Sy (Migration)

Sy (Migration) [2021] AATA 2825 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Susan Li Sy
CASE NUMBER:  1906987
HOME AFFAIRS REFERENCE(S):     BCC2017/4243117
MEMBER:C. Morfuni
DATE:30 June 2021
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 30 June 2021 at 3:43pm
C. Morfuni

Member
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant ceased to hold a substantive visa more than 28 days prior to lodging the visa application – visa applicant was unlawfully present in Australia for a period of over 3 years – compelling reasons for waiving the Schedule 3 criteria – genuine and committed spouse relationship at the date of decision – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, r 1.15A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ 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 Home Affairs to refuse to grant the visa applicant who is also the review applicant and who will be referred to in this decision as “the applicant”, a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for a combined Partner (Temporary)(Class UK)(Subclass 820) and Partner (Residence) (Class BS)(Subclass 801) visa (the combined visas), on 13 November 2017 on the basis of her relationship with her Australian Citizen 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 of the reasons set out in paragraph 4 below and which are set out in a decision record, a copy of which was provided to the Tribunal by the Applicant when she lodged the Application for Review on 25 March 2019.
The delegate refused to grant the visa on the basis of and finding that:
· the applicant did not satisfy cl.820.211(1) in Schedule 2 of the regulations (attached to this decision) at the date of application and therefore
· she did not meet the requirements of clause 820.221 in Schedule 2 and as a result, the applicant did not meet the requirements of 801.221(1) nor any of the requisite subclauses in cl.801.221 in Schedule 2 of the regulations (attached) at the date of decision as she did not hold either a Subclass 820 visa or have held a subclass 820 visa that ceased on notification of the decision to refuse a Subclass 801 visa.
The President’s Direction which is non-binding and which has been considered by the Tribunal, Conducting Migration and Refugee Reviews’ was made on 1 August 2018. Paragraph 8.2 of that President’s Direction states:
As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.
The Tribunal has considered the President’s Direction.
The Tribunal had before it written evidence which the Tribunal has considered, the relevant legislation, being the Migration Act 1958 (the Act), the Migration Regulations 1994 (the Regulations), the migration Procedures Advice Manual 3 (PAM 3) including applicable policy, submitted documentation including but not limited to the response to hearing together with all attachments, information and submissions provided by or on behalf of the applicant.
The applicant appeared before the Tribunal on 29 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the sponsor’s mother and a former work colleague and friend of the applicant. The sponsor’s parish priest was present at the hearing and had provided prior written evidence but did not give oral evidence. All of the evidence has been considered by the Tribunal.
The applicant was represented in relation to the review by her lawyer and registered migration agent, Ms Janice VU.
An interpreter fluent in the Tagalog and English languages assisted the sponsor’s mother at the hearing.
The Tribunal has read and considered the written submissions including but not limited to those forwarded by the applicant’s representative on 4 August 2020,
23 April 2021 and 24 April 2021 with all attachments, previous submissions and emails together with any attachments. It also considered any post hearing submissions including that the parties have since the hearing married, on 15 May 2021 and have submitted a copy of their marriage certificate.
Issue
The issue before the Tribunal is whether the applicable Schedule 3 criteria under the regulations are met and if not, whether there are compelling reasons not to apply the Schedule 3 criteria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration
Consideration of claims and evidence
The Tribunal is required to and has considered the whole of the evidence and information before it, in making its decision.
The Tribunal notes that much of the evidence provided to it relates to the genuiness and commitment of the parties, the strong and affectionate bond between them and mutual support provided over a long period of time but specifically since the applicant’s arrival in Australia in 2014, the evidence being from the parties and third persons. The evidence also addresses compelling reasons not to apply the Schedule 3 criteria.
