Puru (Migration)

[2018] AATA 3444

Puru (Migration) [2018] AATA 3444 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jody Puru
Master Joel Andreassend
Master Jody Puru

CASE NUMBER:  1702242

DIBP REFERENCE(S): BCC2016/1827950 BCC2017/3014269

MEMBER:Adrienne Millbank

DATE:24 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications of the first named applicant and the second applicant for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

The Tribunal affirms the decision not to grant the third named applicant, Jody Puru (junior) a Partner (Temporary) (Class UK) visa.

Statement made on 24 July 2018 at 2:38pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Schedule 3 criteria – Compelling reasons – Previous convictions – Working life – Detriment to current employer – Attempt to regularise stay – Long term relationship – Third named applicant no longer a dependent – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 820.211, 820.321, 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 of a delegate of the Minister for Immigration on 23 January 2017 to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, Mr Jody Puru, is a New Zealand citizen born in 1975, who applied for the visa on 23 May 2016 on the basis of his relationship with his wife and sponsor, Ms Lorna Andreassend, who was born in New Zealand in 1974 and became an Australian permanent resident on 9 May 2016.

3. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.

4. Mr Puru and the sponsor Ms Andreassend have known each other since they were young teenagers. Their first child was born in 1990, when they were still dependent on the support of their families. They entered into a de facto relationship in 1992, and married, on the Gold Coast, in 2007. They have six children, the youngest two of whom were born in 1999 and 2001, and are included in the application.

5. The Delegate refused to grant the visa on the basis that Mr Puru did not satisfy cl.820.221(2)(d)(ii). The applicant was found to not meet Schedule 3 criteria, and the Delegate was not satisfied that there were compelling reasons for not applying those criteria.

6. Information on the Departmental file and in the Delegate’s decision indicates that Mr Puru has lived and worked in Australia since 30 December 2005, leaving only for short visits to New Zealand. On 6 August 2007 his application for a Special Category (SC) (TY 444) was refused on character grounds, because of his criminal record: between 1988 and 2003 in New Zealand Mr Puru received a total of 21 convictions, ranging from minor fines for not registering his dog, to aggravated robbery, in 1994, for which he was given an 18 month sentence with suspended imprisonment.

7. Mr Puru appealed the decision to refuse him a SC (TY 444) visa to the then Migration Review Tribunal, which affirmed the decision. He appealed, successfully, for Ministerial intervention. On 30 November 2010 his application for another SC (TY 444) visa was again refused on character grounds. He again appealed this decision through to Ministerial intervention, this time unsuccessfully. On 15 March 2016, he received an outcome of ‘not considered’.

8. Information on the Departmental file and in the Delegate’s decision indicates that at the time of application the applicant was on his twenty-fifth Bridging E visa, and had been an unlawful non-citizen for a cumulative total of eight months and two days, around the times of lodging appeals and applications for bridging visas.

9. Mr Puru appeared before the Tribunal on 11 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his sponsor and partner, Ms Andreassend, and from Mr Tye Bridgman, the General Manager Queensland of the civil engineering company Mainland Civil, Mr Puru’s employer.

10. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

11. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration for the first and second named applicants, and the decision under review should be affirmed for the third named applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether there is a compelling reason or reasons to waive the Schedule 3 criteria.

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

13. 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).

14. 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

15. 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.

16. Departmental records show that the applicant’s last substantive visa ceased on 29 November 2010. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

17. 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.

18. 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.

19. The Tribunal asked Mr Puru about his criminal record. He stated that his convictions were when he was young, in his teens and twenties, in New Zealand, and without stable employment. His most serious was aggravated robbery, in 1994. He confirmed that he has had no court convictions since 2003. He acknowledged that he was fined $500 on 13 December 2016 at the Southport Magistrates Court for being ‘Drunk or Disorderly in Premises to which a Permit/Licence Relates’. He claimed he was with a group of people, one of whom he believed was being victimised, and that he could have avoided this fine if he had appeared in court and explained himself, but felt that it was more important for him to be at work on that day.

