Shaikh (Migration)

[2020] AATA 610

Shaikh (Migration) [2020] AATA 610 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Azim Shaikh

CASE NUMBER:  1831657

HOME AFFAIRS REFERENCE(S):          CLF2011/180042

MEMBER:Helena Claringbold

DATE:5 March 2020

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:

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

STATEMENT MADE ON 05 MARCH 2020 AT 9:31AM

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – Federal Circuit Court remittal – application not lodged within 28 days after last substantive visa ceased – migration history and time as unlawful non-citizen – compelling reasons for not applying criterion – genuine relationship not, of itself, a compelling reason – length of relationship and financial circumstances – best interests of child – decision under review remitted

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, criterion 3001(2)

CASE
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. On 24 October 2011, Mr Mohammed Azim Shaikh, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on his spousal relationship with Ms Joana Marie Zapanta, the sponsor.

2. On 24 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not meeting the criterion of Schedule 3001 of Schedule 3 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result the applicant did not meet subclause cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations made under the Act.

3. On 19 July 2017, the applicant provided the Tribunal with a copy of the delegate’s Decision Record and requested a review of the delegate’s decision. On 17 August 2017, the Tribunal, differently constituted, found that it did not have jurisdiction in the matter.

4. On 17 November 2017, the Federal Circuit Court of Australia (FCCA) found that the delegate failed to notify the applicant of his decision dated 24 March 2017 to the correct address for the applicant, after the applicant , had contacted the Department by telephone on 31 March 2016 to update his postal address and in contacting the Department by email on 14 October 2016 to confirm that his correspondence details had been updated, the applicant impliedly withdrew his nominated authorised recipient being the person who the applicant had previously nominated to receive documents from the Minister or his delegate. It found that the Tribunal (differently constituted) fell into jurisdictional error and remitted the matter to the Tribunal for reconsideration.

5. On 25 February 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and witnesses. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

8. 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.

   BACKGROUND ON THE EVIDENCE

9. The applicant was born in 1985 in Hansot, Broach, India. His parents live in India. The applicant did not declare any siblings or any previous marriages or de facto relationships. On 11 July 2003, he entered Australia as the holder of a Subclass 573 Student visa. On 18 July 2003, the applicant was granted a further Subclass 573 Student visa which ceased on 15 July 2007 and which was the last substantive visa held by the applicant.

10. On 3 July 2007, the applicant lodged a student visa application. On 23 August 2007, the student visa application was refused. On 15 September 2008, the Migration Refugee Tribunal (MRT) affirmed the decision and the applicant’s associated Bridging visa ceased on 22 October 2008. The applicant remained in Australia from 23 October 2008 to 24 October 2011 as an unlawful non-citizen. He is currently the holder of a Subclass 050 Bridging E visa.

11. The sponsor was born in 1984 in Cavite, Maragondon, Philippines. Her mother is a widow and lives in Australia. She has one sibling who lives in the Philippines.  Her remaining two siblings live in the United States of America. On 13 June 2005, she entered into a relationship with Mr Hussain Al-Haoulo. In November 2008, Mr Al-Haoulo and the sponsor separated. There are no children from this relationship.

12. In May 2005, the applicant and the sponsor (the parties) met at their workplace in Newcastle, Australia.  Approximately eight months later, the sponsor changed employment and the parties lost contact with each other. In or around October 2008, the parties reconnected with each other and subsequently entered into a relationship. On 15 January 2010, the applicant proposed marriage to the sponsor and on 15 April 2010, the parties married in Hamilton, NSW.

    Does the applicant meet the 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, the applicant must satisfy Schedule 3 criteria unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d) of Schedule 2 to the Regulations.

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. Specifically and as detailed in the delegate’s decision record, the applicant was granted a substantive visa, which ceased on 15 July 2007.  He applied for the visa under review on 24 October 2011. Therefore, at the time of application, it was more than 28 days since the applicant held a substantive visa.

16. 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.

    CLAIMS AND FINDINGS

19. In requesting a waiver to the Schedule 3 criteria, both prior to and at the Tribunal hearing, the applicant provided information in support of the parties’ relationship. The applicant also provided other information for consideration as to whether there are compelling reasons not to apply the Schedule 3 criteria. The applicant’s claims and Tribunal’s findings on that information are as follows.

20. The Tribunal considered the evidence relating to the Schedule 3 waiver and the long-term nature of the relationship. This included the information provided by the parties at the Tribunal hearing about the genuine nature of the parties’ relationship. It also included the information in third party statements from family and friends about the development and genuine nature of the parties’ relationship. Even if the Tribunal accepts that the applicant and the sponsor were living together before they became engaged and have been in a spousal relationship for almost ten years, a long term relationship is not necessarily a compelling reason in every case. A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa. A genuine, continuing and exclusive relationship need not be, of itself, a compelling reason for not applying the Schedule 3 criteria. The Tribunal has considered this evidence and the circumstances of the parties’ claimed relationship and is of the opinion that there is nothing in the individual circumstances of their particular case that should compel the Tribunal to not apply the Schedule 3 criteria on this basis singularly. The Tribunal is not prepared to waive the Schedule 3 criteria on the basis of the applicant’s long-term relationship with the sponsor.