The Tribunal is mindful of the policy applicable at the date of decision, which, although not binding, is considered and is set out below (migration Procedures Advice Manual 3 (PAM 3)). The applicable policy indicates that the legislative provisions are not intended to facilitate persons who:
·fail to comply with the visa conditions; or
·deliberately manipulate their circumstances to give rise to compelling reasons; or
·can leave Australia and apply for a partner visa outside Australia
Policy further states
·that the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave, and apply for the visa outside Australia are not, in themselves compelling reasons not to apply the Schedule 3 criteria
Background
·The applicant arrived in Australia on 2 May 2014 as the holder of a subclass 600 Visitor visa, which expired on 2 August 2014; Thereafter she remained unlawfully in Australia until 14 November 2017 when she obtained her first Bridging visa.
·She lodged an application for the current combined Partner visa under review on 13 November 2017.
·She was granted a Bridging Visa with no work rights on 14 November 2017 and another with work rights on 20 January 2018, pending further determination of her Partner Visa.
·The combined visa application (currently under review), was refused by the delegate on 20 March 2019 for the reasons previously outlined in paragraph 4 above.
·At the date of application, the applicant claimed to be in a long term same sex de facto relationship with her sponsor, from 12 May 2014 to the hearing with plans to marry in May 2021 and to have known that the sponsor and “had feelings (for her) since 1976”.
·The sponsor was previously married to her husband on 26 October 1991and was granted an Australian divorce order on 4 January 2002 under the Family Law Act 1975 (s48(2)) (copy Decree Nisi provided).
·The sponsor provided her immigration history in written evidence, indicating that she first arrived in 1986 on a tourist visa to Australia and was sponsored by her husband. They married in 1991 but her partner visa was refused on 28 April 1992 as she had lodged it out of time. She returned to the Philippines and in 1992 and her husband sponsored her again to Australia hving returned after three months and then travelled backwards and forwards to the Philippines for holidays.
·Both of the parties swore separate statutory declarations on 21 October 2017, 17 December 2018 and 24 April 2021 which were submitted to the Tribunal, declaring, in summary, their commitment to each other and the genuine relationship between them, their future plans to marry, compelling reasons as to why the Schedule 3 criteria to the regulations should not be applied in this case citing issues including but not limited to, the health of the sponsor, the health of the sponsor’s mother, Covid 19 issues in the Philippines and the hardship and other matters and obstacles which the parties would suffer if the applicant was required to leave Australia.
·The parties registered their Relationship on 14 December 2017 in NSW (copy certificate provided).
·The parties have submitted written documentation, supporting statutory declarations and letters from friends, family, a priest and three Members of Parliament. All of these support persons attest to the parties’ devotion to each other and that they are hard-working and upright members of the community. An appropriate weight was given to the supporting documentation by the Tribunal.
·At the date of this decision, both parties are aged 60.
·The parties married on 15 May 2021 in New South Wales, Australia and submitted a copy of their marriage certificate to the Tribunal after the hearing which the Tribunal has considered in making its decision.
As indicated, the visa applicant’s last substantive visa expired on 2 August 2014. She applied for the combined Partner visa on 13 November 2017 being more than the 28 days over the allowable limit for her to make an application for a further substantive visa following the expiry date of her last substantive visa. Consequently, the visa applicant was unlawfully present in Australia for a period of over 3 years.
The statutory declarations of the sponsor and the applicant indicate that with both parties’ knowledge and desires, the applicant made her decision to overstay her visa as she wanted to remain with the sponsor and did not want to return to the Philippines. Extracts to that effect appear from the written evidence outlined below.
