Siyaguna Kosgodage (Migration)

[2017] AATA 1471

Siyaguna Kosgodage (Migration) [2017] AATA 1471 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Mariyon Dierdrie Shehara Fernando Siyaguna Kosgodage

CASE NUMBER:  1615994

DIBP REFERENCE(S):  BCC2016/1783925

MEMBER:Christine Kannis

DATE:17 August 2017

PLACE OF DECISION:  Perth

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

Statement made on 17 August 2017 at 3:19pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – No substantive visa – Schedule 3 criteria – No compelling reasons to waive – No reasons beyond applicant’s control

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 820.211(2)(d)(ii), r 1.09A, Schedule 3, Criterion 3001

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

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 19 September 2016 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 19 May 2016 on the basis of her relationship with her sponsor, Mr Amin Mohammad Anwer Ali. At that time, 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d)(ii) because she did not meet Schedule 3 criteria and there were no compelling reasons to waive the criteria.

5. The applicant appeared before the Tribunal on 24 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether there are compelling reasons not to apply the Schedule 3 criteria.

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

8. 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)(ii).

9. 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 and if not, whether there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

   Criterion 3001

10. 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.

11. The applicant’s migration history reveals that she arrived in Australia on a Subclass 676 Tourist visa which ceased on 5 July 2009. She was subsequently granted another Subclass 676 Tourist visa followed by two Subclass 573 Student visas and a Subclass 402 Training and Research visa. This last visa ceased on 30 June 2015.

12. The applicant was then granted a Subclass 600 Visitor visa which ceased on 1 November 2015. On 29 October 2015 she lodged an application for a further Subclass 600 Visitor visa which was refused by the Department. She lodged an application for review of this decision with the Migration & Refugee Division of this Tribunal (MRD) and 20 May 2016, the MRD decided it had no jurisdiction to determine the matter on the basis that the applicant had withdrawn her application.

13. For the purposes of this review the relevant day is 1 November 2015. The current visa application was lodged on 19 May 2016 and as the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

14. 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.

15. 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].

16. 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 [at 57].

17. The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant’s circumstances as a whole are to be taken into account.

18. Prior to the delegate making a decision in this case, the applicant was given an opportunity to provide evidence of any compelling reasons for not applying the Schedule 3 criteria. In response the applicant provided documentary evidence, including a Marriage Certificate. A written submission from the applicant’s representative dated 20 June 2016 was also provided. In this submission it was contended, among other things, that the applicant became a person without a substantive visa due to circumstances beyond her control.

19. As discussed with the applicant at the hearing, the focus of the original decision maker was whether there were compelling reasons to waive the Schedule 3 criteria and no assessment was undertaken to determine whether the applicant and the sponsor were in a genuine relationship at the time the application was lodged. Further, as discussed, a genuine relationship is not sufficient to establish compelling reasons for waiving the Schedule 3 criteria as a genuine relationship forms the basis of all partner visa applications.

20. The applicant is a 32 medical practitioner from Sri Lanka. The sponsor is a 31 year old financial advisor from Pakistan. He is an Australian Permanent Resident. The parties previously resided in Melbourne and now reside in Perth.

21. Prior to the hearing the applicant provided additional documentation including written submissions from the applicant dated 16 July 2017 and from the sponsor dated 16 July 2017. 

22. In her written submission the applicant said she made one wrong decision which was ignorantly made in October 2015 when she applied for a second visitor visa. She did not research about applying for her second visitor visa and when the application was refused she applied to the MRD for a review of the decision which enabled her to stay in Australia to sit an exam. She and the sponsor married on 14 May 2016. She received a formal offer of employment from Royal Perth Hospital (RPH) and was offered the option of a Subclass 457.   She received the MRD hearing invitation in March 2016 to attend a hearing on 20 May 2016 but she decided not to attend the hearing because she had her wedding and her job offer at RPH so she withdrew the application for a review. In addition, she said a successful review would have only resulted in a further visitor visa and so she had to choose between a Subclass 457 visa and a spouse visa. A Subclass 457 visa would have required her to apply offshore and so she chose to apply for a spouse visa. She referred to the refusal of her second visitor visa as tarnishing her immigration history. The applicant also contended RPH has a shortage of doctors and that she and the sponsor will suffer a great deal of separation anxiety if they have live separately. She would not be granted citizenship or residency in Pakistan and that the sponsor would not be granted a residential visa in Sri Lanka.