21. In a statement dated July 2013, the sponsor stated the following: the applicant supported her return to study as a midwife and as a result they struggled every day. In a statement dated July 2013, the applicant stated the following: the parties faced challenges over the past three years, including sadness and poverty but they worked through these issues together. The applicant’s migration agent stated the following: that the sponsor and her family and friends were pivotal in getting the applicant ‘back up on his feet’. The sponsor is enrolled in Open University and hopes to get the grades to enrol in a Bachelor of Midwifery. The applicant is employed full time in construction and covers the expenses. His parents do not approve of the parties’ marriage because he was raised as a Muslim and the sponsor is Catholic. They have disowned him and refuse to accept the sponsor as their daughter and he has lost communication with his parents.

22. The applicant told the Tribunal the following: that he was enrolled in a Bachelor of Engineering (Mechatronics) at the University of Newcastle.  His application for a Student  visa was refused because he didn’t provide evidence of English proficiency. The MRT upheld that decision although commented that his English language skills were proficient. He became unlawful and existed by couch surfing and by doing ad hoc work. He lost all hope and was ready to return to India and then to Dubai.  At that time he met the sponsor and she convinced him to remain in Australia. The parties lived together for a few months before they married on 15 April 2010. They have lived as spousal partners since that time. They have experienced difficult times together but have worked through those difficulties. In 2013 he had an industrial accident and lost the top of his fingers. He was hospitalised and underwent surgery and the sponsor was by his side. Three years ago the parties decided to purchase a small business. The parties both work in the business seven days a week. He starts work at 7:00am and finishes between 9:00pm and 10:00pm. The sponsor starts work between 3:00pm to 5:00pm and finishes the same time as the applicant. In 2018, the parties had their child. When the applicant and the sponsor are working the child is cared for by a friend and after work they collect the child and return home. Outside of working hours the sponsor cares for the parties’ child. The parties borrowed $180,000 to purchase the business, with an agreement that the amount be paid back over three years and there is $20,000 yet to be paid. The parties do not have any financial assets. Their liabilities are that they owe $14,000 in legal fees; $8,000 for GST payments; $7,500 in credit and $3,000 in personal debt. The parties support each other in everything they do.  The applicant is the main source of income and support for the family.  If he departed Australia the sponsor would return to live in Hobart, where she would be assisted by her family and the business would be closed.

23. The sponsor told the Tribunal the following: that she would not be able to survive if the applicant had to leave Australia.  She would have to care for their child alone and the parties would lose the business and the house they rent.

24. Two witnesses who are friends of the parties told the Tribunal of knowing the parties for many years. They attested to the applicant and the sponsor’s relationship being genuine. One witness stated that she baby sat the child five to six days a week for five hours a day in her home and the other witness stated that he helps when he can.

25. The applicant’s representative stated the following: that consideration should be given to the length of the parties’ relationship; to the best interest of the child; that the applicant can’t return to Dubai as he does not have residency there; that as a result of the delegate not notifying of the partner visa refusal and the Tribunal (differently constituted) erring in its decision, it has been a four year fight for the applicant and the partner visa.

26. The Tribunal does not condone the migration history of the applicant. It is of the view that the applicant had little regard for Australia’s migration laws. He remained in and worked in Australia for many years as an unlawful non-citizen. The Tribunal is of the view that, the partner visa refusal was based on the applicant not meeting the criteria for the grant of the visa. While the Tribunal accepts that the FCCA remitted the matter to the Tribunal, it is of the view that the applicant has been provided procedural fairness in this matter. Regarding the applicant’s status in Dubai, it notes that the applicant is a citizen of India.

27. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence and the full circumstances of the parties’ relationship, individually and as a whole. It reflected on the information relating to the parties’ spousal relationship of ten years. In particular, thought has been given to the fact that the parties have a 15 month old child. It considered the care and support the applicant gives the child and the sponsor. It mulled over the financial circumstances of the parties and the additional burden, including financial burden, an offshore visa application would present them. It gave thought to the stability of the family unit, in what already appears to be tested circumstances. It has pondered the difficulties the sponsor would face during a separation from the applicant, particularly because of the day-to-day support the applicant provides to her and the child. The Tribunal is satisfied that the applicant’s departure from Australia would place undue stress on the sponsor and the Tribunal is compelled not to apply the Schedule 3 criteria in this case.

28. 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) of Schedule 2 to the Regulations.

29. 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

30. 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.

    Helena Claringbold
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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