Nurdiana (Migration)

[2024] AATA 1213

Nurdiana (Migration) [2024] AATA 1213 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lutpita Nurdiana

CASE NUMBER:  2003697

HOME AFFAIRS REFERENCE(S):          BCC2018/228614

MEMBER:Tegen Downes

DATE:14 May 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 14 May 2024 at 2:07pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – discretion to waive criteria –saving to pay application fee – longstanding and genuine relationship and hardship if separated not of themselves compelling reasons – conscious decision for applicant to remain unlawfully – applicant’s work in small town and sector with skills shortages – sponsor’s recent surgery – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, criteria 3001, 3003, 3004

CASES
Al Souhmarani v MIBP [2016] FCCA 2866
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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 January 2018 based on 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 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations because:

   a.the delegate was not satisfied that the applicant and the sponsor were in a de facto relationship, within the meaning of the Act; and

   b.the applicant did not satisfy the relevant Schedule 3 criteria and the delegate considered that there were no compelling reasons to waive those criteria.

4. The applicant appeared before the Tribunal on 14 May 2024 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 the decision under review should be affirmed.

   ISSUE AND LAW

6. 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).

7. The determinative issue in the present case is whether the applicant meets the Schedule 3 criteria, or whether there are compelling reasons for not applying those criteria.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The applicant is a 34-year-old woman from Indonesia. She claims to be in a de facto relationship with the sponsor, a 53-year-old Australian citizen.

9. The couple claim to have met in Bali in 2013. They claim to have commenced a de facto relationship when the applicant came to Australia on a Tourist visa in August 2015. The applicant was subsequently granted a granted a further Tourist visa in January 2016, which expired on 18 February 2017.

10. During the visa periods, the applicant claims to have travelled to and from Australia in accordance with her visa conditions. She last arrived in Australia on 18 November 2016.

11. After the applicant’s second Tourist visa expired, she remained in Australia unlawfully for approximately 11 months. She then applied for the visa that is the subject of this review application and was granted a bridging visa.

    Does the applicant meet the Schedule 3 criteria?

12. It is not in dispute that the applicant did not have a substantive visa at the time she applied for the visa that is the subject of this review. She also did not enter Australia as the holder of a Subclass 995 visa or special purpose visa.

13. Accordingly, the next issue to be determined is whether the applicant satisfies 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) of Schedule 2 of the Regulations.

14. 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.

15. In this case, the relevant day was the last day when the applicant held a substantive or criminal visa, being 18 February 2017. As the visa application was made some 11 months later, the applicant does not meet the relevant Schedule 3 criteria.

    Are there compelling reasons for not applying the Schedule 3 criteria?

16. The expression ‘compelling reasons’ in cl 820.211(2)(d) is not defined in the Act or Regulations. However, according to jurisprudence, 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].

17. It is also relevant for the Tribunal to consider the purpose of the provision which, in the context of cl 820.211(2)(d)(ii), is to deal with cases where there are compelling reasons for not putting particular applicants to the hardship of having to leave Australia to apply for a partner visa: Al Souhmarani v MIBP [2016] FCCA 2866 at [18].

18. 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.

19. Ultimately, whether the circumstances are ‘compelling’ will be a matter of fact and degree for the Tribunal to determine.

20. The department’s policy (which is not binding on the Tribunal) indicates that, as a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship that may be suffered if the parties are separated and the applicant is forced to apply for a partner visa outside of Australia, should not of itself amount to compelling circumstances. However, this is not absolute, and the Tribunal must assess whether the circumstances as claimed by the applicant are a compelling reason.

21. The delegate gave the applicant the opportunity to provide information about the exercise of the waiver. Relevantly, the couple responded as follows:

    There is only one Compelling reason to explain why we were late in applying for Spouse Visa 11 months after the Visitor Visa expired. The reason is it took me those 11 months to save the required $7,000 application fee.

    My understanding is you cannot apply for the Spouse Visa without lodging payment or alternatively there is no point in lodging the visa request IF you cannot pay the application fee as the document won't be accepted. I did what I considered the right thing and that was to save the $7,000 and only when I had the money did I / we apply for the Spouse Visa.

    The alternative was for Lutpita to exit the Country from 18/2/17 (when her visitor visa expired) and we would remain apart, until I had saved the required $7,000. I chose for her to stay in Australia with me. I can understand now how this breached her Visitor Visa, however given our committed relationship I wanted her to stay in Australia with me. I honestly felt the right thing morally was for us to stay together in Australia, whilst I saved the $7,000. if this becomes the reason for our Spouse Visa being denied, this seems unfair given is it our  commitment to stay together. I feel it’s a normal human emotion to ask my partner to stay with me/ live together as a couple, whilst I saved the Application fee. If the Department had a delayed fees system and or an instalment system (given the process take 18 to 24 months anyhow) this would be, as a suggestion better and a fairer system for Applicants who just do not have the $7,000 application fee, to pay in full upfront.

    It does take some people, a long time to save $7,000. Lutpita’s Visa’s all have not allowed her to work in Australia and so I am responsible for all her living and food costs.

22. The couple also submitted to the Tribunal before the hearing:

    We do not have an Australian Child together, yet we have our enduring 9 year relationship which will suffer, be destroyed, if a Partner Visa is not granted. If we are not given a Partner Visa and thus would be required to separate with Lutpita having to vacate the Country, this would have the obvious emotional negative implications along with negative financial implication for me and my ability to meet basic cost of living expenses like mortgage, food and utilities.

