Safwan (Migration)

[2019] AATA 2126

Safwan (Migration) [2019] AATA 2126 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hussein Safwan

CASE NUMBER:  1720925

HOME AFFAIRS REFERENCE(S):           CLF2014/45743

MEMBER:David Barker

DATE:4 March 2019

PLACE OF DECISION:  Sydney

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.(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 04 March 2019 at 1:35pm

CATCHWORDS
MIGRATION – refusal – Partner (Temporary) (Class UK) visa – Subclass 820 – Federal Circuit Court remittal – no substantive visa at time of application – compelling reasons not to apply Schedule 3 criteria – longstanding genuine relationship – best interests of Australian citizen children – emotional hardship – decision under review remitted

LEGISLATION
Family Law Act 1975
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, Schedule 3, 3001, 3003, 3004

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 17 March 2014 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 (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 applicant did not meet the Schedule 3 criteria.

4. On 13 October 2016 the Tribunal (differently constituted) affirmed the decision on the basis that there were no compelling reasons at the time the visa application to not apply to Schedule 3 criteria.  The applicant subsequently appealed to the Federal Circuit Court.

5. On 5 September 2017 the Federal Circuit Court remitted the matter for reconsideration, on the basis the Tribunal had erroneously concluded that the existence of a genuine relationship could not constitute a compelling reason for the waiver of the Schedule 3 Criteria

6. The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

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

   BACKGROUND

8. The applicant is a citizen of Lebanon and is currently 28 years old. The decision record of the delegate from the Department, a copy of which was provided with his review application, provides the following information about the applicant’s migration history:

   • he arrived in Australia on 10 February 2011 on a subclass 572 Student visa which ceased 28 March 2012;
   • he applied for a subsequent subclass 572 Student visa on 4 April 2012 and this visa was refused on 10 August 2012;
   • [Details deleted]
   • on 10 December 2013 he lodged an invalid application for a subclass 602 Medical Treatment visa;
   • he lodged a valid application for a subclass 602 Medical Treatment visa on 23 December 2013. This application was refused on 7 January 2014;
   • he applied for a subclass 820/801 Combined Partner visa on 17 March 2014.

9. The Department refused the onshore partner visa application on the grounds that the applicant did not meet the Schedule 3 criteria, as the application was not lodged within the specified time frame, and because the delegate determine there were no compelling reasons to not apply the Schedule 3 criteria.

10. The sponsor was born in Iraq and is 29 years old.  She came to Australia in 1996 and was granted Australian citizenship in 1999.  She was previously married, from April 2009 to July 2015, there is one child of that relationship, [Child 1], aged [age].

11. The parties claimed that they met each other in December 2012 at a Christmas party and commenced a relationship shortly after that time.  The claim they were married according to Islamic cultural traditions in September 2014 and according to Australian law in July 2016. 

12. The applicant applied for the subclass 820/801 visas in March 2014 on the basis of being in a de facto relationship with the sponsor.

13. Documents provided to the Department in relation to his visa application include, but are not limited to:

    ·Photographs;

    ·Airline tickets for the sponsor;

    ·Contract for sale of land showing the sponsor and her previous husband as the purchasers;

    ·Order under the Family Law Act 1975 and terms of settlement;

    ·Statutory Declarations from Tamer Safwan and Hamad Ballouk;

    ·Statement by the applicant about the inception and development of his relationship with the sponsor;

    ·Statements by the sponsor about the inception and development of her relationship with the applicant and her abusive experiences in her previous marriage.

    • Statement by the applicant about the nature his relationship with the sponsor and the domestic violence she experienced in her previous spousal relationship.

