Newton (Migration)

[2019] AATA 3970

Newton (Migration) [2019] AATA 3970 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bernadette Louise Newton

CASE NUMBER:  1721042

HOME AFFAIRS REFERENCE(S):           BCC2017/1099441

MEMBER:Ann Duffield

DATE:27 August 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 27 August 2019 at 1:20pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – credible witnesses – not holder of substantive visa at time of application – Schedule 3 criteria – no factors beyond applicant’s control – financial and administrative difficulties – compelling reasons for waiver – cost of travelling to the United Kingdom and lodging another application – sponsor’s mother’s health condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3004

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).

2. The applicant applied for the visa on 21 March 2017 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 or cl.820.221. The delegate was not satisfied that there was sufficient evidence to support a finding that the parties were in a genuine, continuing and exclusive relationship. Furthermore, the applicant was not the holder of a substantive visa when she lodged her application and the delegate found that there were no compelling reasons or factors beyond her control to grant the visa. She therefore failed the requirements of Schedule 3 criterion 3004.

4. The applicant appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

5. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

7. The applicant is a citizen of the United Kingdom born on 15 July 1997. She first arrived in Australia on a subclass 417 visa on 11 March 2016. She subsequently departed and returned again on 28 September 2016. She became unlawful from 12 March 2017 when her visa ceased until she lodged an application for the partner visa subject to this review on 21 March 2017. She has been on a bridging visa in relation to that application since that time.

8. The sponsor is an Australian citizen born on 6 September 1988.

9. The parties claim to have first met in June 2015 in the United Kingdom. They claim to have commenced their de facto relationship in November 2015. They became engaged in Australia in 2017.

10. Prior to the Tribunal hearing the parties provided documentation to support their application including the following:

    a.Bank accounts from June 2016 to March 2017;

    b.Tenancy agreement from 25 September 2017 to 25 March 2018;

    c.Tenancy agreement from 26 March 2019 to 25 September 2019;

    d.Statutory declaration dated 6 September 2017 from mother of the applicant attesting to the genuine nature of the parties relationship;

    e.Statutory declaration from family of the sponsor;

    f.Statement from Joe Poulson attesting to the genuine nature of the relationship;

    g.Statement from Carla Klease attesting to the genuine nature of the parties relationship and living arrangements;

    h.Statement from Tony McCarthy, attesting to his knowledge of the parties relationship and living arrangements;

    i.Statement from the sponsor’s employer and friend attesting to the genuine nature of the parties relationship and living arrangements; and

    j.Statement from the applicant’s sister attesting to the genuine nature of the parties relationship and living arrangements.

11. After the scheduled hearing the parties provided the Tribunal with a significant amount of additional information, including statutory declarations in support of the claim that the parties are in a genuine, continuing and exclusive spousal relationship.

12. As the applicant did not hold a substantive visa at the time of application, but lodged the application within 28 days, the applicant is subject to the requirements of criterion 3004 unless there are compelling reasons for not applying that criterion.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Whether the parties are in a spouse or de facto relationship

14. Clause 820.211and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

15. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

16. In forming an opinion, whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other, as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

17. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses. Apart from a car loan with around three years to pay off, the parties share the rent with another roommate and household expenses. There are no other assets or liabilities. Their joint bank accounts support their claims as does their rental agreement. The parties gave consistent and credible evidence to the tribunal in relation to their financial arrangements and future plans.

18. The Tribunal is satisfied that the financial aspects of the parties’ relationship support a finding that their relationship is viewed as long term and that they live together as a couple.

19. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework. The parties have lived together at the same apartment with a mutual friend for the last three years. They gave credible and consistent evidence of their living arrangements and were supported in these claims by family and friends who have been close to the couple for a considerable period of time.

20. The Tribunal is satisfied that the nature of the parties’ household supports a finding that they have a mutual commitment to a shared life together to the exclusion of all others.

21. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities. There is ample evidence before the Tribunal that the parties are seen as a couple and are planning a marriage.