23. In the sponsor’s written submission he contended that the compelling reasons for waiving the Schedule 3 criteria is the applicant’s case were:

    ·Separation anxiety;

    ·A shortage of doctors at Royal Perth Hospital;

    ·If the applicant was to be stranded in Sri Lanka without a return visa to Australia they would find it difficult to settle as a family in both their home countries; and

    ·They are planning to have children in the coming year and would be devastated if they were to live in different countries.

24. Prior to the hearing several letters of support were also provided including letters from the applicant’s mother and the applicant’s father. The letters of support addressed the genuineness of the parties’ relationship and not the issue of whether there are compelling reasons for not applying the criteria.

    The applicant’s evidence

25. The applicant told the Tribunal that when she applied for a second visitor visa in October 2015 she and the sponsor were in a “good place” but they were not ready for marriage. She said she made a huge mistake in not researching her visa options at that time. She acknowledged that the Department had advised her to consider all her options. She told the Tribunal the reasons she did not research her options were that that she had not previously had any visa issues and that she was comfortable in her life. After her application for a second visitor visa was refused she lodged an application for review with the MRD. She said the basis of the application for review was that she had originally applied for a six month visitor visa but had been granted a three month visa.

26. Whilst awaiting an MRD hearing date the applicant came to Perth to undertake an observership at Royal Perth Hospital.  On 30 March 2016 she was invited to attend a MRD hearing on 20 May 2016. She said the sponsor visited her in Perth in March 2016 and proposed marriage. They married on 14 May 2016. On 19 May 2016 she withdrew her application for review before the MRD.

27. The applicant told the Tribunal she was then faced with three options. She said RPH had offered to sponsor her on a Subclass 457 visa however this would have required her to make the application offshore. The second option was to apply for a Partner visa offshore and the third option was to apply for a Partner visa onshore. After having her second visitor visa application refused she said she did not want to take the chance of going offshore and having another visa application refused.

28. The applicant told the Tribunal she knows many couples are separated during the visa application process but said in her case the separation anxiety would be worse because they both come from different countries. She said it would not be practical for the sponsor to relocate temporarily to Sri Lanka with her because he does not know the language and is not qualified to work there in his line of work as a financial advisor. She said it would probably be difficult for him to find a job there. She said she could not relocate temporarily to Pakistan with the sponsor because she does not speak the language and because she is Christian.

29. The applicant said RPH has a shortage of doctors and are currently undertaking an intake campaign.

30. The applicant told the Tribunal she and the sponsor are planning to have children next year and if she has to depart Australia temporarily to apply for a Partner visa offshore it will delay their plans. She said she wanted to start having a family before she is 32. She is currently 32.

31. The applicant said her main reason for seeking waiver of the Schedule 3 criteria is her fear of separation, even if the separation is temporary. She said the sponsor went Pakistan in November and December 2016 for his brother’s wedding. She was unable to go because of her visa restrictions and she found it very difficult to be apart from the sponsor. She said they have lived with each other day in day out since early 2015.

    The sponsor’s evidence

32. The sponsor said they knew from the start, from when they first met, that they would end up marrying each other. He said they married on 14 May 2016 because they finally got their parents’ permission.

33. The sponsor provided similar evidence to the applicant in relation to the three visa application options open to the applicant after she withdrew her application for review before the MRD. He said they did not want the applicant to take the chance of not being allowed to return to Australia and so they applied for the onshore Partner visa.

34. The sponsor said if the applicant is required to temporarily depart Australia, it would be difficult for him to relocate to Sri Lanka with her while she awaits the outcome of a Partner visa application because he does not speak the language and is not qualified to work there as a financial adviser. It is also difficult for foreigners to obtain employment in Sri Lanka. He said he would not want to relocate to Pakistan temporarily with the applicant because it is a country that does not value life.

35. The sponsor said if the applicant is required to temporarily depart Australia it will mean they will be separated. He has financial responsibilities which mean he needs to continue working in his current career in Australia. He and his brothers financially support his parents in Pakistan but he makes the largest monthly contribution.

36. The sponsor said that they want to start a family next year and he does not want the applicant to be living overseas when she is pregnant.

    The nature of the relationship of the applicant and the sponsor

37. The Tribunal accepts that the length and nature of a relationship are factors that may be taken into account in considering whether compelling reasons exist to exercise the discretionary waiver.

38. The applicant and the sponsor met in February 2012. The evidence was that they committed to a de facto relationship in January 2015 and on 14 May 2016 they married. The parties had been married for five days when the applicant applied for the Partner visa and at the date of the hearing they had been married for 15 months.

