Mudbhary (Migration)

[2019] AATA 5441

Mudbhary (Migration) [2019] AATA 5441 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sailesh Kumar Mudbhary

CASE NUMBER:  1818567

HOME AFFAIRS REFERENCE(S):          CLF2013/250257

MEMBER:Meena Sripathy

DATE:21 November 2019

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.

Statement made on 21 November 2019 at 12:04pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Federal Circuit Court – compelling reasons – did not lodge within 28 days – Australian citizen child – evidence provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211

CASES

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).

2. The applicant applied for the visa on 9 October 2013 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 (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)(ii) because schedule 3 criteria 3001 was not met and the delegate was not satisfied there were compelling reasons to waive this criterion.  The applicant sought review of the decision to the Administrative Appeals Tribunal (AAT), and on 31 August 2017 the AAT (differently constituted) (the ‘first Tribunal’) affirmed the decision under review.

4. The applicant applied for judicial review of the AAT decision and on 8 June 2018 the Federal Circuit Court of Australia remitted the matter by consent, ordering the AAT to determine the matter according to law. The Minister conceded that the first Tribunal failed to have regard to an express claim made by the sponsor in a statement dated 15 October 2014 that if the applicant were to leave Australia she would be required to go back to live with her parents which she did not want to do. 

5. On 18 March 2019, the applicant advised that he has a newborn child of his relationship with the sponsor, born on 6 March 2019.  A copy of the birth certificate was provided.  The matter was constituted to the present Tribunal on 28 August 2019.

6. On 2 September 2019 the Tribunal invited the applicant to provide updated information and evidence in support of his relationship with the sponsor and any further information addressing the issue of compelling reasons for not applying the Schedule 3 criteria.

7. On 11 and 16 September 2019 the applicant provided further documents in support of the ongoing relationship with the sponsor including:  mobile phone bills showing communication between the applicant and sponsor; credit card statement of the sponsor; applicant and sponsor’s joint bank account; photographs of the applicant and sponsor; baptism certificate for the child of the relationship and photographs of the applicant, sponsor and child at the baptism.

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant is a 34 year old Nepalese national.  He declared no previous relationships in his application.  He indicated he has parents in Nepal and one brother, who was studying in Thailand. He is sponsored by Jessica Pinto Da Silva, who is a 27 year old Australian born citizen. She has parents and two brothers in Australia. She declared no previous relationships.  The parties stated that they met in September 2011 at a music festival in Sydney and committed to a shared life together in May 2013.  They married on 14 August 2013.  The application was lodged on 9 October 2013. 

11. The applicant arrived in Australia on 29 October 2005 on a student visa.  He was subsequently granted several student visas, the last f which was granted on 9 April 2008, valid to 15 March 2010.  He applied for a Subclass 573 student visa on 1 April 2010 which was refused on 1 April 2010 and affirmed by the Migration Review Tribunal on 28 February 2013.

12. With his application, the applicant submitted various documents in support of the relationship including banks statements, mobile phone records, a tenancy agreement, sponsor’s superannuation beneficiary nomination; two Form 888 Statutory Declarations and various receipts for joint activities.

13. In response to a request by the Department for submissions on the Schedule 3/compelling reasons issue, the application provided a letter dated 15 October 2014 from the sponsor where she explained that she suffers from chronic back pain and weakness and relies on the applicant for assistance with daily chores, and his assistance facilitates her to study and work.  She submitted that if he were to leave Australia she would be required to return to live with her parents which she does not wish to do.

14. Before the first Tribunal the applicant and sponsor gave oral evidence at a hearing on 1 August 2017. Relevant details of the evidence provided by the applicant and sponsor is included in the statement of decision and reasons of that decision, which is before this Tribunal (case reference 1614288).

15. Before the present Tribunal information and evidence has been provided of a child of the relationship, born in March 2019.  The applicant also submitted further evidence in support of the ongoing relationship with the sponsor, as detailed above.

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

16. 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).

17. 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

18. 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.

19. In the present case, the last substantive visa the applicant held was his student visa granted on 9 April 2008 which ceased on 15 March 2010. The ‘relevant day’ therefore is 15 March 2010.  He applied for the present visa on 9 October 2013.

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

    Compelling reasons

21. 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.

22. 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.

23. The original intention of the introduction of the waiver provision referred to in the Explanatory Statement to Statutory Rules 1996, No. 75 was to provide flexibility for the Minister in compelling circumstances and avoid hardship caused by requiring an applicant to leave Australia and apply again for the visa offshore. The Tribunal observes that an example of what may be considered ‘compelling’, being the existence of an Australian citizen child, was referred to in the Explanatory Statement. The Tribunal has also considered the purpose of Schedule 3 set out in current Departmental policy, to encourage non citizens to apply for a further visa before their visa ceases, discourage them from remaining beyond the period of their visa and prevent non-citizens from benefitting by remaining in Australia unlawfully.  

24. Having regard to the above policy considerations and all of the circumstances revealed in the material now before it, including the applicant’s migration and visa history, the significant length of the relationship between the applicant and sponsor (now ongoing for over 6 years),  birth of an Australian citizen child, and the sponsor’s circumstances relating to her health and reluctance to return to live with her parents were the applicant to be required to leave, the Tribunal is satisfied in this case that there are compelling reasons for not applying the Schedule 3 criteria. 

25. The Tribunal gives weight to the fact that the applicant has resided in Australia since 2005, and for the vast majority of this period he was the holder of a substantive visa or a bridging visa.  He was only not the holder of any visa on three occasions, two being relatively short and the longest being 6 months between April and October 2013. The Partner visa was lodged in October within a reasonable period of the parties’ marriage in August.  Additionally and significantly, Tribunal considers it would now cause an unnecessary hardship to the Australian citizen child and sponsor to separate the family by requiring the applicant to leave Australia and lodge offshore, in light of the history of the relationship and family circumstances. 

26. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

27. 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

28. 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.

    Meena Sripathy
    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.