Le (Migration) - [2025] ARTA 151

LE (MIGRATION) [2025] ARTA 151 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Tuyet Thanh Le
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2402889

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 12 February 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Cl.820.211(2)(d) of Schedule 2 to the Regulations.

Statement made on 12 February 2025 at 2:54pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – long-standing relationship between the applicant and the sponsor – reliance on each other for practical, emotional and physical support – compelling reasons for not applying the Schedule 3 criteria – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65,106
Migration Regulations 1994, Schedule 2, cl 820.211
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 November 2015 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 (Cth) (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) because the delegate was not satisfied the applicant met the Schedule 3 requirements, and was not satisfied there were compelling reasons for not applying the Schedule 3 criteria.
The applicant applied for review of the decision of the Department, and the Tribunal (differently constituted), in a decision dated 24 April 2017, affirmed the decision of the Department. The applicant appealed the decision of the Tribunal.
The Federal Circuit and Family Court of Australia (Division 2) in a judgement dated 21 November 2022, found there was no jurisdictional error in the decision of the Tribunal dated 24 April 2017.
The applicant appealed the decision of the Federal Circuit and Family Court of Australia. The Federal Court of Australia, in a judgement dated 7 December 2023, found there was jurisdictional error in the decision of the Tribunal dated 24 April 2017, in that the Tribunal had not complied with its obligations under s.360 of the Act and had considered information, namely international movement records, after the hearing, and had not advised the applicant of the issue which was relevant to the review and had not given the applicant a real chance to give evidence and present arguments in relation to this information.
The Tribunal invited the applicant to provide information about the current circumstances of her relationship with the sponsor and in relation to compelling reasons for waiving the Schedule 3 requirements. The applicant provided detailed and extensive submissions which have been considered by the Tribunal. The Tribunal notes that this information was not available to the Department at the time of the original decision dated 19 September 2016. The Tribunal notes that it has the benefit of evidence of the longevity of the relationship between the applicant and the sponsor, and the support they provide to each other and extended family members.
The parties to this review are the applicant, and the Minister who is a nonparticipating party to the proceeding. The Tribunal has considered all the information available to it, and is satisfied it can make a decision wholly in favour of the applicant, and can adequately determine the issues in the proceeding in the absence of the parties. The Tribunal is therefore satisfied that s.106(3) applies and the circumstances in this review are such that the Tribunal may make a decision without proceeding to hearing.
The applicant was represented in relation to the review.
The following are the written reasons that the Tribunal has concluded the decision under review is set aside and the matter be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
SCHEDULE 3 CRITERIA (cl 820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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 Tribunal is satisfied that the information contained in the Departments decision record dated 19 September 2016, and the previous Tribunal decision dated 24 April 2017, which has not been disputed by the applicant, is correct. The applicant provided a submission dated 14 April 2017 providing information that the applicant did not meet the Schedule 3 requirements, and requesting the Tribunal finds that compelling reasons exist.
The Tribunal is satisfied that the applicant arrived in Australia on 18 March 2015 as the holder of a visitor visa, and that visitor visa ceased on 18 June 2015. The Tribunal is satisfied that the applicant last held a substantive visa on 18 June 2015. The relevant day for the purposes of the assessment of Schedule 3001, in this review is 18 June 2015.
The applicant lodged the application for the subclass 820 Partner visa, which is the subject of this review, on 18 November 2015. The Tribunal is satisfied that the application for the visa was made more than 28 days after the relevant day.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
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, 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.
The Tribunal has considered the information provided by the applicant and is satisfied that the applicant and the sponsor continue to be in an ongoing relationship. The Tribunal is satisfied based on the marriage certificate, that the applicant and the sponsor were married on 25 September 2015. The Tribunal is satisfied that the applicant and the sponsor are still in a spousal relationship, 9 ½ years after their marriage. The Tribunal is satisfied that the applicant and the sponsor has spent some time apart, when the sponsor has travelled overseas. The Tribunal is satisfied that this does not affect the genuineness of the relationship or the longevity of the relationship between the applicant and the sponsor.
The Tribunal has considered the detailed statements of the applicant and the sponsor, and detailed statements from family members in including the sister of the applicant, long-term friend of the couple, long-term friend of the applicant, five detailed statements from nieces and nephews of the applicant. The Tribunal has considered the other information and evidence of the relationship provided which included rental agreements, correspondence, bills and other documents indicating the parties reside at the same premises, financial documents including superannuation nominations, the sponsor’s payslips and pension cards, medical reports, joint ambulance cover and other documents over a period of time, and statements of support and documents from the Vietnamese mutual social support network. The Tribunal has considered the extensive collection of photographs which included photos of the applicant with family members, including children, and of the applicant and sponsor at family functions.
The Tribunal has also considered the age of both the applicant and sponsor and the medical condition of the applicant. The Tribunal is satisfied the applicant and the sponsor rely on each other and support each other, and accepts that the sponsor has supported the applicant through several surgeries and other disabilities and complications incurred by the long-term effects of polio.
The Tribunal is satisfied that the applicant has no family members currently residing in Vietnam, and that the applicant has many family members residing in Australia. The Tribunal is satisfied that many of these family members rely on the applicant for support within their family and community circle. The Tribunal is satisfied that the applicant would experience significant hardship if she was required to depart Australia to lodge the application of the visa offshore based on her medical conditions and ongoing medical treatment. The Tribunal is satisfied that the applicant would experience significant hardship if she was required to depart Australia to lodge the application for the visa offshore from being separated from her 70-year-old spouse. The Tribunal accepts that the sponsor would find it physically and financially difficult to leave Australia due to his current employment and imminent retirement. The Tribunal is satisfied that the applicant’s spouse (the sponsor) would experience psychological and emotional hardship due to the separation from the applicant if the applicant was required to depart Australia to lodge the application for the visa offshore. The Tribunal is satisfied that the applicant’s extended family would experience practical, and emotional hardship due to the loss of support from the applicant, if she was required to depart Australia to lodge the application for the visa offshore. The Tribunal notes that the hardship experienced by the applicant’s extended family includes the young children of her nieces and nephews.
The Tribunal finds that the long-standing relationship between the applicant and the sponsor, their reliance on each other for practical, emotional and physical support, the age of the applicant and sponsor, the dependence on the applicant by her extended family members, and the hardship the applicant and the applicant’s spouse and other family members will experience if she was required to depart Australia, cumulatively amount to compelling reasons for waiving the Schedule 3 requirements.
For all these reasons, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets the requirements of cl 820.211(2)(d)(ii).
The Tribunal is satisfied the applicant meets the requirements of cl.820.211(2)(d).
Given the findings above, the appropriate course is to set aside the decision under review and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal sets aside the decision under review and remits the application for a Partner (Temporary) (Class UK) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·Cl.820.211(2)(d) of Schedule 2 to the Regulations
Dates of hearing(s):  N/A
Representative for the Applicant:           Mr Li Dennis Shen
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.