14. Documents provided to the Tribunal in relation to his review application include, but are not limited to:

    ·written submissions and statements from the applicant and sponsor;

    ·report from Dr Jacqueline Youssef, social worker, dated 25 July  2016;

    • report from Dr Nazih Hamzeh, general practitioner, dated 9 July  2016;
    • report from [a specialist], dated 2 December 2015;
    • related medical evidence pertaining to a [a medical condition] suffered by the applicant in July  2015;

    ·applicant [health] analysis, dated 8 July  2016

    ·travel records;

    ·financial records;

    ·photographs

    ·medical and health professional evidence regarding the sponsor;

    ·NSW Births deaths and   Marriage certificate stating the applicant and sponsor were married in West Hoxton, NSW on 16 July  2016;

    ·Birth certificate regarding the [birth] of the parties’ son [Child 2].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant held a substantive visa at the time of his application or had applied within 28 days of the day his last substantive visa ceased and, if not, whether there are compelling reasons not to apply the Schedule 3 requirements.

16. The Tribunal has not made any critical assessment of the relationship between the applicant and the sponsor and has accepted at face value the claims that the parties are in a genuine and continuing spousal relationship.

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

17. 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).

18. 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

19. 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.

20. The applicant’s last substantive visa ceased in March 2012 and he submitted the application for a Partner visa in March 2014. Having regard to the definition of the relevant day in criterion 3001(2) the Tribunal finds that the applicant did not make the application within 28 days of the relevant day, which was 28 March 2012.

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

    Compelling reasons

22. 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.

23. Compelling reasons relate to the hardship that can result if an unlawful non-citizen wishing to remain in Australia on the grounds of his or her spouse or de facto relationship is obliged to leave Australia and apply from overseas. The waiver was introduced to provide flexibility for the Minister where ‘compelling’ circumstances arise.  The Explanatory Statement to Statutory Rules 1996, No. 75 which accompanied the introduction of the provisions gave examples of where a waiver may be justified as: where there are Australian- citizen children from the relationship, or the applicant and his or her sponsor were already in a long-standing partner relationship which has been in existence for two years or longer.  However, these examples are not part of the legislation itself.

24. 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.

25. Department policy states that 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 or who deliberately manipulate their circumstances to give rise to compelling reasons. The Tribunal has had regard to policy guidance in the Department’s Procedures Advice Manual (PAM 3) which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their visa status.

26. The Tribunal is not bound by Department policy. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.

27. [Details deleted].  He unsuccessfully applied for [a] medical treatment visa and was otherwise, until he lodged his application for a partner visa on Bridging visas.

28. When he appeared before me in January 2019 the applicant said he was not in a relationship with the sponsor at the time his last substantive visa ceased in March 2012 and that nothing was really going on between them at that time. He claimed he ceased having a valid visa in 2012 due to a mistake by his lawyer, but did not elaborate upon this claim.  The delegates decision record indicates that the applicant’s initial Student visa ceased  around 13 months after his arrival in Australia and that it was the lack of success in relation to an application  for a follow-up Student visa which resulted in March 212 being the point he last held a substantive visa.

29. I note that the applicant has not spent an extended period of time as an unlawful non-citizen of Australia.  However, on the basis of the evidence before me I am not satisfied that the applicant’s immigration history, the circumstances which led him to not hold a substantive visa at the time of the application provide a compelling reason for not applying the Schedule 3 Criteria.

30. As to concerns the applicant may have about returning to his home country, [he] confirmed he had intention to return to his home country in 2015, before he was injured in a motor vehicle accident.  He also conceded that he had encouraged the sponsor to visit his family in Lebanon and that they both at one stage hoed to hold a large wedding celebration there. He gave evidence that he does not consider Lebanon to be a safe place for the sponsor and her children to stay long term.  After considering this and the other evidence provided by the applicant I am not satisfied that he has demonstrated any current risks to his safety provide a compelling reason to not apply the Schedule 3 Criteria.

