Gonzales (Migration)

[2017] AATA 1258

Gonzales (Migration) [2017] AATA 1258 (13 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Delia Relin Gonzales

CASE NUMBER:  1618315

DIBP REFERENCE(S):  BCC2014/2484412

MEMBER:Kira Raif

DATE:13 July 2017

PLACE OF DECISION:  Sydney

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)(a) of Schedule 2 to the Regulations

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

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 13 July 2017 at 3:17pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Compelling reasons – Unlawfulness – Substantive visa ceased in 2000 – Application made 28 days after the relevant day – Sponsor’s medical conditions – Genuine commitment

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2, Schedule 3, cl 820.211, cl 820.221, PIC 3001, r 1.15A(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 19 October 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 is a national of the Philippines, born in October 1956. She entered Australia in November 1999 holding a Subclass 456 visa, which expired in January 2000 and remained in Australia as an unlawful non-citizen after that date.

3. The applicant applied for the visa on 28 September 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor and also because the delegate found that the applicant did not meet PIC 3001 and found there were no compelling reasons for the waiver. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 13 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. Several witnesses attended the Tribunal hearing but the Tribunal determined it was not necessary to take oral evidence from these witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. 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).

6. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

7. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3).

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.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with her application a copy of the Marriage Certificate showing the marriage was registered in NSW In April 2014. There is nothing to indicate the marriage is not valid. The Tribunal is satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

11. The Tribunal has found some of the applicant’s evidence problematic. For example, she initially told the Tribunal that she never worked in Australia and never had any business interests. The Tribunal is mindful that the applicant entered Australia on the Subclass 456 Business visa which would have required her to show some intention to engage in business activities. It is not apparent that the applicant has ever had such an intention and that she has been truthful with Immigration when seeking that visa. The Tribunal is not convinced that the applicant would have remained in Australia unlawfully for a period of about fourteen years without ever working. When the Tribunal noted its concerns, the applicant changed her evidence and said that she worked as a housekeeper. The Tribunal has formed the view that the applicant was deliberately evasive when questioned about her employment and that she provided false information initially by claiming that she has not worked in Australia.

12. The applicant remained in Australia unlawfully for a period of about fourteen years. The applicant told the Tribunal she stayed in Australia because she was scared of her ex-husband’s family in the Philippines. In the Tribunal’s view, if there was any truth to that statement, the applicant would have sought protection in Australia rather than remain here unlawfully. The applicant claims she did not know the law but she had no difficulties finding out what was required when she made the decision to apply for the Partner visa. In the Tribunal’s view, the applicant’s lengthy stay as an unlawful non-citizen indicates her disregard for the Australian laws and, relevantly, her willingness to be untruthful with Immigration in order to remain in Australia.

13. Nevertheless, the Tribunal has formed the view that the applicant and the sponsor do have a genuine spousal relationship.

14. There is evidence before the Tribunal that the couple have established a joint household. The applicant’s evidence is that they started living together from the time of the marriage in April 2014. The applicant provided evidence that they informed the Department of Housing about the applicant’s residence at the sponsor’s place of residence. They gave consistent evidence about their daily arrangements. The Tribunal accepts that the applicant is responsible for most of the household chores and that they share shopping and some other responsibilities.

15. There are several statements from third parties and several friends and relatives were present to give oral evidence to the Tribunal. The couple’s oral evidence is that they maintain a good relationship with the sponsor’s family in Australia and attend social functions together. The sponsor also has frequent communication with the applicant’s children in the Philippines. The Tribunal accepts that the couple plan and undertake joint social activities. The Tribunal accepts that they represent themselves to others as being in a married relationship and that friends and relatives believe their relationship is a genuine one.

16. The applicant displayed good knowledge of the sponsor’s medical condition. Her evidence is that she cares for the sponsor, cooks and cleans for him and accompanies him to medical appointments. The Tribunal accepts that the applicant takes an active role in managing the sponsor’s condition. The Tribunal accepts that the sponsor relies on the applicant for support and comfort. The sponsor’s evidence to the Tribunal is that he married because he needed someone to care for him and the Tribunal accepts that the visa applicant has taken on that role. In the Tribunal’s view, that signifies the couple’s commitment to the relationship.

17. The couple have been married for a period of about three years. The Tribunal is satisfied that they rely on each other for comfort and support and that they view the relationship as a long term one.

18. The couple provided evidence of having a joint account. There is limited evidence of transactions in that account. The review applicant’s evidence to the Tribunal is that the sponsor’s Centrelink payments are made into the sponsor’s own account. She told the Tribunal the sponsor withdraws money from his own account and gives her cash and she sometimes deposits the money into the joint account. There appears to be no purpose in doing that. The Tribunal is also mindful that the applicant claims not to work and to have no income, so she cannot contribute to the joint account and on her own evidence, the only contribution she makes to the joint account is the cash the sponsor gives her. There appears to be no reason for the couple to open and operate a joint account and the sponsor confirmed in his oral evidence that the account was opened on the advice of their migration agent. The Tribunal has formed the view that the joint account was opened solely for the purpose of providing evidence to Immigration and the transactions in that account do not represent the couple’s sharing of resources.

19. However, the Tribunal accepts that the applicant has no income and that the couple rely entirely on the sponsor’s Centrelink payments. The Tribunal acknowledges the sponsor’s willingness to provide financial support to the applicant. The Tribunal also accepts the evidence that Centrelink has been informed about the marriage.

20. The Tribunal has considered all the circumstances of the relationship. There was limited evidence before the delegate and more evidence is before the Tribunal, including the oral evidence of the couple. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal accepts the couple live together. The Tribunal accepts their relationship is genuine and continuing. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore the applicant does not meet cl.820.211(2)(a) cl.820.221.

    Does the applicant meet Schedule 3 criteria?

21. The applicant provided to the Tribunal a copy of the primary decision record. It states that the applicant arrived in Australia in November 1999 holding a Subclass 456 visa, which expired on 15 January 2000. The applicant then remained in Australia as an unlawful non-citizen until she made the present application.

22. The Tribunal finds, having regard to that information, that the last day the applicant held a substantive visa was when her Business visa expired in January 2000. The Tribunal finds that the applicant was not a holder of a substantive visa at the time she made the application for the Partner visa in September 2014. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i). The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii).

23. 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.

24. The Tribunal has found that the applicant ceased to hold a substantive visa when her Business visa expired in January 2000. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As her application for the Partner visa was made in September 2014, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

25. 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

26. 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.

27. 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.

28. There are several medical reports relating to the sponsor. As noted above, the Tribunal accepts that the couple are in a genuine relationship and that the applicant takes an active role in helping the sponsor manage his condition. The Tribunal accepts that the condition is a serious one and the sponsor’s condition has been ongoing. He has undergone treatment and is under ongoing observations from health professionals. The applicant displayed good knowledge of the sponsor’s condition and the Tribunal accepts that the applicant accompanies the sponsor to medical appointments. The Tribunal also accepts that the applicant provides daily support to the sponsor and that such support is needed in light of his condition.

29. In the circumstances of this case, 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).

    Conclusion

30. 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

31. 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)(a) of Schedule 2 to the Regulations

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

    ·cl.820.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member