SONI (Migration) - [2019] AATA 2678

SONI (Migration) [2019] AATA 2678 (27 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs SHEINY SONI
CASE NUMBER:  1708018
HOME AFFAIRS REFERENCE(S): BCC2016/4003158
MEMBER:Denis Dragovic
DATE:27 May 2019
PLACE OF DECISION:           Melbourne
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.820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 27 May 2019 at 10:06am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – consequence of separation – credible witnesses – emotional and personal challenges not compelling reasons – fear of harm based on relationship – inter-caste marriage – different religions – independent country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
Monakova v MIMA [2006] FMCA 849
MXYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 28 November 2016 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii). The applicant claimed that there were compelling reasons including that her husband, the sponsor, would face hardship, the applicant’s medical concerns would make return to India difficult and that they continued to support each other emotionally and their relationship is strengthened when the couple are physically co-located. The delegate decided that there were no compelling reasons and therefore did not waive the requirement to satisfy Schedule 3.
The applicant appeared before the Tribunal on 20 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, her brother-in-law and the brother-in-law’s friend.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
It is not in dispute that the applicant in the present case did not have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SONI (Migration) [2019] AATA 2678
Case: [2019] AATA 2678
Decision Date: 27 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by an applicant who did not hold a substantive visa at the time of lodgement. The Administrative Appeals Tribunal was required to determine whether the applicant met the Schedule 3 criteria or if there were compelling reasons for these criteria to be waived.

The primary legal issue was whether the applicant satisfied Schedule 3 criteria, specifically criterion 3001, which requires an application to be lodged within 28 days of the "relevant day." The Tribunal also considered the meaning of "compelling reasons" for waiving these criteria, as defined by case law. The applicant's substantive visa, a TU-573 student visa, expired on 16 August 2016, and the partner visa application was lodged on 28 November 2016.

The Tribunal found that the applicant did not satisfy criterion 3001 as the application was lodged more than 28 days after the expiry of her last substantive visa. Consequently, the Tribunal was not required to assess the remaining Schedule 3 criteria. The Tribunal then considered whether there were compelling reasons to waive the Schedule 3 criteria. While acknowledging the applicant's personal circumstances, including her relationship with her husband, inter-caste marriage, and fear of harm based on their different religions, the Tribunal concluded that these factors, as presented, did not constitute "compelling reasons" in the legal sense, which requires circumstances sufficiently powerful to move a decision-maker to exercise discretion.

Ultimately, the Tribunal remitted the application for reconsideration by the Minister, directing that the applicant be taken to meet criterion 820.211(2)(d)(ii) of Schedule 2 to the Regulations, allowing for further assessment of the remaining visa requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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.Does the applicant meet Schedule 3 criteria, or should those criteria be waived? 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).Criterion 3001 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. The Tribunal finds that in this case the meaning of ‘relevant day’ is found within subclause 3001(2)(c) of Schedule 3, namely the last day when the applicant held a substantive visa. The applicant’s last held substantive visa was a TU-573 student visa which ended 16 August 2016 whereas the applicant applied for the partner visa currently under consideration on 28 November 2016. As such the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. To meet the requirements of subclause 802.211(2)(d)(ii) you must satisfy each of Schedule 3 Criteria 3001, 3003 and 3004. As the applicant fails to meet criterion 3001 I am not required to assess against the remaining Schedule 3 criteria. 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.Compelling reasons 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. The applicant travelled to Australia in 25 February 2013 to study a Masters in Professional Accounting at the University of Queensland. She didn’t complete the masters degree but continued studying throughout the two year period. She then transferred to social work but after being placed in a work role she realized that it wasn’t her preferred career choice. By the end of 2015 or early 2016, she couldn’t recall exactly, she stopped studying. During this period she continued to live in Brisbane. During a visit to Melbourne she met her now husband in December 2015, they arranged to spend time together in April 2016 and then she moved to Melbourne. The applicant and her husband were married on the 7 November 2016. The applicant’s substantive study visa ended on the 16 August 2016. On the 15 August she applied for a new TU-500 visa and was granted a bridging visa with work and study rights. While on the bridging visa the applicant applied for her partner visa on 28 November 2016.