Klubnum (Migration)
[2017] AATA 248
•8 February 2017
Klubnum (Migration) [2017] AATA 248 (8 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Thawinkiat Klubnum
CASE NUMBER: 1607985
DIBP REFERENCE(S): bcc2016/1332813
MEMBER:Adrienne Millbank
DATE:8 February 2017
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 08 February 2017 at 5:16pm
CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – No substantive visa – No factors beyond applicant’s control – No compelling reasons
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, Schedule 3, cl 820.211, Criterion 3001, Criterion 3004
CASES
MZYPZ v MIAC[2012] FCA 478
Babicci v MIMIA(2005) 141 FCR 285
Waensila v MIBP[2016] FCAFC 32
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision of a delegate of the Minister for Immigration on 30 May 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 March 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). 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because she failed to meet Schedule 3 criterion 3004. The delegate was not satisfied that there was a compelling reason to waive the criterion.
The applicant appeared before the Tribunal on 19 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s mother, who attended as witness.
The applicant was not represented by an agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born in 1994 in Thailand. She first arrived in Australia on 24 June 2012 on a student (subclass 573) visa. She departed Australia 7 June–8 July 2013; 21 June–22 July 2014; and 29 June–20 July 2015. At hearing she said that these times coincided with semester breaks, when she went home to visit family in Thailand.
On 15 March 2016 her student visa expired.
On 31 March 2016 she lodged an application for a Combined Partner (820/801) visa.
The applicant was unlawfully in Australia for 22 days, from the expiry of her student visa until issued a bridging visa (on 7 April 2016) in association with her partner visa application.
At time of review she was on a Bridging (subclass 030) visa C.
The sponsor was born in Buderim, Queensland, in 1993.
The parties claim that they first became acquainted in March 2015 when the sponsor was a customer in the Thai restaurant in Mooloolaba where the applicant worked. They hooked up together after the applicant returned from a semester break in Thailand, via a dating site on the internet. After communicating via the website for a month they arranged to meet. They married (at the Kawana Surf Club, Qld), on 18 March 2016.
The basis of the applicant’s claim is that her period of overstay was inadvertent and unintended and beyond her control. She said that because she was a scholarship recipient everything to do with handling her visa and travel arrangements had been taken care of by an agency that was funded by the Thai government. She claims further that she and her Australian citizen partner are in a spousal relationship and they would suffer financially and emotionally and in their study and career plans if she had to leave Australia to lodge her Partner visa application offshore.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant ceased to be the holder of a substantive visa because of circumstances beyond her control, and if she did not, whether there is a compelling reason to waive Schedule 3 criteria.
SCHEDULE 3 CRITERIA (cl.820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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).
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
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.
The applicant’s Student visa (subclass 573) ceased on 15 March 2016. She applied for a Combined Partner (820/801) visa on 31 March 2016.
As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.
Criterion 3003
Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.
Criterion 3004
Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.
As noted above, the applicant’s last substantive visa ceased on 15 March 2016, and she applied for a Partner visa on 31 March 2016. She was unlawfully in Australia for 22 days, from the expiry of her student visa until issued a bridging visa in association with her partner visa application. Criterion 3004 therefore applies.
As noted above, the applicant claims that her period of overstay was beyond her control because it was inadvertent and unintended. She said at hearing that because she was a scholarship recipient, and was still in high school when she won the scholarship, everything to do with handling her visa and travel and living arrangements in Australia had been taken care of for her. She said that this was done through an agency, which (she presumed) was funded by the Thai government. She said she was quite young, in Thai culture, ‘seventeen or eighteen’ and still at high school when ‘they’ advised her that she had won the scholarship. She said that they phoned her father and told him to bring her into the department to sign the paperwork. She acknowledged that there was some paperwork involved, and that she remembered signing some forms, for an English language course and for her university course and for a visa but she wasn’t sure whether she had been given or had retained any of these forms.
The applicant also said that she was paid a quarterly living allowance of $4000, but didn’t know whether or what conditions applied to her scholarship. She didn’t know which government department administered it or whether (as suggested by her mother-in-law who was a witness at the hearing) it was funded via an Australian aid program. She said she only knew that everything was handled for her through an agency called Global Study Consultants. She said her parents didn’t know anything about the conditions of her scholarship either. She said she was told at the outset that if she dropped out or failed a course, she would have to pay ‘double’ back, but she believed that if she graduated, that would be the end of the arrangement. She said the only thing she knew for sure about her scholarship was that it required her to enrol in sports-related courses.
At time of application the applicant provided a statutory declaration, signed 31 March 2016, in which she swears:
The reason that make me not apply for new visa before the expired date: Firstly, the student visa that already expired I didn’t apply it my myself, I did paid for the visa agency in Thailand to load the application form for me. So when the visa approved they did give me a CoE Certificate, The Letter of offer from University and Response to Offer but didn’t gave me a paper work that had the expired date of the visa for me. And This is my first time to go overseas so I might misunderstood and less careful to checked the document correctly so I assumed that the end date of the CoE certificate is the expire date for my student visa which is end at 15/09/2016. Also, I got an email from my insurance about one month ago said that my insurance will expire in September, it is the same month as CoE certificate so it made me so confident that my visa will be expire I September 2016.