39. The delegate was not satisfied that the applicant has been in a genuine partner relationship with the sponsor since January 2015 and referred to only having evidence that they have resided together since April 2016. In an undated letter to the Tribunal the applicant said there was limited evidence of a de facto relationship since January 2015 because of the parties’ strong cultural backgrounds where de facto relationships are frowned upon. The Tribunal accepts the applicant’s explanation in this regard.

40. The Tribunal was provided with written statements made by the applicant’s mother, the applicant’s father and friends of the parties, made in support of the genuineness of the relationship. Prior to the hearing the applicant provided a significant number of photos which were identified as having been taken in 2012, 2013, 2014, 2015 and 2016. The photos depicted the parties attending social events together and taking trips within Australia together. Prior to the hearing additional documentation was provided which included but was not limited to a statutory declaration and evidence of travel.

41. Whilst not undertaking an assessment of the parties’ relationship, the Tribunal accepts that they are married and that they have socialised and travelled together for many years.

42. The Tribunal is mindful that earlier Departmental policy identified the existence of a long-standing relationship as a compelling reason. In the Tribunal’s view, that policy is more restrictive than, and not consistent with, the legislation. In particular, the Tribunal does not accept that a long-standing relationship constitutes a compelling reason in itself for the waiver. A long-standing relationship is one factor to be taken into account by the Tribunal, but it does not inevitably result in waiver.

    Emotional hardship

43. The evidence before the Tribunal was that if the applicant is required to leave Australia, she and the sponsor will suffer anxiety as a result of the separation.

44. The Tribunal considered carefully the anxiety which will result from the applicant departing Australia temporarily to lodge a Partner visa. The Tribunal accepts that this is not the preferred outcome for the applicant and the sponsor, and temporary relocation of the applicant, would be emotionally difficult for both parties. The Tribunal does not view the emotional difficulty the parties would face with the sponsor remaining in Australia to be a compelling reason in itself for waiving the Schedule 3 criteria.

    Plans to start a family

45. The applicant and the sponsor spoke of wanting to start a family and said these plans would be delayed if the applicant is required to depart Australia temporarily to make an offshore Partner visa application. 

46. The Tribunal does not view the delaying of plans to start a family to be a compelling reason in itself for waiving the Schedule 3 criteria.

    The circumstances which caused the applicant to lodge the Partner visa application more than 28 days after the relevant day

47. The applicant told the Tribunal that she did not research her visa options when she applied for the second visitor visa in October 2015. She said when the application was refused she applied for a review by the MRD however by the time the hearing date was set, a favourable decision would not have assisted her because the duration of the visitor visa she had been seeking (six months) had by then passed. She told the Tribunal that she was then faced with three visa application options, two of which required her to go offshore and make an application. She chose to apply for a Partner visa onshore because she and the sponsor did not want to be separated.

48. The applicant’s decision to not research her visa application options in October 2015 may have been unfortunate, although the applicant did not tell the Tribunal what, if any, other onshore visa applications would have been open to her at that time.

49. It was not contended, and there was no evidence to suggest, that the applicant became a person without a substantive visa due to circumstances beyond her control.

50. The Tribunal does not view the circumstances which caused the applicant to lodge her Partner visa application more than 28 days after the relevant day to be a compelling reason in itself for waiving the Schedule 3 criteria.

    The applicant’s employment in Australia

51. The applicant is currently employed as a medical practitioner at RPH. Her contract expires in January 2018 and she has received an offer of employment beyond that date.

52. The evidence before the Tribunal included a letter dated 1 June 2016 from Ms Joyce O’Hara, Senior Administrative Officer at of RPH. Ms O’Hara stated that the applicant had been offered a position as a Resident Medical Officer commencing on 26 June 2016. Ms O’Hara referred to the critical shortage of medical manpower at RPH at that time.

53. Whilst the Tribunal accepts the evidence presented in relation to the applicant’s employment, it may be open to the applicant to now apply for a Subclass 457 visa with RPH as sponsor.

54. The Tribunal does not view the applicant’s current employment in Australia as a compelling reason in itself for waiving the Schedule 3 criteria.

    Overall assessment

55. The Tribunal noted that the delegate did not undertake a formal assessment of the relationship and made no findings as to whether the parties are in a genuine spousal relationship. Accordingly, the Tribunal has also refrained from formally considering this issue.

1. Having taken into account all of the evidence before it, the Tribunal is not satisfied that there are, either separately or cumulatively, compelling reasons for not applying theSchedule 3criteria in this case. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

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

   DECISION

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

   Christine Kannis
   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.