·     the applicant stated “our relationship is the reason why I did not return to the Philippines as I wished to remain in Australia with Rose.” (statutory declaration dated 24 April 2021);
·     the sponsor stated “we have talked about lodging a partner visa for Susan for a while. I did not want her to return to the Philippines waiting for a long time to be allowed to come back to Australia to be with me. Just the thought that we may be separated to sort out Susan’s immigration papers brings tears to my eyes. I love her dearly and I can’t bear being away from her. Yes I do have family and friends here but when I go to bed at night, it will be just me – alone’ (paragraph 63). She further states, I would very much wish for Susan to be allowed to remain in Australia as my partner and to spend the rest of our lives together (statutory declaration dated 21 October 2017 (paragraph 64));
·     in the same statutory declaration the sponsor also stated regarding the parties’ finances at that time “we do not have any joint bank account at this time as Susan does not have a visa in Australia”(paragraph 51)…. When we get to 60 which is only a few years away, my dream is to take a year off travelling the whole of Australia. I would like Susan to see the beauty of Australia and how lucky it is to live in this country” (paragraph 59);
·     the sponsor states that she would suffer significant hardship if the applicant was required to depart Australia including emotional loss and grief and that she has come to depend on her “to be with her all the time” (statutory declaration dated 17 December 2018)
·     under “Compelling Grounds for the lodgement of a partner visa application in Australia” the sponsor states “Susan does not have a visa to live in Australia. She overstayed her visa so that she could be with me. We had both waited a long time for our relationship and we did not want to lose each other”
·     in her Statutory Declaration dated 24 April 2021 the sponsor states: “We both let Susan’s visa lapse and she then stayed with me and our relationship developed from that time” (paragraph 64)… “our relationship was so deep and intense and we did not want to be apart. We were both much older and we did not want to wait any longer to be together. Both Susan and I talked about her visa and decided to be together and hope for the best.” (paragraph 65).
The above statements cumulatively indicate to the Tribunal that the applicant’s motives included a deliberate decision by her to overstay her visa unlawfully since 2014 with the knowledge of the sponsor, which decision is specifically against the policy previously outlined (paragraph 14 above). The Tribunal accepts that the policy is not binding and provides a guide which is considered by decision makers. In this case, the Tribunal gives it significant weight in the light of the parties’ clear statements. The Tribunal must however consider that evidence as part of the whole of the evidence and information before the Tribunal and give it the appropriate weight in that context.
In her statutory declaration dated 17 December 2018, the applicant addresses the regulation 1.1 5A issues which are canvassed in this decision and which are considered by the Tribunal below (paragraph 42).
SCHEDULE 3 CRITERIA (cl.820.211(2)(d))
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).
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
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.
As the visa application was not made within 28 days of the relevant day (being the last day that that the applicant held a substantive visa which was on 2 August 2014 , the applicant does not satisfy criterion 3001. Under these circumstances she cannot satisfy the Schedule 3 criteria and therefore it is not necessary for the Tribunal to address the other Schedule 3 criteria.
Compelling reasons
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.
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 claims made as to compelling reasons include the following:
• The sponsor assists her mother as does the applicant as outlined in other parts of this decision and the sponsor works however changed jobs in order to assist the sponsor’s mother. The Tribunal is not persuaded that the applicant changed jobs from 21 April 2021 in order to spend more time with the sponsor’s mother. This assistance is not reflected in the aged care ACAT report submitted to the Tribunal.
• The sponsor’s health issues including issues with her feet and possible depression relapse.
The sponsor was reported in 2020 to have calcium deficiency for which a naturopath recommended supplements and she also has acupuncture and analgesia for pain as she does not wish to take medications but advised in her written evidence that she takes Thyroxin for an underactive thyroid and some supplements including for calcium and vitamin D deficiency.
The sponsor has had past episodes of depression for many years dating back to 2001 when she divorced and that year lost her job. A psychologist report dated 6 October 2017 outlines the history and sources it to the breakdown of her marriage. The Sponsor’s sworn written evidence also makes this claim. Psychologist receipts were submitted for June and August 2020 but there is no recent written evidence or updated report before the Tribunal in relation to these matters and the Tribunal is therefore not in a position to draw any conclusions other than visits from receipts submitted, as to the state of the Sponsor’s actual or possible depression. The parties expressed concerns that the sponsor may relapse into depression if the applicant is required to leave Australia.
The sponsor also raised medical problems with her feet and back, that often walking is difficult and that the applicant assists her by taking the rubbish out negotiating three flights of stairs. She indicates that she has sought assistance and does exercises but that these are of limited value. Nevertheless the evidence indicates that she goes out, travels and undertakes other activities and that she is able to get around.
The Tribunal notes the report for the Sponsor from a Naturopath on 16 July 2020 indicating that she has low calcium which could cause depression and recommends supplements.
