Morgado Marcelino (Migration)

[2023] AATA 4617

Morgado Marcelino (Migration) [2023] AATA 4617 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alcino Morgado Marcelino

REPRESENTATIVE:  Mr William Levingston

CASE NUMBER:  1923436

HOME AFFAIRS REFERENCE(S):          BCC2016/2592136

MEMBER:Stephen Witts

DATE:14 December 2023

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 of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 14 December 2023 at 1:07pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – parties validly married – applicant did not have a substantive visa at the time of application – applicant failed to meet criterion 3001 – sponsor’s medical condition – sponsor relies on the applicant for ongoing support and assistance – there are compelling reasons for not applying the Schedule 3 criteria –– decision under review remitted   

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, Schedule 3

CASES

He v MIBP [2017] FCAFC 206

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 3 August 2016 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) because the delegate was not satisfied that the applicant met the criteria 3001 of Schedule 3 of the Regulations, and that there were no compelling reasons to waive those requirements.

4. The applicant appeared before the Tribunal on 14 December 2023 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the applicant’s wife Ms Maria Paquim.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant needs the requirements for the grant of the visa in accordance with cl 820.211 and whether the applicant met the criteria 3001 of Schedule 3 of the regulations.

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

10. 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).

11. 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.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. The Tribunal notes that the applicant has provided it with a copy of the relevant delegates decision record dated 19 August 2019 by the applicant.

14. The Tribunal turns to a review of this decision.

15. In this decision it was stated that the applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 3 August 2016 on the grounds of being in a partner relationship with an Australian citizen sponsor, Ms Maria Celeste Amaral Paquim.

16. According to the delegate it assessed the application under regulation 820.211 noting specifically that subclause 820.211(2)(d)(ii) states that the applicant must satisfy criteria 3001, 3003 and 3004 unless the Minister is satisfied there are compelling reasons for not applying those criteria.

17. According to the delegate in order to meet Schedule 3 Criterion 3001 the application must be validly made within 28 days after the relevant day. According to the delegate it assessed that departmental records demonstrated that the applicant’s last substantive visa ceased on 15 April 2013 and that therefore the applicant ceased to hold a substantive visa more than 28 days prior to lodging the application on 3 August 2016 and concluded that the applicant did not meet criterion 3001.

18. According to the delegate it contended that as the applicant failed to meet criterion 3001 it then made an assessment as to whether there were any compelling reasons to not apply that criterion stating that these provisions are not intended to facilitate persons who fail to comply with visa conditions, or deliberately manipulate their circumstances to give rise to compelling reasons or can leave Australia and apply for a Partner visa outside Australia.

19. According to the delegate it assessed whether there were any such compelling reasons noting that it considered, it contended, the reasons provided by the applicant including that the parties were in a genuine long-term relationship, that there would be emotional and financial hardship to the sponsor, and that the relationship will suffer or deteriorate if they are separated, and that the agent was also at fault.

20. According to the delegate it assessed these issues and made a decision that it was not satisfied that the circumstances justify a waiver of the Schedule 3 criteria.

21. The Tribunal now reviews evidence and material provided by the applicant prior to the hearing.

22. The Tribunal notes that material was provided on 2 November 2023 including bank account material for the applicant and his sponsor with the Commonwealth Bank in joint names showing transactions from 2018 until 2019, an email addressed to the parties regarding their NBN account for 2019, a ticket for a holiday on a cruise ship in 2018, a driver’s licence for the applicant, born on 11 February 1967, and of the applicant’s sponsor born on 25 May 2064, NRMA motor-vehicle insurance for the parties, passport material for the parties, air flight boarding passes from 2017, and various photos of the parties together on holidays at that time.

23. Also provided was a letter dated 28 February 2019 by Filipe and Humberto Dias, stating that they are the children of the sponsor and that they are aware that she is married to the applicant. They stated that they knew him and that he was introduced to them in March 2015 by their mother, and that they married on 15 November 2015. It was stated that they have been living together since June 2015 and their relationship is genuine.

24. Also included was a letter dated 26 February 2018 from an individual stating that he is the accountant for the applicant, and the applicant’s sponsor, and that they are known to him.

