Naidu (Migration)

[2023] AATA 1830

Naidu (Migration) [2023] AATA 1830 (15 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kannen Naidu

REPRESENTATIVE:  Ms Sophie Manera

CASE NUMBER:  2205811

HOME AFFAIRS REFERENCE(S):          BCC2017/2133312

MEMBER:P. Maishman

DATE:15 June 2023

PLACE OF DECISION:  Perth

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) of Schedule 2 to the Regulations.

Statement made on 15 June 2023 at 3:00pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit and Family Court remittal – compelling reasons to waive Schedule 3 criteria – child born of the relationship – long-standing relationship – financial hardship – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 3, Condition 3001

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 Immigration and Border Protection 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 16 June 2017 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 the applicant satisfied the Schedule 3 criteria and concluded there were no compelling reasons to waive the Schedule 3 requirement.

4. The application was affirmed by the Tribunal (differently constituted) in a decision dated 11 December 2020. By order of the Federal Circuit and Family Court of Australia dated 9 March 2022 the decision of the previous Tribunal was found to be affected by jurisdictional error on the basis that the Tribunal failed to consider the length of the relationship between the applicant and the sponsor in its consideration of whether there were compelling reasons for not applying the Schedule 3 criteria.

5. The Tribunal has considered information available to the Department, the information in the Department’s decision record dated 4 December 2017 and the information available to the previous Tribunal. The Tribunal has considered the information available to it including extensive submissions provided on 3 May 2022 relevant to the issue to be determined.

6. The Tribunal has decided it can make a decision favourable to the applicant without proceeding to a hearing pursuant to s.360(2)(a) of the Act.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant gave the Tribunal a copy of the delegate’s decision record. The delegate made no formal assessment of the nature of the applicant and sponsors relationship to determine if the parties were in a spouse or de facto relationship has defined: ss 5F and 5CB. Accordingly, the Tribunal has refrained from formally considering that issue.

10. The issue before the Tribunal is whether the applicant meets the Schedule 3 criteria, or if there are compelling reasons for not applying those criteria.

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

11. 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).

12. 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

13. 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.

14. The Tribunal has considered the information contained in the Department’s decision record dated 4 December 2017, a copy of which was provided by the applicant to the Tribunal, and the submissions provided to the Tribunal by the applicant’s representative.

15. The Tribunal is satisfied based on the information before it that the applicant last held a substantive visa, a Temporary Work Skilled (Subclass 457) visa, which was cancelled on 10 May 2017. For the purposes of assessing the Schedule 3 requirements, the Tribunal is satisfied that 10 May 2017 is the relevant day.

16. The application for the partner visa was made on 16 June 2017, a period of over 28 days after the relevant day. Therefore, the Tribunal is satisfied that the application for the visa was not made within 28 days of the relevant day.

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

    Compelling reasons

18. 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.

19. 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.

20. The Tribunal had regard to the applicant’s submissions dated 26 October 2020 and the statements of the parties dated 29 and 30 October 2020. The Tribunal acknowledges the parties are now the parents of a child born in June 2021 as evidenced by the birth certificate received in May 2022.

21. In summary the parties submit they lived together for 14 months and were saving to make application for the partner visa. The applicant’s Subclass 457 visa was cancelled and he was no longer employed, and the sponsors ex-partner ceased contributing for half of the mortgage. The applicant could not go offshore to make the visa application because the sponsor would be required to cease work to look after her two children, which would mean the family would have no financial capacity to meet day-to-day living expenses. The financial hardship the parties endured restricted their ability to pay for the partner visa application.

22. At the previous Tribunal hearing the parties consistently expressed their concern at the financial and emotional impact if the applicant was required to leave Australia to make his visa application. The parties were concerned the sponsor may not be able to afford her mortgage repayments, the consequences of which would be a forced sale leaving the family homeless. The applicant expressed that he considers himself a father figure to the sponsors children and the sponsor confirmed this view.

23. The Tribunal has considered all the information before it and is satisfied that the applicant and sponsor have a long-standing relationship. They have one Australian born child, and the applicant plays a significant parental role in the lives of the sponsors other children. The Tribunal finds in the circumstances of this review, these factors amount to compelling reasons for not applying the Schedule 3 criteria.

24. 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).

25. 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

26. 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) of Schedule 2 to the Regulations.

    P. Maishman
    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.