Le (Migration)

[2022] AATA 1582

Le (Migration) [2022] AATA 1582 (25 February 2022)

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – DNA evidence confirms the claimed parentage of the applicant’s child from his previous relationship – longevity of the applicant and sponsor’s married relationship is a compelling circumstance – compelling reasons exist – Schedule 3 requirements waived – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211

WRITTEN STATEMENT OF DECISION

1. The Tribunal is satisfied the applicant Mr Cao Linh Le born 31 January 1985 (case number 1721795 – departmental reference BCC2017/1642788) satisfies cl.820.211(2)(d)(ii). The applicant’s sponsor (and wife) for the visas is Australian citizen Ms Dinh Uyen Phuong Phan born 28 November 1985.

2. The applicant lodged applications for subclass 820/801 visas on 8 May 2017 the basis of his married relationship with Ms Phan.

3. A delegate for the Minister refused to grant the applicant the visas on 31 August 2017 the basis the applicant did not satisfy the Schedule 3 criteria or the ‘waiver’ available under law.  On 14 September 2017 the applicant appealed the visa refusals to this Tribunal.

4. The matter was initially constituted to Member Rosa Gagliardi on 12 December 2019 for her review. The matter was then subsequently de-constituted and re-constituted (the same day) to Member Rachel Westaway on 26 February 2020. No reasons were cited for the de-constitutions by the Members, the Registry, or MRD Division Head Jan Redfern. Two hearings (one by each Member) had been set down, then cancelled.

5. The matter was subsequently (and lastly) constituted to this Member on 20 January 2021. A hearing conducted by the Tribunal on 21 June 2021 at which the applicant, his wife (the sponsor) and the applicant’s migration agent appeared before the Tribunal. The Tribunal was also assisted by an interpreter for the purposes of conducting the hearing.

1. The applicant was granted until 22 September 2021 to provide this Tribunal with specific evidence, including but not limited to DNA evidence in respect to the applicant’s claimed relationship with a child born (resident in Australia) of his previous relationship. It is important to note the evidence this Tribunal asked for was provided and will be shared with the Secretary of the Department as is required under the Act. The DNA evidence confirms the claimed parentage of the applicant’s child from his previous relationship. This is relevant because although they do not live together, any consideration of the applicant’s visa applications must take into consideration all of the circumstances of the applicant.

2. At the time the applicant applied for the subclass 820/801 visas the applicant was required under law to hold a ‘substantive visa’. He did not (this aspect is not in contention).

3. The question for the Tribunal therefore is whether there are ‘compelling’ circumstances such that this Tribunal is satisfied it should not apply the schedule 3 criteria (in other words, apply a Schedule 3 ‘waiver’.

4. The Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of a ‘waiver’ provision, reflects law-makers recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply onshore for a residence on partner grounds, but would otherwise be forced to leave Australia and apply offshore. Relevantly, Clause 10 – Schedule 2, Part 820 (Spouse), in the Explanatory Statement to the Statutory Rules states:

   “It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.”

10.  At the time of this decision, the applicant and his sponsor have been in a married relationship for almost six (6) years (married 23 March 2016).

11.  The duration of their relationship is consistent with a circumstance law-makers envisaged may give rise to the ‘waiver’ (though importantly including the emotional, physical and financial support the applicant may provide to his child in Australia), and well in excess of the ‘long-standing relationship which has been in existence for two years or longer’ referred to in the Explanatory Statement as detailed above.

12.  Given all the above, the Tribunal finds the longevity of the applicant and sponsor’s married relationship is a circumstance which is compelling in this matter.

13.  Near-on six years have passed since the applicant applied for the visas, and since that time, the married relationship continues, the family have significant plans for the future including financial obligations and undertakings. For the reasons stated above, it follows that the applicant satisfies clause 820.211(2)(d)(ii).

14.  Given the above, the appropriate course is to remit the applicant’s subclass 820/801 visa applications to the Minister for further consideration with the finding the applicant meets clause 820.211(2)(d)(ii).

Statement made in Melbourne on Friday 25 February 2022 at 11:08pm

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.