Marisa (Migration)

[2017] AATA 758

Marisa (Migration) [2017] AATA 758 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thiamsa-Nguan Marisa

CASE NUMBER:  1619166

DIBP REFERENCE(S):  BCC2016/2666540

MEMBER:Amanda Goodier

DATE:1 May 2017

PLACE OF DECISION:  Perth

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

Statement made on 01 May 2017 at 11:50am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – No substantive visa – No compelling reasons to waive criteria

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, Schedule 3, cl 820.211, criteria 3001, 3003, 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

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 27 October 2016 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 12 August 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) as the delegate was not satisfied there were compelling reasons for waiving the Schedule 3 criteria.

4. The applicant and sponsor appeared before the Tribunal on 5 April 2017 to give evidence and present arguments. 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

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

6. 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).

7. The Tribunal spent time explaining the Schedule 3 criteria to the applicant and sponsor. It indicated that they had provided evidence of the genuineness of their relationship but not addressed the Schedule 3 criteria. The Tribunal noted that the department had written to the applicant asking her to address the Schedule 3 criteria as well as provide information in support of the genuineness of their relationship. The Tribunal notes the hearing invitation to the applicant included a paragraph advising that one of the issues to be discussed would be whether she had complied with the timeframes in Schedule 3 and if not whether there were any compelling reasons to waive the requirement.

8. The Tribunal noted the applicant had held bridging visas on two occasions and been an unlawful non-citizen on two occasions and at the time this application was lodged, she was not the holder of any valid visa. 

9. 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

10. 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.

11. As discussed with the applicant at hearing, she arrived in Australia on 23 October 2013 as the holder of a visitor visa which ceased on 23 November 2013. She confirmed she applied for a student visa on 22 November 2013 which was refused on 16 April 2014.  The applicant then became an unlawful non-citizen from 14 May 2014 until granted a bridging visa on 29 January 2015 on departure grounds.  The applicant did not depart, becoming an unlawful non-citizen on 1 February 2015 until granted a bridging visa in association with this application on 16 August 2016.

12. As the relevant day is the day the applicant’s last substantive visa ceased on 23 November 2013 and the application for this visa was lodged on 12 August 2016, over 28 days have passed since the applicant last held a substantive visa. 

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

    Compelling reasons

14. 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.

15. 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.

16. As discussed with the applicant at hearing, the Tribunal has had regard to the Departmental policy contained in the PAM3 but is not bound such policy.  The Tribunal notes that the current PAM3 focuses on the reasons why the applicant did not hold a substantive visa.  Also as discussed with the applicant at hearing, a genuine relationship is not sufficient to establish compelling reasons.

17. The Tribunal has considered that as they claim to be in a long term relationship, this is a compelling reason for waiving the Schedule 3 requirement. The applicant submitted that they have known each other for around 3 years and lived together as husband and wife for around two years.

18. The Tribunal has considered whether they are in a long term relationship and if this is a compelling reason for waiving the Schedule 3 requirement. What is a reasonable period for the purpose of defining ‘long-standing’ will depend on the evidence, the circumstances of each case and the nature of the hardship/detriment that would be suffered if the Schedule 3 criteria were not waived. The period of time should not be the determinative factor but ought to draw its significance from a number of other factors relevant to the case. The Tribunal does not consider a spousal relationship of 2 years to be a reason that is in itself sufficiently powerful to lead the Tribunal to make a positive finding in favour of waiving the required criteria.

19. The Tribunal has considered the other factors relevant to the case as raised by the applicant and sponsor.

20. The applicant arrived in Australia on 23 October 2013 as the holder of a visitor visa which ceased on 23 November 2013. She applied for a student visa on 22 November 2013 which was refused on 16 April 2014.  The applicant then became an unlawful non-citizen from 14 May 2014 until granted a bridging visa on 29 January 2015 on departure grounds.  The applicant did not depart, becoming an unlawful non-citizen on 1 February 2015 until granted a bridging visa in association with this application on 16 August 2016.

21. The applicant told the Tribunal that she relied on a friend to apply for the student visa on her behalf.  She was going to study English.  She paid the money to her friend to do everything necessary to apply for the visa and she thought it would be granted as she saw no need to doubt her friend would not be able to assist her.  The Tribunal was told that she did not understand the emails from the department and was unaware that the visa was not granted.  She did not follow up with the department as her friend handled everything for her.  When asked about the bridging visa granted on departure grounds, the applicant stated that she had a disagreement with the sponsor and went to Perth with a friend.  She did not have much money so her friend said she could stay in this place for $50- per night.  She thought that was reasonable.  She really missed the sponsor so decided to return to him the next day but the police raided the property.  She did not know that it was a property where people were involved in wrong doings.  She spoke to someone through an interpreter and was granted a bridging visa.  She did not understand what it was or that she had to leave by a certain date.  The Tribunal indicated that it is usually for a bridging visa to be granted because the person has indicated they will be departing the country by a certain time.  She did not depart and became an unlawful non-citizen again.  When asked if she had spoken to immigration about her status, the applicant indicated that she did not want to leave the sponsor.  She also had no money to leave as her friend had borrowed her money and not paid it back.  