25. Also included was a letter dated 26 February 2019 from a church stating that it knows the applicant and his sponsor and that they were married.

26. The Tribunal further notes that also provided on 1 June 2023 was medical information including a letter from a psychologist dated 19 January 2023 stating that the applicant’s sponsor attended an assessment of her mental health on several occasions from 2019 for treatment of depression and anxiety, having a history of domestic violence perpetrated by her first husband. Also included was a letter dated 18 January 2023 from a doctor stating that the applicant’s sponsor has been a patient for 20 and that the doctor is aware that she has been married to the applicant for several years.

27. Also included was a home loan agreement in the parties’ names indicating a loan amount and its repayment terms over the next 30 years. Also included were details about a holiday in January 2023 taken by the parties and other like material about the trip, also included was a letter from the applicant’s superannuation trust naming his wife, the sponsor, as a beneficiary.

28. Also included was a submission from the applicant’s representative dated 8 June 2023 stating that as an indicator of Schedule 3 criteria there is a matter relating to the sponsor’s medical condition which has resulted in hospital admission and that the sponsor relies on the applicant for ongoing support and assistance.

29. Also included was a statement by the parties stating that they met in 2015 and that they were married on 15 November 2015, and they are in a genuine relationship, and a letter from the applicant’s sponsor stating that she has been suffering from medical and mental health issues and that her husband has supported her.

30. Also included were several form 888’s from various individuals attesting to the genuineness of the relationship, various utility accounts, joint bank account material up to 2023, all photos from various social occasions, another psychological report dated 19 June 2023 indicating again that the sponsor has suffered domestic violence from a previous relationship and that her husband’s, the applicant’s, uncertain residency status is concerning her.

    Criterion 3001

31. 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.

32. The Tribunal notes the above evidence reviewed with the parties and finds that the visa application was not made within 28 days of the relevant day having regard to the definitions of the term in criterion 3001(2).

33. At the hearing the Tribunal had a discussion with the applicant regarding this matter and it was acknowledged by the applicant that the application was not made within 28 days of the relevant day.

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

    Compelling reasons

35. 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.

36. 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.

37. At the hearing the Tribunal had a detailed discussion with the applicant regarding this application.

38. The applicant stated that he has been in Australia since 2012 and that he first came here as a student. He stated that he has three adult children back in his home country of Portugal, that he has not been back to the country since 2012, and that he works as a steel fixer.

39. The Tribunal reviewed the applicant’s immigration history with him as outlined by the delegate’s decision and the applicant stated that the material outlined in the delegate’s decision as to his visa history and the dates of his applications are correct and that therefore he did not meet the 28-day requirement.

40. In regard to compelling circumstances, he stated that he acknowledges he has been ‘somewhat negligent’ in some ways in the manner he has managed his relationship with the immigration authorities and that it was also the case that he was confused by the process with the Department, and that he genuinely thought for some time that he was here legally when in fact he wasn’t.

41. The Tribunal had a detailed discussion and review of evidence with the applicant regarding the care and attention and support he provides to his wife. The Tribunal is satisfied that he has been living with her for eight years and he provided evidence regarding the nature of the illnesses and health issues that she has been suffering including a brain related disease that necessitated that she had major surgery last year. Evidence to this effect has been provided.

42. The applicant’s wife, as a witness, also provided evidence stating that she has been living in Australia now for 33 years, and that she has two children and two grandchildren living here in Australia. She also provided evidence regarding the nature of her illnesses over the last few years and the help and assistance given by the applicant in caring for her.

43. The Tribunal has considered very carefully and accepts the evidence provided that the applicant provides significant care and support to his wife, an Australian citizen, suffering from various illnesses including a recent serious illness.

44. On that basis, noting its concern with the applicant’s immigration history, and not specifically making a decision in regard to the genuineness or otherwise of the spousal relationship of the couple, it is nevertheless the finding of the Tribunal that the applicant has demonstrated that there are compelling reasons in this case, specifically, that he has demonstrated the care and support he is providing to an Australian citizen, and that he has been undertaking such care and support for several years.

45. 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).

46. 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

47. 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 of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Stephen Witts
    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.