20. Mr Puru described how he started his working life in Australia as a machine operator on construction sites, and has been promoted into positions of responsibility. He stated that he has been working with Mainland Civil, for nine years, in recent years as site supervisor in a team leadership position. He described Mainland Civil as a large company involved in iconic projects, and described also his involvement in mentoring and training young people starting out in employment. Evidence was provided that Mr Puru was awarded a Mentor of the Year Award, in 2014, by the Building Employees Redundancy Trust (BERT), which provides training grants for employers in Queensland. He advised that he has been asked to move up into a more senior position at Mainland Civil, of operations manager, which he will do if and when he ‘gets his visa situation sorted’.

21. In one of many letters of support provided by family and colleagues, a distant cousin of Mr Puru, related through marriage, wrote ‘I have never seen such a hard working person … When I met Jody, my wife made me aware of his background. If I wasn’t told about his past I could honestly say I don’t believe and will not believe he was that person’. The Tribunal accepts that Mr Puru, now in his forties and with his life focussed on work and family, is no longer a threat to the Australian community because of crimes committed when he was in his teens and twenties, in New Zealand.

22. Regarding his visa applications and refusals, and time unlawfully in the country, Mr Puru explained that he was confused by his second visa refusal, because he believed that the Minister’s intervention after his first visa refusal entitled him to receive further SC visas. He further explained that he was unfamiliar with the complexities of Australia’s visa system, and was confused regarding requirements to apply for Bridging visas, with expiry dates, at times when he thought he was the holder of a SC visa. The Tribunal found Mr Puru’s explanations plausible, and accepts his claims that it was never his intention to become unlawful, and that he has tried to regularise his stay.

23. Mr Puru and Ms Andreassend, through their representative, put forward the following claims to compelling circumstances:

    • they are in a long term relationship and as a family they would suffer emotionally and financially should Mr Puru be required to leave the country; and
    • Mainland Civil would suffer detriment through the loss of a valued employee.

24. Mr Puru and Ms Andreassend have been in a de facto and spousal relationship for over 26 years, and have lived in Australia since January 2006. Their six children all live in Australia. Their youngest son, who is still at school, lives with them, and their second daughter, who separated from her partner in December 2017, and her three young children also live with them. Mr Puru’s parents and five of his six siblings live in Australia. Ms Andreassend’s mother and step-father and four of her five siblings live in Australia.

25. Evidence was provided that Mr Puru and Ms Andreassend have been active members of their Church since 2006, and that they established a not-for-profit gym, which teaches kickboxing to young people in the area. Written statements, many lengthy and considered, were provided by members of the family, including nieces, nephews, cousins and parents-in-law, describing the applicant as a loving and supportive family man and contributor to church and school sports activities.

26. At hearing Ms Andreassend advised that she stopped working in December 2017, in order to support her daughter and care for her grandchildren who moved in with them following her daughter’s separation from her partner. Evidence was provided that Ms Andreassend was, at the time of decision, undergoing MRI scans. She advised that she has undiagnosed health issues causing tiredness. In a letter to the Tribunal dated 9 July 2018 she wrote ‘We have been living in Australia for the past 12 years and in that time I have seen Jody mature into a loving grandfather to our 6 grandchildren’. She further advised ‘Without Jody’s help I could not manage to care for my children and grandchildren. Not only his financial help but also when he gets home from work he will shower the children, do washing, help out with dinner. … Jody has always been the main provider and pays for everything with the mortgage being the biggest bill. Not being able to afford this payment for our home would have me, our son, 2 daughters and 3 grandchildren homeless as we would be forced to sell the home. … I have no family in a position in New Zealand to help Jody or me as they are very elderly now’.

27. At hearing Mr Puru advised that he and Ms Andreassend purchased their four-bedroom home in 2014 as a family base. In a letter to the Tribunal dated 8 July 2018, the parties’ second-eldest daughter, Karissa, wrote ‘moving back into my parents’ home has seen my dad take on me and my 3 children financially from providing us with a room, food, necessities like nappies, buying school uniforms, car registration, petrol, taking the children out to parks, occasionally to the movies. With strained finances my parents were still able to put on a recent birthday for my 5 year old daughter. … If my father was to be denied the visa this would have such a detrimental effect on my mother and also myself and children. It would leave us financially and emotionally distraught. With no income I would not be in a position to be able to support me and my children or help my mother. My father is the main provider for my mother and younger siblings as well as me and my children’. At hearing, Ms Andreassend stated that she and Mr Puru were encouraging and supporting their daughter in her plans to return to work as a hairdresser.

