. The sponsor said this would not be possible. He said that whilst working in food and beverage was fine in Australia, it was not the case in Nepal. In Nepal he said he and the applicant have a higher status and would work in an office. The Tribunal appreciates that society in Nepal may have different views on work to Australia or other parts of the world. Nevertheless the Tribunal is not convinced that the applicant or the sponsor would be unable to obtain employment if either was to be in Nepal whilst an offshore Partner visa application. The Tribunal does not consider this as a compelling reason for any waiver of the Schedule 3 requirements.

1. The Tribunal referred the applicant to the decision record of 5 January 2017 and the compelling reasons the applicant at that time put forward for review. 

2. The Tribunal noted that the applicant had stated that when she applied to renew her Student visa in late 2011 (which was not granted) she was in an ongoing case with the department concerning the refusal of that visa. The applicant in oral evidence said she had been studying commercial cookery and had completed her Certificate 3 and Diploma. She believed her visa application was rejected because she was unable to provide the certificate for these courses because of the fact her college had closed down. She stated to the Tribunal that some of her friends had obtained residency through completing commercial cookery courses where they had obtained a certificate. The applicant said she was studying when her visa was refused. She said she was unaware of where her certificate is. She stated that furthermore she had never been refunded the monies from her course by the former education provider. The Tribunal notes that departmental records show that the applicant lodged an onshore Student visa application on 9 July 2012 (rather than 2011) where she provided details of three enrolments. All three enrolments were cancelled on 27 July 2012 for non-commencement of these studies. The Student visa application was subsequently refused on 8 February 2013. Unsuccessful appeals against this decision were made by the applicant to the then Migration Review Tribunal, the Federal Circuit Court and the Federal Court to review this decision to refuse the Student visa application. The Tribunal notes that the applicant then lodged an appeal with the Minister on 19 September 2014. The applicant lodged her Partner visa application on 17 September 2015 and on 1 October 2015 the Minister decided, given this new application, the applicant’s appeal was inappropriate to consider. The Tribunal accepts that the Department’s records are an accurate record of the applicant’s migration history. The Tribunal does not consider the applicant’s previous Student visa application to be a compelling reason for a waiver of the Schedule 3 criteria for the Partner visa application which is currently before it.

3. Whilst the applicant may be able to lodge a valid application visa for a Partner visa in Australia whilst her request for intervention concerning her Student visa was still before the Minister, the applicant is still subject to the criteria applicable to the application. The applicant chose to lodge a Partner visa application whilst holding a Bridging (subclass WE-050) visa E, and is therefore subject to Schedule 3 criteria. The Tribunal does not consider the applicant’s previous legal case with the department or her request for Ministerial intervention concerning her Student visa represents a compelling reason to waive the Schedule 3 requirements.

4. The Tribunal also noted the applicant’s previous claim that her family was adversely affected by an earthquake in Kathmandu on 25 April 2015 in terms of health, finance, security and mentally. The applicant had previously claimed as a compelling reason that if she were to return to Kathmandu her family would have to bear further pressure. The applicant in oral evidence to the Tribunal said from the day of the earthquake she has had to look after her parents after their house collapsed and her brother’s salary is not enough as he is looking after his own family. There is no evidence before the Tribunal however of the support the applicant is providing the family from Australia, how her presence in Kathmandu would bring further pressure to bear on her family or the ongoing impact the earthquake has had upon her family. Given the lack of any corroborating evidence before the Tribunal, the Tribunal does not view these claims as compelling reasons to waive the Schedule 3 criteria.

5. The Tribunal noted the applicant had previously raised political clashes in Kathmandu that were making it more difficult to lead a healthy life there. The Tribunal enquired if the applicant had anything to say concerning this matter. The applicant declined. There is no evidence before the Tribunal to demonstrate how these past political clashes would impact upon the applicant and cause her to be unable to return to Nepal and make an offshore Partner visa application. There is no evidence submitted to the Tribunal in support of the claim of political clashes. The Tribunal does not consider this matter to be a compelling reason to waive the Schedule 3 requirements of the applicant’s Partner visa application.

6. The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

7. There is no evidence or suggestion the alternative criteria in cl.820.211(3)-(9) apply.

   DECISION

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

   Justin Owen
   Senior 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.