MOKTAN (Migration)

[2020] AATA 5890

MOKTAN (Migration) [2020] AATA 5890 (11 November 2020)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Robin MOKTAN

CASE NUMBER:  1927439

DIBP REFERENCE(S):  BCC2015/141211

MEMBER:  Kira Raif

DATE OF DECISION:  11 November 2020

DATE CORRIGENDUM

SIGNED:  23 November 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The Presiding Member’s certification block should appear on the covering page of the decision record as follows:

Statement made on 11 November 2020 at 2:55 pm

Kira Raif Senior Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Robin MOKTAN

CASE NUMBER:  1927439

HOME AFFAIRS REFERENCE(S):          BCC2015/141211

MEMBER:  Kira Raif

DATE:  11 November 2020

PLACE OF DECISION:  Sydney

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

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – existence of an Australian citizen child from the applicant’s relationship with the sponsor – decision under review remitted

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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 12 January 2015 on the basis of his relationship with the sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate found that the applicant did not meet Item 3001 of Schedule 3 and found that there were no reasons for the waiver of that provision.

1. The applicant sought review of the delegate’s decision. The Tribunal (differently constituted) affirmed the decision under review in April 2016 and again in February 2019. The applicant sought judicial review and on both occasions, the Tribunal’s decisions were remitted to the Tribunal for reconsideration.

1. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Relevant law

1. 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).

1. 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.

1. 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).

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

1. The applicant’s immigration history is set out in the primary decision record. It indicates that the applicant entered Australia in November 2008 holding a Student visa, which ceased in July 2010. The applicant then became an unlawful non-citizen before he made the application for a Partner visa in 2015.

1. The Tribunal finds that the applicant last held a substantive visa when his Student visa ceased in July 2010. He was not the holder of a substantive visa at the time he made the application for the present Partner visa in January 2015. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).

1. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii).

1. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that she entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that 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.

1. The Tribunal has found that the applicant ceased to hold a substantive visa when his Student visa ceased in 2010. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the present Partner visa was made in 2015, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

1. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

Compelling reasons

1. 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.

1. 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.

1. The applicant referred to a number of circumstances in his primary application and in his evidence to the previous Tribunal. Additional evidence has been given to the present Tribunal. Significantly, the applicant provided to the Tribunal evidence of birth of his child in March 2020. The child’s birth certificates identify the applicant and the sponsor as his parents. The Tribunal finds that there is a child from the applicant’s relationship with the sponsor.

1. The Tribunal is of the view that the existence of an Australian citizen child from the applicant’s relationship with the sponsor constitutes a compelling reason for not applying the Schedule 3 criteria. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

1. The previous Tribunal decision indicates that there may have been some false or misleading information provided with respect to aspects of this application and a previous visa application. The Tribunal has not considered whether the applicant meets PIC 4020 but acknowledges that this may be a consideration for the delegate.

Conclusion

1. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

DECISION

1. 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

Kira  Raif Senior Member