28. The Tribunal accepts and finds compelling that the parties are in a long-term relationship; that they are settled in Australia; that Mr Puru is a valued as leader and mentor in his extended family and community; and that should he be required to leave the country, this would cause emotional distress to his family. The Tribunal further accepts and finds compelling that Mr Puru is the breadwinner of the family and that the family would suffer financial as well as emotional distress should he have to leave the country and he and Ms Andreassend be required to sell the family home. Evidence was provided that Mr Puru’s earns a gross annual income of $128,000 and that a significant portion of his after-tax income, $660 a week, goes to pay the mortgage.  At the time of decision Mr Puru was supporting a household of eight people. At hearing Mr Puru confirmed that he and Ms Andreassend have little in the way of savings. A weekly budget was provided, showing income of $1680 from Mr Puru and $192 from his daughter, and household expenditure of $1698.

29. Regarding detriment to his employer, letters of support were provided to the Tribunal by Mr Tye Bridgman, General Manager Queensland of Mainland Civil; Mr Warwick Stratton, Project Manager; and Mr Aaron Carter, a Leading Hand, all stating that Mr Puru plays an important role in the operations of the Queensland team. Mr Bridgman wrote:

    Over the last 9 years Jody has been a well-respected member of the Mainland Civil Team and the wider construction industry and is often on our tier one, larger scale projects as a matter of course. As we understand it, Jody is currently under assessment review for his residency, and there is a very real possibility of him being requested to leave the country. This would be a major setback for our construction division and in particular some of our tier one sites. It would affect the efficiency and productivity on our sites and in Jody’s departure, this would have impacts on the construction costs of our projects which would cost our business hundreds of thousands of dollars and in the short term would have detrimental effects on employment of many of our construction workers as we would need to let several of these employees go. Naturally this would have an impact on their families. There would also be significant delay costs on several projects which would have a further financial impact on our business as we are faced with large scale liquidated damages if our delivery is late. … We rely on Jody’s experience and practicality day to day at a site level and in a highly specialised Civil Engineering industry. It would be difficult to replace Jody and would be a major burden on our company if this were to occur.

30. Mr Bridgman provided testimony at hearing as a sworn witness. He advised that Mr Puru is currently working on major multi-billion and multi-million dollar projects in Brisbane. He described how Mr Puru’s role as  site supervisor, coordinating the activities of up to 100 people and involving complex ‘vertical excavations’ at city sites, is pivotal. He stated that the company has invested in training Mr Puru; that Mr Puru is experienced and trusted; and that he could not be replaced without detriment to the company.

31. The Tribunal accepts that Mainland Civil would suffer detriment through the loss of a valued employee should Mr Puru be required to leave the country, and finds this a further compelling reason to waive the Schedule 3 criteria.  

    Findings

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.

34. At hearing the applicant advised, through his representative, that the older of the secondary applicants, Jody Puru junior, is no longer a dependent of the applicant and intends to withdraw his application following the outcome of the review. The Tribunal finds that as he is unable to meet cl.820.321 the Tribunal must affirm the decision not to grant Jody Puru (junior) a Partner visa on this basis.

35. Evidence was provided that the younger of the secondary applicants, Joel Andreassend, is still at school, lives with and is a dependent child of the applicant. The Tribunal finds that the secondary applicant, Master Andreassend, is to be reconsidered against the criteria in light of the direction that the primary applicant meets the Schedule 3 criterion.

    DECISION

36. The Tribunal remits the applications of the first named applicant and the second applicant for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

    The Tribunal affirms the decision not to grant the third named applicant, Jody Puru (junior) a Partner (Temporary) (Class UK) visa.

    Adrienne Millbank
    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.