22. Both the applicant and the sponsor told the Tribunal that it was never the applicant’s intention to stay in Australia illegally.  It was a misunderstanding and she was misled by someone considered to be a friend. 

23. As discussed with the applicant and sponsor, the Tribunal considers that it was the applicant’s responsibility to ensure that she held a valid visa during her stay in Australia and finds that she had the ability and capacity to contact the department to discuss her status at all times.  The Tribunal acknowledges that the applicant’s knowledge of the English language is limited and she may not have understood the emails and communications from the department, but it not satisfied that this prevents her from contacting the department to discuss the contents and her immigration status.   

24. The Tribunal has considered the reasons put forward by the applicant but is not persuaded by them. The Tribunal does not accept the applicant’s claim to have been unaware her visa had ceased and she was unlawful as a compelling reason for waiving the schedule 3 criteria. The Tribunal does not find the reasons put forward for the applicant not being the holder of a substantive visa at the time the application was lodged as well as her reasons for being an unlawful non-citizen on two occasions compelling reasons for waiving the Schedule 3 criteria.

25. The Tribunal was told that the applicant has no family, friends, accommodation or job to return to in Thailand.  Her parents are deceased and the family home sold.  She spent about 10 years working as a chef in Macau before returning to Thailand for a few months prior to her arriving in Australia.  She would find it difficult to survive financially.  She does not know where to go.  All her family are in Australia, this is all the family she has and she does not want to be separated from the sponsor.    The applicant has lived in Australia for over three years, likes the Busselton area.  They have known each other for a long time and have lived together for over two years.  The sponsor indicated that he would continue to support the applicant financially if she was required to go off-shore.  The Tribunal was told that they would apply again and maintain the relationship despite any difficulties if this visa was not granted.  The Tribunal was told that it would be hard financially and emotionally if the applicant had to go off-shore. 

26. The Tribunal acknowledges that the sponsor would prefer to have his wife living with him but is not satisfied this is a compelling reason for waiving the Schedule 3 criteria. The Tribunal acknowledges that the applicant and sponsor would both prefer to remain living together in Australia but finds that this is not a compelling reason for waiving the Schedule 3 criteria.

27. The Tribunal accepts that if the applicant returns to Thailand she will have to re-establish herself there and that it may be difficult. The Tribunal acknowledges it may be difficult at first for the applicant to find employment if she returns to Thailand but is not satisfied that the applicant will be unable to find some type of employment. She has resided in Macau for about 10 years and Australia for some time, speaks some Mandarin and English, has adapted to new and different cultures and learned skills in adapting such as finding employment and accommodation. However, the Tribunal notes that the sponsor has indicated he will continue to support his wife financially and emotionally if she is required to go off-shore. The Tribunal acknowledges that the applicant will face re-establishing herself in Thailand after an absence and that she may experience some difficulty but is not satisfied that this gives rise to compelling reasons for not applying the Schedule 3 criteria.

28. The Tribunal is not satisfied on the evidence that having to return to Thailand to lodge another application would severely disrupt any plans or commitments the applicant has and is not satisfied that these are compelling reasons for waiving the Schedule 3 criteria.

29. While the Tribunal acknowledges it will be will difficult financially if the applicant has to go overseas to lodge another application and that this will incur additional financial expenses, the Tribunal is not satisfied on the evidence that any financial difficulty will be extreme. The Tribunal is not satisfied on the evidence provided that the financially difficulty that may be experienced by the applicant and/or sponsor should the applicant be unable to remain in Australia is a compelling reason to not apply the Schedule 3 requirement.

30. The Tribunal is not satisfied that there is anything in the applicant and sponsor’s particular circumstances to set them apart from any other couple making an off-shore partner visa application. The Tribunal further considers the parties missing each other or being miserable or finding it emotionally hard at being separated is a situation common to all persons in a genuine spouse relationship while temporarily apart if one spouse travels overseas to apply for a new visa. Therefore while missing each other and finding it emotionally hard at being separated may amount to compassionate circumstances, it is not a compelling reason to waive the Schedule 3 criteria.

31. The Tribunal is not satisfied that making plans for the future sets the applicant and sponsor apart from any other couple in a spousal relationship. The Tribunal is not satisfied these are compelling reasons for waiving the Schedule 3 criteria.

32. Having considered the totality of the reasons provided, the Tribunal is not satisfied that these are “such that they evoke interest or attention in a powerfully irresistible way” or that the reasons provided are “so powerful that they lead the [Tribunal] to make a finding that the [provision] should be waived”. The Tribunal does not consider these reasons, whether considered singularly or cumulatively, to be compelling.

33. The Tribunal is not satisfied based on the evidence provided that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

34. The Tribunal has considered whether the applicant meets any of the alternative criteria in cl.820.211(3) – (9). No claims have been made by the applicant against these alternative criteria and the Tribunal is not satisfied that the applicant meets any of these criteria.

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

    DECISION

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

    Amanda Goodier
    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.