Kantachan (Migration)

[2018] AATA 5115

Kantachan (Migration) [2018] AATA 5115 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rossarin Kantachan

CASE NUMBER:  1709284

DIBP REFERENCE(S):  BCC2016/4186003

MEMBER:Hugh Sanderson

DATE:16 November 2018

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)(d)(ii) of Schedule 2 to the Regulations

Statement made on 16 November 2018 at 10:19am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – no substantive visa at the time of application – compelling reasons for not applying Schedule 3 criteria – Australian citizen child from the relationship – young children remaining in Thailand with extended family – two years unlawful stay – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211; Schedule 3 criteria 3001; r 1.15

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 13 April 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 12 December 2016 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate found that the applicant did not hold a substantive visa at the time of the application and did not satisfy criterion 3001 of the Schedule 3 criteria. Further, the delegate was not satisfied that there were compelling reasons for not applying those criteria.

   Background

4. The applicant is a citizen of Thailand and is currently 34 years old. She has had two previous relationships. She has three children to her first partner, Pancharin currently 16 years old, Watcharapong almost eight years old, and Thanaphat currently six years old. That relationship ended in April 2012. She then married Aphisit Phonsri on 18 March 2013 who she divorced on 10 May 2016.

5. The applicant was granted a Subclass 573 Student visa and first entered Australia on 21 May 2013. She has not departed Australia since then. Her husband at the time and her children have never entered Australia. The applicant’s children at the time she entered Australia were aged 11 years, two years and four months and six months old. On 15 October 2014 the applicant’s Student visa was cancelled as the applicant was not enrolled in any course of study. She has not held a student visas since that time. She remained in Australia as an unlawful non-citizen after her visa was cancelled.

6. The sponsor of the applicant is Gregory Watkins. He was born in Australia and is an Australian citizen. He is currently 61 years old. He has a child from a previous relationship, Rachelle, who is currently 35 years old.

7. The parties claim to have first met each other in a shop in Sydney on 6 September 2014. A relationship started after that time. On 2 October 2014 the applicant moved in to live in the home of the sponsor with the sponsor’s brother. The applicant fell pregnant to the sponsor and they then moved to Katherine in the Northern Territory on 24 March 2015. The applicant gave birth to the parties’ son, Ashton, on 9 August 2015. The parties were married on 30 July 2016.

8. It was noted that the applicant did not hold a substantive visa at the time of the application and did not meet criterion 3001of the Schedule 3 criteria. The applicant claimed that there were compelling reasons for not applying those criteria including the following:

   ·When the applicant arrived in Australia as a student, she had very limited English and had difficulty understanding the teachers and her classmates were unsupportive;

   ·The applicant’s had a troubled relationship with her former husband and had financial difficulties at home;

   ·It was for these reasons that she ceased attending her classes and only became aware of the cancellation of her Student visa after it had been cancelled, because the documents had been sent by the Department to Thailand;

   ·As she had fallen pregnant the applicant did not know what to do as she did not want to be separated from the sponsor;

   ·The parties have been together for over two years and now have a young child together;

   ·The sponsor is a retired teacher and is able to live off his superannuation and will suffer financial hardship if the applicant is required to file an offshore Partner visa application;

   ·The sponsor has suffered from gout over the past 10 years and relies upon the support of the applicant;

   ·The sponsor has an elderly mother who they visit about three times a year;

   ·The sponsor does not speak Thai and would have difficulty living with the applicant in Thailand.

9. The delegate who considered the application noted that the applicant did not hold a substantive visa at the time of the application and did not satisfy criterion 3001. When considering whether to apply the Schedule 3 criteria, the delegate noted the following issues:

   ·The applicant had remained in Australia for two years as an unlawful noncitizen and made no attempt to engage with the Department over that period although she was aware that she was not complying with the conditions of her Student visa and the student visa had been cancelled;

   ·The basis of why the applicant claimed she ceased any studies is not a legitimate reason for her to remain in Australia and the applicant was aware that she was not studying she was not complying with her Student visa and had no entitlement to remain in Australia;

   ·When the applicant commenced her relationship with the sponsor she was aware that she was not complying with her Student visa and would likely have to depart Australia;

   ·The sponsor is financially independent and able to support himself and, although he does not speak Thai, would be able to spend time with the applicant in Thailand if she were required to file an offshore Partner visa application;

   ·The fact that the parties have a child together does not provide an automatic right to waive the Schedule 3 criteria;

   ·The applicant has three children who reside in Thailand and have not been with the applicant since May 2013 and no evidence has been presented that they have suffered from her absence;

   ·As Ashton is not yet attending school, there would be no harm in him spending time with the applicant in Thailand;

   ·There are no credible future plans for the applicant to gain employment in Australia to pay for Ashton’s education; and

   ·There was no credible evidence that the sponsor’s mother or any other person is dependent upon the presence of the applicant or the sponsor in Australia.

10. Based on these considerations, the delegate was not satisfied there were compelling reasons for not applying the Schedule 3 criteria. The delegate found the applicant did not meet the criteria in cl.820.211(2)(d)(ii) and refused the application.

    Information to the Tribunal

11. The applicant provided further documents to the Tribunal indicating that the parties were living together in Katherine and had participated in various trips with each other. Photos were provided of the applicant with the sponsor and members of his family.

12. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s brother. The Tribunal also spoke to the sponsor’s daughter and another witness by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review by her registered migration agent.

13. The parties gave evidence as to various aspects of their relationship and also the activities of the applicant in Australia. The applicant said that she wanted to include her children who are living in Thailand in the application, but thought that she would wait until they are a bit older before she sponsored them. The sponsor said that he had no intention of agreeing to support any sponsorship of the applicant’s children in Thailand to come to Australia. Other aspects of their relationship were discussed including their plans for their future.

14. After the hearing, the applicant’s agent provided further submissions and documents including claims that child bullying is on the rise in Bangkok and various costs associated with school fees.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and, if she does not, if there are compelling reasons for not applying those criteria.

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

17. 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).

18. 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.

    Criterion 3001

19. 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). In the circumstances of the applicant, the relevant day is the last day she held a substantive visa.

20. The applicant’s Student visa was cancelled on 15 October 2015. She did not hold a substantive visa again after that date. This was more than a year prior to the current visa application being filed.

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

    Compelling reasons

22. 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.

23. 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.

24. The applicant’s immigration history is poor. Although being granted a visa on the basis that she wished to study in Australia, the applicant stated that she attended the course that she had been enrolled in for only three months. She did not contact the Department or engage with them when she ceased her study or at any time before filing the current application. The Tribunal does not accept the applicant’s claims that she did not engage with the Department because she did not know what to do or that she feared she would be placed in jail.

25. The Tribunal finds that the applicant never had the intention to study in Australia and the sole purpose of her coming to Australia was to be able to remain in Australia and to work.

26. The Tribunal has considered the submissions made by the applicant’s agent and the claims why there are compelling reasons for not applying the Schedule 3 criteria. Most of the claims made have no merit. Often the submissions made are inconsistent. An example is the claim that the applicant’s child has developed strong friendships with local children, including the sponsor’s grandchild and it would be “unfair to take all this away from him”. At the same time, the applicant’s agent argues that the sponsor’s daughter is not able to assist the sponsor in looking after his child if the applicant were to return to Thailand as she lives in Darwin, 3 ½ hours’ drive away from Katherine. On that basis, the applicant’s child would not have such strong relationship with the sponsor’s daughter’s child as it appears that the sponsor’s daughter cannot visit Katherine often or that any separation would cause the applicant’s child any distress. Other general claims such as bullying in Thai schools are irrelevant, particularly when no reference is made to bullying in Australian schools.

27. The only issue of any merit raised by the applicant which would provide a compelling reason for not applying the Schedule 3 criteria is the potential effect that requiring the applicant to return to Thailand to file an offshore Partner visa application would have on her child, Aston.

28. When the applicant came to Australia she left her three children from a former relationship in Thailand. They were, at that time, 11 years old, two years old and six months old. She has not seen her children since she arrived in Australia. The children were left in the care of their grandmother. The claim now is that she cannot leave Australia as she would be separated from her son and any separation would be detrimental to him. There is no convincing explanation as to why Aston would suffer if he were not with his mother for any short period of time while the applicant was willing to desert her children for an extended period of time and has still not seen them since arriving in Australia. Her husband has stated that he has no intention to support the applicant sponsoring her children to live in Australia. The Tribunal does not accept the submissions of the applicant’s agent that as cultural expectations are different in Thailand to Australia it is common and appropriate for the applicant to leave her three young children in Thailand, but not appropriate for her to leave Aston for any period of time or that Ashton would be somehow differently affected by the any separation from his mother than his half-siblings were.

29. The fact is that Aston is an Australian citizen. His primary carer has been the applicant. Although the sponsor does provide some assistance in the care of Aston and he has a good relationship with him, the Tribunal doubts the sponsor has the same parenting skills or insight that the applicant has and provides in the care of Aston.

30. If the applicant were required to return to Thailand to file an offshore Partner visa application it is unlikely that the sponsor would travel to Thailand to live with the applicant while that application is being processed. This would mean that whatever arrangements were put in place for Aston he would be separated from at least one of his parents. The Tribunal accepts that as an Australian citizen living in Australia Aston has access to better health and other facilities than he would have access to if he was living in Thailand with his mother while any offshore Partner visa application was being processed. Although it would be of benefit for Aston to come into direct contact with his half siblings in Thailand and experiencing the Thai culture of his mother, to have Aston living in Thailand for an extended period before he returns to Australia would not be in his benefit.

31. After considering all the circumstances of Aston and how his life and development would be affected if the applicant were required to file an offshore Partner visa application the Tribunal finds that he would be adversely affected to such an extent that this provides a compelling reason for not applying the Schedule 3 criteria. Although the effect on Aston is much the same as the effect on the children the applicant left in Thailand when she first entered Australia and remained without any intention to return to Thailand for an extended period, this does not mean that Aston should be treated in the same manner. As an Australian citizen he is entitled to have both his parents with him to receive appropriate care, which the sponsor is unlikely to be able to provide to him without the applicant present. Aston is entitled to be provided the best services and care available to him which can be more likely provided in Australia rather than Thailand.

32. For the reasons set out above, the Tribunal is satisfied that the effect on Aston on the applicant having to file an offshore Partner visa application provides a compelling reason for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

33. 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

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

    Hugh Sanderson
    Member