Gomez Cruz (Migration)

[2021] AATA 1567

Gomez Cruz (Migration) [2021] AATA 1567 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cristian Alejandro Gomez Cruz

CASE NUMBER:  1935400

HOME AFFAIRS REFERENCE(S):          BCC2018/2473581

MEMBER:David Crawshay

DATE OF ORAL DECISION:  4 March 2021

DATE OF WRITTEN STATEMENT:         6 April 2021

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) visa:

·cl 820.211(2)(d) of Schedule 2 to the Regulations.

Statement made on 06 April 2021 at 10:31am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsor and son’s health conditions – applicant provides financial and emotional support – real hardship to sponsor if applicant required to apply for visa from overseas – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 3, Schedule 3 criteria 3001, 3003, and 3004, cl 820.211(2)(d)(ii)

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 July 2018 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 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(d)(ii) because the applicant did not satisfy the Schedule 3 criteria and there were no compelling reasons for not applying those criteria.

4. The applicant appeared before the Tribunal on 4 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from the sponsor’s son, Master Anthony Iden Taylor. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) 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. The Tribunal gave a decision on the review at the conclusion of the hearing, concluding that the matter should be remitted for reconsideration. The following are the reasons for that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the Schedule 3 criteria and, if not, whether those criteria should not be applied.

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

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 evidence is that the applicant’s Visitor visa (FA-600) ceased on 23 March 2018, meaning that this is the relevant day. The applicant applied for the present visa on

    
    

    2 July 2018, which is more than 28 days after 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, reasons that are compelling should “force or drive the decision-maker” “irresistibly” to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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 applicant told the Tribunal that the sponsor suffers from an autoimmune condition which attacks her digestive system, causing her severe weakness and a lack of energy. The applicant said that she is not able to do anything at home during these times. He said that she does not want to eat due to stomach problems. He said that she experiences swelling of the joints and is unable to perform work under those circumstances. He said that he helps her in this situation by supervising her medication and doing housework. He said that the sponsor is bedridden for a day or two-at-a-time when this happens.

16. The Tribunal heard from the applicant that he works as a crane operator at a steel company five days-a-week from 7:00am until 3:30pm It asked him what scope he then has to be able to offer help when the condition flares up. He said that the sponsor’s son is usually at home. He said that, if required, he can leave his role and come home.

17. According to a letter from her treating gastroenterologist dated 9 December 2019, the sponsor presented with acute severe ulcerative colitis involving the whole colon in 2017 and has since been managed with anti-inflammatory medication. She is said to suffer from significant extraintestinal manifestations which give her severe joint pain and joint symptoms, and these limit her ability to work and to perform daily tasks. Her gastroenterologist stated that she experiences a deterioration in her health which is triggered by a number of factors including stress, followed by a recovery after this. He said that patients suffering from this condition are said to require significant psychological support as well as physical support, and gave his opinion that having the applicant in Australia to support her will “clearly” help her to control the condition.

18. The sponsor sought to describe to the Tribunal her condition and how the applicant helps her to control it. She said that she has been getting symptoms of her colitis constantly over the last two years – up to three times-a-month – due to stress. However, she said that she is currently faring better as the applicant has found a job and she has his support and his love.

19. The Tribunal heard from the parties about their stressed financial state whereby they claim to have significant vehicle and other debts. The sponsor told the Tribunal that the parties are able to make the debt repayments but she fears they will not be able to do so if the applicant were to go offshore. She said that she would not be able to work a second job as she needs to care for her son.

20. The Tribunal has seen evidence relating to the sponsor’s son, who has been living with psychological conditions for the last few years and has experienced difficulties at school to the point where he no longer attends. The sponsor told the Tribunal that the applicant is not able to converse much with her son owing to the language barrier, but he offers a fatherly figure at home and brings a calming influence to the house whereas the sponsor tends to be the opposite.

21. The sponsor’s son, Master Taylor, told the Tribunal that the applicant is very good to the sponsor, whom he treats with respect and love, and is there for them both. Master Taylor said that the applicant brings a calming influence. He said that he had not had the best childhood memories and feels supported by having a stable person like the applicant in his life. He said that he looks at the calm way the applicant handles situations and tries to model his behaviour on this.

22. The Tribunal has had regard to the evidence on the Department and Tribunal files and the testimony of the parties and the sponsor’s son at hearing. Based on this evidence, it finds that the sponsor is suffering from a serious health condition that flares up under stress. It finds that the sponsor has a number of risk factors for stress in her life – including her financial situation where she appears to shoulder sizeable debts and the situation with her son who is living with a number of psychological conditions. The Tribunal finds that the applicant provides a significant amount of emotional support to her as well as contributing financially to the relationship. As a result, the sponsor appears to be heavily reliant on the applicant. The Tribunal does not place adverse weight on the fact that the applicant is limited in the amount of physical support he can offer to the sponsor when her condition flares up as he is working during the week. It considers that the support he offers when he is present is enough to sustain the sponsor, and also that she appears to receive support from her son.

23. Overall, the Tribunal finds that there would be real hardship resulting from the applicant being obliged to leave Australia and apply for a partner visa from overseas. The sponsor would be deprived of the considerable emotional and financial support given by the applicant and would likely suffer great stress that would exacerbate her serious pre-existing condition. This alone is a compelling reason to not apply the Schedule 3 criteria and it is not necessary to consider the other claims submitted by the applicant.

24. 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) and therefore cl.820.211(2)(d).

25. 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

26. 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) of Schedule 2 to the Regulations.

    David Crawshay
    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.