Namsombun (Migration)

[2020] AATA 2611

Namsombun (Migration) [2020] AATA 2611 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Natthida Namsombun

CASE NUMBER:  1922134

HOME AFFAIRS REFERENCE(S):          BCC2018/2118957

MEMBER:P. Maishman

DATE:25 June 2020

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 25 June 2020 at 4:55pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – bridging visa pending review of refusal of further student visa – compelling reasons for not applying criterion – inadequate advice from previous migration agent – parties’ work and financial situation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d), 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 Home Affairs 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 15 May 2018 on the basis of her relationship with her 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 the applicant did not satisfy the Schedule 3 criteria and there were not compelling reasons for not applying the criteria.

4. The applicant appeared before the Tribunal on 24 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsor, Mr Justin Adlam. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicant was represented by her sponsor in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file containing the visa application and documents provided to the Department in respect of an application.

8. The Department’s decision record, provided to the Tribunal by the applicant, details that the applicant arrived in Australia on 28 November 2015 on a student visa. That visa was valid until 3 August 2016. The applicant applied for a further student visa on 2 August 2016 and that application was refused. The applicant applied to the Tribunal for a review of the refusal of the student visa and withdrew that application on 21 May 2018. The applicant lodged her partner visa application on 15 May 2018.

9. The applicant gave oral evidence that she engaged Rebecca Mason, a then registered migration agent, who filed her Tribunal application for review of the refusal to grant her student visa. The applicant continued her studies pending the Tribunal review of her student visa refusal. The applicant provided certificates for courses completed during 2017. The applicant says she sought advice from her agent about undertaking further courses pending the Tribunal outcome and was told she could apply for the partner visa. The applicant denies she was told of the Schedule 3 criteria. The applicant says she did not know the rules and was given incorrect advice by the migration agent. The applicant says they paid a lot of money to the migration agent and for the partner visa and could not afford to go offshore and pay for the visa again. The applicant says she has been in a de facto relationship with the sponsor since the beginning of 2017, and he has had to support her financially due to work restrictions on her bridging visa. The applicant agreed she last held a substantive visa on 3 August 2016 and applied for this partner visa on 15 May 2018.

10. The sponsor gave oral evidence that he assisted the applicant during her partner visa application. He did not know of the Schedule 3 criteria because the migration agent did not tell them. He said he and the applicant had been a couple for more than three years now. It would be emotionally very difficult for them both if the applicant had to go offshore to make the visa application. The sponsor said he had supported the applicant financially for the last three years while she was not allowed to work. The sponsor said his work had been patchy over the last several years and he had sometimes relied on income support. The only way they could afford for the applicant to go offshore to make a visa application is for him to withdraw some of his superannuation.

11. The Tribunal found the applicant and sponsor to be credible and honest witnesses and accepts their oral evidence on that basis. The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below.

12. The Tribunal notes the delegate has not assessed whether the applicant meets the criteria to be considered the spouse or de facto partner of the sponsor. Having regard to the President’s Direction – Conducting Migration and Refugee Reviews the Tribunal will restrict its review to the matters decided by the delegate.

13. The issue in the present case is whether there are compelling reasons to waive the requirement to meet the Schedule 3 criteria.

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

14. 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).

15. 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

16. 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.

17. The delegate’s decision record outlines the applicant’s visa history and says she last held a substantive student visa on 3 August 2016. She was granted bridging visas pending the outcome of her student visa application and was the holder of a bridging visa when she lodged an onshore application for a partner visa. The applicant agreed the visa history contained in the delegate’s decision record is correct.

18. The Tribunal finds that the applicant last held a substantive visa when her student visa ceased on 3 August 2016. This is the ‘relevant day’ as defined in criterion 3001(2)(c)(i).

19. The applicant’s partner visa application was made on 15 May 2018 and the Tribunal finds this is more than 28 days after the relevant day.

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 Tribunal considered the circumstances surrounding the applicant not being the holder of a substantive visa. The applicant told the Tribunal that her student visa was refused because her migration agent recorded a study plan not accepted by the Department as being genuine. She sought a review of the decision because she was a genuine student. Her migration agent suggested she apply for a partner visa and the agent withdrew her student visa review application. The agent did not tell her of the Schedule 3 limitations on making that application, nor suggest to her a partner visa application could be made from offshore.

24. The Tribunal asked the applicant if she had lodged the review for her student visa refusal in order to manipulate her circumstances to satisfy the partner visa criteria. The applicant denied there was any intention on her behalf to circumvent either the student visa or the partner visa rules. It is a coincidence that she fell in love with the sponsor.

25. The Tribunal considered the applicant’s lack of knowledge of the visa requirements and inadequate advice given by her migration agent.

26. The Tribunal notes media reports[1] confirm Rebecca Mason’s migration agent registration was cancelled by the Department in November 2018 and acknowledges the potential for the applicant to have received inadequate advice. The onus is however on a visa applicant to understand the conditions that attach to a visa for which they have applied. The Tribunal does not consider the applicant’s lack of knowledge of the visa requirement or the likely inadequate advice given to her by her agent to be a compelling reason, by itself, for not applying the Schedule 3 criteria.

    [1] >

    The Tribunal’s file contains a joint tenancy agreement, correspondence addressed to the applicant and the sponsor at the same address, relationship statements from the applicant and the sponsor and a bank account statement in joint names. The parties claim to have met in 2016 and commenced a de facto relationship at the beginning of 2017.

27. The Tribunal has restricted itself to deciding the issue before it and is not assessing the genuineness of the applicant’s and sponsor’s relationship to satisfy the visa criteria. However, for the purposes of considering whether the duration of the applicant and sponsor’s relationship is a compelling reason not to apply the Schedule 3 criteria only, the Tribunal is satisfied the applicant and sponsor have a long-term relationship.

28. The Tribunal considered if the financial circumstances of the applicant and sponsor are compelling reasons not to apply the Schedule 3 criteria.

29. The applicant has spent a considerable amount of money to date on her visa application. The applicant has not worked since applying for the partner visa because of a work restriction on her bridging visa. She has been fully supported financially by the sponsor. After the hearing, the sponsor provided his tax assessment notices for 2018 and 2019 which showed he has received a minimal income over the last few years. The applicant provided bank statements after the hearing showing he and the applicant have a significant net debt. The sponsor said if the applicant was required to go offshore to apply for the visa, his only source of funds to make a further visa application would be from making an early withdrawal from his superannuation.

30. The applicant and sponsor would have to pay a new visa application fee, additional rent and living expenses and the costs of travel, when travel can be undertaken again, to see one another. The parties would be left with no financial reserves.

31. The Tribunal finds that the circumstances above, when considered holistically including the circumstances in which the applicant ceased to be a substantive visa holder, are compelling reasons for not applying the Schedule 3 criteria. The parties’ relationship is enduring and long-term. The parties have no financial means for the applicant to travel offshore, pay another visa application fee, and maintain two households while an offshore application was considered. The sponsor would be required to access funds meant for his retirement which would destroy his financial future.

32. 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).

33. 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

34. 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.