Langenbach (Migration)

[2020] AATA 6169

Langenbach (Migration) [2020] AATA 6169 (5 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ratri Langenbach

CASE NUMBER:  1904641

HOME AFFAIRS REFERENCE(S):          BCC2018/480175

MEMBER:Joseph Francis

DATE:5 October 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 05 October 2020 at 2:44pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – claimed failings of migration agent – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

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 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 (the Act).

2. The applicant applied for the visa on 29 January 2018 on the basis of her relationship with her 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 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because the visa applicant was not the holder of a substantive visa at the time of the visa application and did not meet criterion 3001.

4. The applicant appeared before the Tribunal on 22 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there are compelling reasons to waiver the requirements of criterion 3001.

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

7. 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).

8. 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

9. 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.

10. The applicant fist arrived in Australia on -3 May 2007 as the holder of a Tourist (Subclass 676) visa, and up until March 2008 made a total of three visits as a tourist.

11. On 07 July 2009, the applicant returned to Australia as the holder of a Student (Subclass 570) visa.  Until 24 May 2017, the applicant remained in Australia as the holder of six further Student (Subclass 572) visa.

12. On 5 May 2017, the applicant applied for a further Student (Subclass 572) visa, which was refused on 5 June 2017.

13. On 8 June 2017 the applicant lodged an appeal with the Tribunal for the refusal of this subclass 572 visa, and as such was allowed to remain in Australia on a bridging visa.

14. On 29 January 2018, the applicant lodged a Partner (Temporary) (Class UK) (Subclass 820) visa which is the subject now of this decision.

15. For the purpose of Criterion 3001, the subclass 820 Partner Visa application must have been made within 28 days after the relevant day, being the last day the applicant held a substantive visa., being 24 May 2017.

    Compelling reasons

16. 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.

17. 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.

18. The delegate was required to determine if compelling reasons exist for not applying the Schedule 3 criteria.  The Migration Regulations 1994 do not prescribe the circumstances that need to be considered when assessing whether or not compelling reasons exist to not apply Schedule 3 criteria 3001, 3003 and 3004and circumstances are therefore to be considered on a case by case basis.

19. The provisions are not intended to facilitate persons who:

    ·     fail to comply with their visa conditions; or

    ·     deliberately manipulate their circumstances to give rise to compelling reasons; or

    ·     can leave Australia and apply for a partner visa outside Australia.

20. On 16 January 2019, the delegate provided the opportunity for the applicant to submit information regarding any compelling factors for consideration in applying the schedule 3 criteria.  The applicant was provided 28 days to reply.

21. Neither the applicant nor the migration agent replied to the invitation to provide reasons for consideration.

22. The delegate refused to grant the visa on 15 February 2019.

23. On 28 February 2019 the visa applicant lodged an application for review of the decision with the Tribunal.

24. On 4 May 2020, the Tribunal wrote to the visa applicant inviting comment, including any compelling reasons as to why Schedule 3 criteria should not be applied.

25. On 6 May, the applicant replied to the Tribunal by email, stating that;

    ·      they were unaware of the 28-day time frame required by the criteria,

    ·     that their migration agent failed to reply to the department on their behalf,

    ·     that their migration agent gave them incorrect advice; and,

    ·     that due to their age and nature of their relationship it would be difficult if the visa were not to be granted.

26. The Tribunal held a hearing on the matter on 22 July 2020, which both the visa applicant and sponsor attended. 

27. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

28. The parties were not represented during the hearing.

29. The parties provided oral evidence that they had been failed by their former migration agent in the handling of the application, including that they were incorrectly advised that they were required to have been in a de facto relationship for two years (as opposed to one year) prior to the visa being lodged; and that the migration agent had failed to reply to the request for reasons from the delegate prior to the visa being refused.

30. The Tribunal asked what action they had taken against the agent, including fees paid or refunded, and evidence of communication to or from the agent confirming this.

31. The applicant told the Tribunal that they could provide evidence of payments, messages and emails to support the claim that they had been failed by their migration agent.

32. The Tribunal also asked for submissions of compelling reasons as to why Schedule 3 criteria should not be applied.

33. The tribunal provided until 5 August 2020 for further information, including evidence with regard to the claimed failings of the applicant’s former migration agent, to be provided.

34. On 3 August 2020 the applicant provided a statement by both the applicant and the sponsor that addressed the genuine nature of the relationship; however, this was not a question being considered by the Tribunal.

35. A Statutory Declaration, signed by the applicant, witnessed and dated 3 August 2020, was also provided.  This again was confined only to the issues relating to the genuine nature of the relationship.  

36. The Tribunal notes that none of the evidence alluded in the hearing, particularly in relation to payments and messages with the applicant’s former migration agent, was provided to the Tribunal as undertaken by the applicant.

37. As such, I am not satisfied that compelling reasons exist not to apply criterion 3001.

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

39. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Joseph Francis
    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.