Manuweera Wickramagedera (Migration)

[2022] AATA 3307

Manuweera Wickramagedera (Migration) [2022] AATA 3307 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilshan Dananjaya Manuweera Wickramagedera

CASE NUMBER:  1921881

HOME AFFAIRS REFERENCE(S):          BCC2018/1167837

MEMBER:Helen Kroger

DATE:21 July 2022

PLACE OF DECISION:  Melbourne

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) visa:

·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 21 July 2022 at 5:25pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not have a substantive visa at the time of application – sponsor’s mental health – emotional and physical support provided by the applicant – significant hardship would be potentially faced by the sponsor – compelling reasons to waive the Schedule 3 criteria – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
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
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 (Cth) (the Act).

2. The applicant applied for the visa on 12 March 2018 on the basis of his relationship with his 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) of the Migration Regulations, namely that the application was not made within 28 days after the relevant day, the relevant day being the last day the applicant held a substantive visa.

4. The applicant appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nisansala Maddage, the sponsor of this application.

5. The applicant provided the Tribunal with a copy of the delegate’s Decision record for the purpose of this review.

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

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

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, Mr Wickramagedera, lodged an application for a UK Partner (Temporary) and BS Partner (Residence) visa on 12 March 2018 on the grounds of being in a de facto relationship with Ms Nisansal Sevvandi Maddage, an Australian permanent resident. The applicant first arrived in Australia on a student visa, subclass 572, on 30 May 2009. He was granted a Subclass 573 higher education sector student visa on the 17 December 2010. The applicant’s subclass 573 visa ceased on 15 March 2014 and he lodged an application for a subsequent student visa on 4 April 2014 that was granted on 12 May 2014. During this time he was granted a bridging visa. The student visa ceased on 30 August 2015 and the applicant remained unlawful until he was granted a bridging visa associated with this partner visa application on 12 March 2018, a period of 2 years and  7 months.

11. The Tribunal invited the applicant to comment on his migration history as set out in the delegate’s Decision record and as set out above.

12. The applicant told the Tribunal that he was on a student visa and that during his final semester, his mother was ill, and he returned to Sri Lanka in 2014 to visit her.  He submitted to the Tribunal at hearing that this period was around the beginning of 2015 or towards the end of 2014 when his mother became ill. Before this, the applicant told the Tribunal that his father had suffered an accident towards the end of December 2013 and that he returned home in January 2014. He told the Tribunal that when his mother was sick, that he was aware that he only had around two months left on his visa, that he consulted a migration agent, and that migration agent suggested that he should enrol in a new course. He indicated that the options open to him were not clear, that he met with a couple of different migration agents who were relatively expensive, and that they neither explained nor managed the process well.

13. The applicant does not dispute that he didn’t hold a substantive visa at the time of this application and that that the partner visa application was not made within the ‘relevant day’, namely within 28 days of holding a substantive visa, with his last substantive visa being the student visa that ceased on 30 August 2015.

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

    Compelling reasons

15. 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.

16. 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.

17. The Tribunal invited Mr Wickramagedera, the review applicant, to comment on any compelling reasons for the Tribunal’s consideration, that would apply to the Schedule 3 waiver. The applicant and sponsor submitted evidence to the Tribunal to support their claim of being in a de facto relationship. Whilst the Tribunal has considered this evidence, the issue before the Tribunal is whether compelling reasons exist that would apply to a Schedule 3 waiver. 

18. The applicant told the Tribunal that throughout the visa process, that the sponsor, his de facto partner, was not well and suffered depression along with panic attacks. He explained that during much of this time, that she was not stable, that she did not want to be on her own, and that she was not sufficiently well enough to travel with him should he be required to move off-shore. The applicant indicated that he was only able to secure adequate employment in Australia to support both of them. He discussed her mental health concerns, her reluctance to consult with a Psychiatrist in Australia, her consultation with a medical practitioner in Sri Lanka and her emotional and physical dependence on him. The parties submitted a copy of the medical report provided by the physician in Sri Lanka.  He told the Tribunal that the sponsor was in a much improved condition however it was a fragile health condition that was totally dependent on his presence and support.

19. The Tribunal sought further information during the hearing from the sponsor in relation to the above evidence. The sponsor told the Tribunal that she was dependent on the review applicant and described her mental health during the period when the applicant did not hold a visa and the effect this had on her well-being. She told the Tribunal that she visited a Doctor in Sri Lanka due to her mother’s insistence and that the Doctor had advised her against dramatic life changes. The sponsor indicated that she financially supports her mother and grandmother in Sri Lanka as her father is deceased.

20. The Tribunal invited the parties to comment on whether there were any further compelling reasons they were claiming for consideration and they both indicated that the mental health and well being of the sponsor was the primary reason.

21. Following the hearing, the parties have submitted further evidence to the Tribunal to support the claim that they are in a genuine and enduring relationship.

22. The Tribunal has carefully considered the evidence before it with particular regard to the claims in relation to compelling reasons that would apply to the Schedule 3 waiver. Namely, the mental health considerations and emotional and physical support provided by the applicant to the sponsor. The Tribunal considers the oral evidence given during the hearing to be compelling in so much as it indicates the potential deleterious effect on the sponsor, an Australian citizen, should Mr Wickramagedera be required to leave Australia, given her absolute dependency on him.

23. In considering the longevity of the claimed relationship that has enforced a significant degree of dependency, both emotional and physical, the Tribunal is satisfied that significant hardship would be potentially faced by the sponsor, should the applicant be required to leave the country and therefore finds that there are compelling reasons to waive the Schedule 3 criteria.

24. Accordingly, the applicants meet cl.820.211(2)(d)(ii).

25. Given the finding above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    Helen Kroger
    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.