    Myself, as the Australian Partner would suffer emotionally and financially. The emotional suffering from a committed 9 year relationship of living, that would be torn apart via a physical separation of a Partner Visa refusal, goes without saying. It would be devastating to my mental health. The financial suffering would be such that the home we live in, I have a $2,320 a month Mortgage which requires both my income and Lutpita’s income to service. If we were forced to separate with Lutpita having to leave the Country, I don’t know how I could afford to put a roof under my head and continue to meet general cost of living expenses, with just my income alone.

    Lutpita, by working, is contributing financially to the Country and our relationship. Her Working is supporting us both financially, via her contribution to our cost of living expenses. Since Lutpita has been able to work in Australia, our household has grown. We now have a house of our own to live in, rather than renting AND with Lutpita’s support I have been able to start and grow my small construction business. Without a committed life partner, If she was forced to leave the Country the life we have built together will slowly fall apart. Financially I would struggle and undoubtably my small business will suffer without Lutpita’s help and support.

    Additionally, a further compelling reason is Lutpita works at the Local Aged Care Facility (Orana Lutheran Services). Aged Care workers are in a critical shortage and are crucial to the Australian Economy. The shortage of aged care workers is exacerbated in our smaller regional town, where it is more difficult to contract in Agency Staff as Kingaroy is 2 1/2hrs from Brisbane. Her Employer, has already expressed worry about their future staffing of who will replace Lutpita if she is forced to leave Australia because of a Visa refusal.

23. I have carefully considered the applicant’s claims individually and cumulatively, as well as the supporting evidence provided. However, I am not satisfied that there are compelling reasons for not applying the Schedule 3 criteria.

24. I accept that the applicant and the sponsor have been in a longstanding relationship. I acknowledge that it may be difficult and stressful for the couple to be separated if the applicant is required to apply for an offshore partner visa. I note the sponsor’s evidence that he worked less following his divorce because he struggled emotionally, and that he may suffer the same if the applicant were required to leave Australia. I also accept that the applicant’s and the sponsor’s lives are established in Australia. I note their evidence that they have created a good life together, that they have been accustomed to each other’s companionship and emotional support, and that the sponsor is dependent on the applicant’s support in, for example, maintaining the household while he works to provide for them. I have given these matters some weight. However, I do not consider them to be sufficiently compelling.

25. In this regard, I note that the couple’s situation is precisely the situation that

    
    

    cl 820.211(2)(d)(ii) seeks to address. I note that the department’s policy  provides:

    Delegates should be mindful that the intent of the waiver provisions is only to allow persons with genuinely compelling circumstances to regularise their status. The provisions are not intended to give, or be perceived to give, an unfair advantage to persons who:

    ·fail to comply with their visa conditions;

    ·deliberately manipulate their circumstances to give rise to compelling reasons; or

    ·can leave Australia and apply for a Partner visa outside Australia.

    An example of where there may not be compelling reasons to waive the Schedule 3 criteria may be where an applicant has remained unlawful for a number of years, made little or no effort to become lawful, and claims compelling circumstances on the basis of a long term relationship with their sponsoring partner and/or hardship caused by separation if they were to apply outside Australia for a Partner visa.

    …

    Policy intends that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. This not only ensures fairness and equity to other applicants and discourages deliberate non-compliance, but also preserves the integrity of the Partner visa program in general and the waiver provisions.

26. I have also considered the financial impact on the sponsor if the applicant were required to leave Australia and his claim that ‘I don’t know how I could afford to put a roof under my head and continue to meet general cost of living expense, with just my income alone’. However, the couple gave evidence to the Tribunal to the effect that:

    a.The sponsor financially supported the couple (as the applicant was unable to work due to her Tourist and Bridging visa conditions) for more than six years.

    b.The applicant has worked for approximately 2.5 years (since the ‘no work’ restriction on her Bridging visa was removed). During this time, the sponsor has continued to pay “most” of the couple’s expenses (including the mortgage, rates, utilities, and car repayments) because he earns more than the applicant. The applicant has paid for “small expenses” such as groceries. Both the applicant and the sponsor have leftover income after paying their living expenses.

    c.I asked the sponsor to the effect of whether there had been any material change in his financial position since the time that he was responsible for financially supporting both himself and the applicant. His evidence was to the effect that his living expenses had decreased since then because the couple had moved from Brisbane to Kingaroy.

27. I acknowledge that the cost of living is a significant issue in today’s society. However, the evidence before the Tribunal does not suggest, for example, that the sponsor would face significant economic hardship or that it would be difficult for him to subsist without the applicant’s income. On the evidence before the Tribunal, I do not consider the sponsor’s financial situation to be a compelling reason to justify waiving the Schedule 3 criteria.

28. I have also considered the impact on the sponsor’s health. The applicant gave evidence to the effect that the sponsor becomes depressed, but that he has not been diagnosed with and is not receiving treatment for depression. Further, the couple gave evidence to the effect that the sponsor recently (in the past four weeks) had surgery to remove his appendix and to treat a hernia. However, they gave evidence to the effect that the recovery period is six to eight weeks and the sponsor stated that he was “feeling good”. On the evidence before the Tribunal, I do not consider these circumstances to be sufficiently compelling as, for example, there is no indication that the sponsor has any significant or long-term diagnosed health condition for which he requires the applicant’s care.

29. I acknowledge the applicant’s work in a rural Aged Care facility. However, I do not consider this to be a relevant consideration.

30. Overall, I consider that the applicant and the sponsor made a conscious choice for the applicant to remain unlawfully in Australia. While I acknowledge the sentiments behind that decision, it represented a deliberate breach of Australia’s migration laws. I do not consider that any of the circumstances raised by the couple are sufficiently compelling such that the applicant ought not be required to leave Australia to apply for an offshore partner visa.

31. I am 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) of Schedule 2 to the Regulations.

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

    DECISION

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

    Tegen Downes
    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).

    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.