Hassan (Migration)

[2021] AATA 2159

Hassan (Migration) [2021] AATA 2159 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Hassan

CASE NUMBER:  2014280

HOME AFFAIRS REFERENCE(S):          BCC2016/3104116

MEMBER:Kira Raif

DATE:12 April 2021

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) visa:

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

Statement made on 12 April 2021 at 11:59am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – court remittal – applicant was not the holder of a substantive visa at the time of application – sponsor has significant illnesses – compelling reasons exist – strong degree of companionship and emotional support – Schedule 3 requirements  waived –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, Public Interest Criterion (‘PIC’) 3001, Schedule 3

CASES

Babicci v MIMIA (2005) 141 FCR 285
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 Immigration and Border Protection 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 is a national of Pakistan, born in November 1981. He travelled to Australia holding a Student visa in February 2010 and became an unlawful non-citizen in January 2011. The applicant applied for the Partner visa on 19 September 2016 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 because the delegate found that the applicant did not meet Criterion 3001 of Schedule 3 and found that there were no compelling circumstances to waive that requirement. The applicant  sought review of the delegate’s decision.  

3. In April 2018 the Tribunal (differently constituted) affirmed the decision. The applicant sought judicial review and in September 2020 the court remitted the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 12 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Consideration of claims and evidence

5. At the time the application was made, 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 (the Regulations).

6. 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). 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).

7. 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.

   Does the applicant meet Schedule 3 criteria?

8. The applicant provided to the first Tribunal a copy of the primary decision record. It indicates that the applicant first entered Australia in February 2010 holding a Student visa, which ceased in January 2011. The applicant had not been granted other visas and remained in Australia as an unlawful non-citizen until he made the application for the Partner visa that is the subject of this review in 2016.

9. The Tribunal finds, having regard to that evidence, that the applicant last held a substantive visa when his Student visa ceased in January 2011. He did not have a substantive visa since that time and he was not a holder of a substantive visa at the time the application for the Partner visa was made in 2016. 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).

10. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii). 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 he 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.

11. The Tribunal has found that the applicant ceased to hold a substantive visa when his Student visa expired in January 2011. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in September 2016, 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.

12. 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

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 provided a number of documents to the delegate and the Tribunal. in his evidence to the Tribunal the applicant addressed the various aspects of his relationship with the sponsor, providing evidence of joint social activities, financial records and other materials. The applicant provided several medical reports relating to himself and the sponsor. There are also character references relating to the applicant from his employer and a statement from the sponsor. The applicant refers to the situation in Pakistan due to Covid.

16. In oral evidence, the applicant also describes his relationship with the sponsor and states that they love each other and cannot be apart. The applicant states that an offshore application can take a long time. The Tribunal does not consider that the existence of a genuine relationship, even a long term relationship and the partners’ desire to be together, constitutes a compelling reason. In the Tribunal’s ivew, the existence of such a relationship, the parties’ reliance on each other and all that flow from such a relationship are the basic requirements for the grant of the visa.

17. The applicant states that he has spent 11 years in Australia and has a job in Australia and is settled here. In Pakistan he has nothing and would have to start from scratch. The Tribunal does not consider that to be a compelling reason partly because the applicant has spent considerable time in Australia as an unlawful non-citizen and partly because the applicant has never been granted a visa to remain in Australia permanently. That is, the applicant’s lengthy residence in Australia was either as an unlawful non-citizen or as a holder of a bridging visa. In such circumstances, the Tribunal does not consider that the length of the applicant’s stay in Australia, including his settlement in Australia, constitute a compelling reason for the waiver. This is also so in circumstances where the applicant may have to ‘start from scratch’ in Pakistan. Until the applicant is granted permission to remain in Australia, it cannot be assumed that he can remain in Australia. Further, the applicant has not established that he would be unable to re-establish himself in Pakistan, even if it may cause some hardship.

18. The applicant states that he looks after his partner physically and emotionally. He explained the nature of the assistance he provides, particularly in light of the sponsor’s medical condition. The Tribunal accepts the medical evidence that establishes that the sponsor has a number of serious ailments for which she needs ongoing treatment. The applicant displayed a reasonably good knowledge about the sponsor’s condition and the Tribunal accepts that  the applicant provides emotional support, as well as physical support to the sponsor, including with dressing the wound, accompanying her to medical appointment and helping with post-operative treatment, taking medication and other tasks. The Tribunal also accepts that the applicant helps with the daily routine and domestic chores. The same evidence was given by the sponsor.

19. The applicant provided a number of medical reports for himself. The Tribunal accepts that the applicant has a serious condition and requires a cochlear implant. The applicant states that he is on a waiting list and the best system for implantation and the operation is in Australia and it would be more risky in Pakistan where the facilities are not as good. Having regard to the medical evidence, the Tribunal accepts that the applicant has a serious condition and requires treatment. However, the applicant’s evidence is that the waiting list can take a few years and the applicant has not satisfied the Tribunal that his position on the waiting list may be jeopardised if he was to leave the country and return upon the grant of the offshore visa.

20. Overall, the Tribunal has formed the view that the sponsor’s medical condition and the applicant’s involvement in helping the sponsor and looking after the sponsor constitute, in the particular circumstances of this case, a compelling reason for not applying the Schedule 3 criteria.

21. 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

22. 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

23. 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)(ii) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member