At hearing the applicant argued that because she had been accepted into a university degree course and had been provided with a Confirmation of Enrolment (CoE) form which included a course end-date in August 2016, she assumed that she had been granted a student visa which would expire at this time. She said she didn’t realise that her student visa had expired until she was informed at the time she lodged her Partner visa application.
At hearing the applicant undertook to obtain and provide to the Tribunal information about the scholarship that she was awarded as a high school student, specifically evidence that might support her claim that she had no control over her course enrolment and visa application and renewal processes. After hearing she provided: copies of statements of her health insurance with expiry dates of 30 September 2016 and 31 March 2019; a written statement from the sponsor’s parents stating their belief that the visa overstay was the result of a lack of communication and misunderstanding between the applicant and her scholarship provider (and repeating the sponsor’s mother’s argument provided at hearing that forcing the applicant to apply for a Partner visa offshore would disrupt the young couple’s plans); and a letter ‘To whom it may concern’ from the President of the Institute of Physical Education, Ministry of Tourism and Sports, Thailand, dated 25 January 2017 confirming that ‘all of (the applicant’s) visa documents are kept by the IPE, and there has been a misunderstanding about visa information between the IPE and her’.
Also provided after hearing was a copy of a letter to the applicant from the Australian Embassy’s Visa and Immigration Office in Thailand, dated 20 June 2012, which states clearly (with the date in bold type): ‘Your visa is valid until 15/03/2016. It also states: ‘You may only stay in Australia for the period of your visa. Any further stay in Australia will only be permitted if you are granted another visa. …Your visa has been granted subject to a number of conditions. …It is very important that you abide by your visa conditions. If you fail to abide by any of your visa conditions, your visa may be cancelled and you may be required to leave Australia’.
The applicant was young when she first came to Australia in 2012. The Tribunal accepts that around the time she first entered Australia as an eighteen year-old, she might not have registered to the extent that she should have that she was herself was responsible for maintaining awareness of and complying with her visa conditions. However, by March 2016, when she lodged her Partner visa application, the applicant had travelled back to Thailand a number of times, and had (she acknowledged in hearing) discussed visa issues and options with fellow students who like her had become dissatisfied with their degree subjects and/or wanted to remain in Australia.
The Tribunal accepts that the IPE in Thailand assisted with the applicant’s visa application when she was a high school student. The Tribunal accepts that the applicant could have assumed that she had been granted a visa that would carry her through the entirety of the period indicated on her CoE. At hearing the applicant said that when she received her first CoE in 2012 she couldn’t understand English, and so didn’t register the advice on it (at paragraph 32 below). She acknowledged that she could read this advice on subsequent CoEs, but said that she only looked at the course start and end dates. The Tribunal does not accept that being a scholarship holder relieved the applicant of responsibility for complying with her visa in 2016.
The Department makes it clear in its publications and on-line information, including that directed to student visa applicants and holders, that it is the responsibility of the individual visa-holder to be aware of their visa’s expiry date and conditions. The Tribunal notes that at the top of the applicant’s Overseas Student Confirmation of Enrolment form, issued to the applicant by the Department of Education, Employment and Workplace Relations, the warning is printed:
A. INFORMATION FOR OVERSEAS STUDENTS.
THIS IS NOT A VISA AND DOES NOT ACT AS AN EXTENSION OF YOUR VISA.
You may check your visa status through Visa Entitlement Online (VEVO) at: >
The Tribunal accepts that the applicant’s visa stay was unintended and inadvertent, but is unable to be satisfied from the evidence and explanation provided that she is not the holder of a substantive visa because of factors beyond her control.
For the above reasons, the applicant does not satisfy criterion 3004.
Compelling reasons
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.
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.
The Delegate noted that the Department had no issues about the genuineness of the parties’ relationship. At hearing however the parties talked of how the applicant’s visa issues might have brought their marriage plans forward. The applicant wrote, in a ‘statement of relationship’ provided at time of application ‘…sometime before New Year I look up and checked my visa status again and it remind me that my visa is expired in August 2016, it made me so upset cause I do not want to leave him’. At hearing the parties said that by early 2016 the applicant had decided she wanted to stay in Australia, and that they had worked out that the quickest route to permanent residence was a Partner visa.
At hearing the applicant said her plan was, once she has a Partner visa, to complete her studies (she has two more years, to end 2018) and gain her degree. Once she has a degree and permanent residence, the parties both plan to join the Air Force in order to gain technical qualifications.
The Tribunal does not accept the fact that the parties claim to be in a spousal relationship to be a compelling reason not to apply Schedule 3 criteria. The Tribunal has considered the arguments and statements from the sponsor’s parents provided at and after the hearing describing how the young couple’s plans would be disrupted if the applicant was required to return to Thailand to lodge her Partner visa application. It does not consider the disruption to the parties’ plans that a requirement to go offshore would impose to be different in degree from the sort of disruption borne by other couples in similar situations.
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).
The applicant does not meet alternative criteria in cl.820.211(3) – (9) (people entering Australia to marry and who have subsequently married, and death, family violence, child exceptions) .
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Adrienne Millbank
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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