22. The Tribunal is satisfied that the social aspect of the parties’ relationship supports a finding that they are in a genuine, ongoing and exclusive spousal relationship.

23. The Tribunal has considered the nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

24. The evidence before the Tribunal is credible and consistent with a finding that the parties have a long term and mutual commitment to a shared life together. They demonstrated extensive knowledge of each other’s hopes and plans and have the support of a close family. The applicant has provided financial and emotional support to the sponsor during an extended period of unemployment and both have settled into a shred life with family and friends.

25. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and at the time of this decision.

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

26. 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).

27. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. Her substantive visa ceased on 11 March 2017 and 21 March 2017. 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.

28. In this particular case, only criterion 3004 is relevant.

    Criterion 3004

29. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

30. The applicant’s substantive visa ceased on 11 March 2017 and she was granted a bridging visa in relation to her partner application 10 days later on 21 March 2017. During a long discussion at hearing about the circumstances of the applicant not lodging the application, prior to the expiration of her substantive visa, both parties were truthful and frank, admitting that they had not focused on the importance of the time of lodgement or that the applicant becoming unlawful would have such significant consequences. Both parties also admitted that they had struggled to find the money to lodge the application (some $7,000.00). The sponsor had been unemployed for a year and the applicant was earning around $1500.00 per fortnight from casual employment. They told the Tribunal that they finally had to borrow funds from the applicant’s step father in the United Kingdom in order to lodge the visa application. This sum was transferred into the applicant’s bank account on the 3 March 2017. The Tribunal put to the applicant that she had the money in her account a week before her visa ceased and she could have lodged the application on time. Again, the applicant admitted that they had not thought the consequences of being a few days late would be so significant.

31. The parties also told the Tribunal that they were in Sydney at the time they lodged the application and found it difficult to get the papers together. The Tribunal asked them why they would travel to Sydney when they knew that they had to lodge the application. It transpired that the parties went to Sydney after the visa ceased and hence cannot be considered a reason outside the applicant’s control for not lodging the visa on time. The parties reluctantly agreed and told the Tribunal it was a genuine mistake.

32. The Tribunal is not satisfied that the applicant was not the holder of a substantive visa because of factors beyond her control.

33. The Tribunal does not question that the applicant has fully complied with the conditions of her past visas or that she would not also fully comply with any further visa she may be granted.

34. Equally, the Tribunal is satisfied that had the applicant applied for the visa at the time she held a substantive visa some ten days prior to the lodgement of her application, that visa would likely have been granted. As mentioned above, the Tribunal is satisfied that the parties are in a genuine, ongoing and exclusive spousal relationship.

35. The Tribunal has considered whether there are any compelling reasons to grant the visa. The parties have admitted that they were neglectful in lodging their application, not for reasons beyond their control, but because they did not realise the significant impact that failing to lodge within time would have on their lives.

36. 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.

37. The Tribunal acknowledges that the parties are in a genuine relationship, having lived together in Australia for around three years and in a de-facto relationship for nearly four years. They claim they were engaged to be married in 2017 but have not made any firm plans for a wedding. They have leased an apartment together with a mutual friend for the last three years. They do not have children or any family members that require their care or who would be disadvantaged if they departed Australia in a way that would constitute it being a compelling reason to waive the Schedule 3 criteria.

38. The Tribunal also acknowledges that the cost of travelling to the United Kingdom for both parties and lodging another application would be significant – in the vicinity of around $10,000.00. This is money that the parties do not have and would have to save for a considerable period to be in a position to reapply for a visa from offshore. The applicants have family in the United Kingdom, and would be supported to a certain extent, but both have said it would be difficult to find well-paying jobs. They would, however, be together.

39. The sponsor’s mother and father attended the hearing to support the parties. The sponsor’s mother is currently in remission from cancer and is still unwell. The sponsor told the Tribunal that he would find it difficult to move away from his mother. There was no suggestion that the sponsor himself had any role in providing day to day care and assistance to his mother.

40. Having weighed all the circumstances individually and cumulatively, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

    CONCLUSION

41. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

42. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).