31. As to his current physical health, the applicant confirmed that he had a [a medical condition] in 2015 and requires six monthly follow up from a [specialist].  He has not provided any recent medical evidence regarding his [medical] condition.  I have reviewed the medical evidence provided to the Tribunal previously and accept his claims in relation to his [condition].  I am not however satisfied that he has demonstrated that he would not be able to access required medical support in his home country, or technical assistance [he] has referred to in previous submission he has  provided to the Tribunal.  I am not therefore satisfied that the applicant’s [health] condition or other medical conditions provide a compelling reason to not apply the Schedule 3 Criteria.

32. The applicant claims he met the sponsor in December 2012, at a time she had separated from her previous husband, from whom she was a victim of domestic violence. He claims they subsequently commenced a relationship, married according to Islamic cultural traditions in September 2014 and according to Australian law in July 2016.  The Tribunal acknowledges the applicant and sponsor have been in a committed relationship married for over four and a half years and that their relationship can be appropriately regarded as long term.

33. The Tribunal acknowledges a longstanding genuine relationship, on its own, can be sufficient to establish a compelling reason.   However, the Tribunal finds that  in and of itself the length and genuine nature of the parties’ relationship does not constitute a compelling reason to not apply the Schedule 3 Criteria, but has considered this issue in conjunction with other reasons put to it in this matter.

34. The Tribunal acknowledges either an Australian citizen child from the relationship or a longstanding genuine relationship, on their own, can be sufficient to establish a compelling reason The Tribunal notes that the sponsor gave birth to the couple’s child, [Child 2], on [date] and that they have provided a birth certificate from NSW Births Deaths and Marriages to support this claim.

35. The applicant and sponsor gave consistent evidence that she and her two children, including [Child 2], would not accompany the applicant for any extended period of time, if he was to return to Lebanon to apply for a partner visa rom that location.  They both acknowledged she has visited the applicant’s family in Lebanon, along with her elder child, but emphasise this was only for a few weeks and that they both have concerns as to her and the children’s safety if they were to remain in Lebanon for more than a short period of time.  The sponsor said that is the only child of her elderly parents who live in Australia.  The sponsor said that she needs to support them as they have age related health conditions.  She said that she also suffers from health [problems].

36. I have reviewed a [medical] report, dated 10 January 2019, from [a health professional], who states the sponsor [suffers various medical conditions].  The [health professional] states the sponsor has limited social and familial supports available to her and that she will be adversely impacted if she loses access to the support currently provided to her by the applicant as a consequence of his returning to Lebanon.

37. The applicant and sponsor claim it is in the best interests of both [children] to not be separated from the applicant for the length of time that would result from a requirement he depart Australia and apply for the Partner visa from offshore.  With respect to [Child 1], this is because of the lack of a healthy connection he has with his biological father and the strong attachment he has had with the applicant since he was quite young.  I have placed considerable weight on this claim, as I accept the sponsor and the children would not accompany the applicant to Lebanon for the period he would need to remain there whilst an offshore partner visa application was processed.  I accept the sponsor has [health] conditions, which if exacerbated by stress associated with a period of separations between the parties, would compromise her capacity to care for [the children].  I accept that the sponsor has limited social and familial supports available to her and as a consequence of these cumulative findings I am persuaded it is in the best interests of the children that thy not be separated from the applicant at their current developmentally significant [ages].

38. Accordingly. I am satisfied the fact the applicant and sponsor now have an Australian child, in conjunction with the applicant ’s parental role with his stepchild, provides a compelling reason for not applying the Schedule 3 criteria.

    Overall Assessment

39. The Tribunal has considered all of the claims made by the applicant in relation to his circumstances.  The Tribunal finds the length of the parties’ relationship, the birth of their child and the adverse impact a period of separation would have upon the sponsor’s ability to care for her two children provide compelling reasons why there would be undue hardship and adverse consequences from a requirement the applicant return to Lebanon to lodge the application for a Partner visa from that location.

40. On the basis of the cumulative findings it has made in this matter and after considering all the relevant circumstances as a whole, 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).

41. 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

42. 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)(ii) of Schedule 2 to the Regulations

    David Barker
    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.