The Tribunal also notes that the Sponsor does not like to take medication. She addressed this in her written evidence, indicating that she had her Thyroid glands removed, one of them at least unnecessarily and as a result of which she has little faith in the medical profession and prefers alternative therapies. This matter has not adversely affected the Tribunal’s decision.
It notes the applicant’s claim that the Covid 19 issues in the Philippines make it risky to travel to the Philippines and the Sponsor’s Mother’s claimed Medical issues
The Sponsor has an 85 year old elderly mother who has a number of medical issues. Several discharge summaries dated in 2020 were submitted to the Tribunal indicating a past history of her conditions which have now been the subject of the Aged Care support reports (ACAT) the last one submitted to the Tribunal, dated 23 December 2020. She receives medical treatment when required and the Sponsor who is her daughter is onshore to assist and support her. In addition, the report submitted indicates that she also has grandchildren in Sydney who are also involved in supporting her, noting that the sponsor works and has family commitments. There was no mention of the applicant in the report. The discharge summary indicates that the mother was discharged with no plans for surgery and with Paracetamol treatment. The statutory declaration dated 24 April 2021 (paragraph 47), indicates that the mother’s back pain is now manageable.

The Tribunal notes from the discharge reports that the sponsor’s mother qualifies for assessment for an Australian Government aged care package Level 3 and Residential Respite High Care and Residential Permanent support plan. The sponsor is nominated as her Guardian as from 18 December 2020. Under the plan, the written evidence indicates that the mother can access services including but not limited to Residential Care, therapy and allied services, domestic assistance, social support, nursing and transport. The sponsor helps her with showering on Weekend days. The mother mobilises inside with her 4 wheel walker (4WW). The report indicates that the mother’s back pain is managed with prescription analgesia. She needs assistance getting in and out of the car. She does not go out much due to pain and limited mobility. She also accesses podiatry at home or the sponsor attends to it. She receives some assistance with domestic, laundry and linen change. The sponsor reported to the ACAT assessors that she has no concerns about her mother’s memory. The mother is recommended by ACAT for assessment for a home care package level 3 and eligibility for residential Respite (High Care) and Permanent Care (see ACAT Assessment Report Support Plan dated 23 December 2020).
The parties have travel plans together and will be absent from New South Wales. It follows that the sponsor’s mother would need to have supports other than the parties to call upon if she needs them such as those referred to above.
On the basis of the evidence before it, the Tribunal is not persuaded that the applicant is required to provide support to the sponsor’s mother given the other supports outlined and the evidence relating to the parties’ travel plans after their marriage. The Tribunal is therefore not persuaded that this amounts to a compelling reason for the applicant to remain onshore whilst she makes her partner application offshore.
In her 2021 statutory declaration, the applicant states that if the sponsor became depressed, that if she lost her job she would have difficulty relying on Centrelink due to her overheads such as her mortgage. The evidence before the Tribunal indicates that the sponsor received past Centrelink payments when she was out of work and managed financially. At the date of decision, the Tribunal considers that these issues raised by the applicant are speculative.
SPOUSE/DE FACTO (cl.820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl.820.221)
Whether the parties are in a spouse relationship
Clause.820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.
The Tribunal has decided to confine its findings to the date of decision. At the date of decision the parties are validly married and are therefore normally considered to be spouses. The Tribunal must therefore address whether they meet the requirements of Section 5F of the Act and regulation.1.15A. at the date of decision.
Spouse’ is defined in s.5F of the Act and provides that the two persons are spouses if they are in a married relationship whether the relationship is one of same sex or different sex. At the date of decision, the parties claim to be in a married relationship and are therefore not considered to be in a defacto relationship.
·if claiming a spouse relationship, persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act
·there must be a mutual commitment to a shared life to the exclusion of all others,
·the relationship must be genuine and continuing, and
·the couple must live together, or not live separately and apart on a permanent basis:
In forming an opinion whether they are in a spouse relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3) which are attached to this decision. Each of the specific matters contained in the regulation are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
The applicant and the sponsor (the parties) married on 15 May 2021 (copy Australian registered marriage certificate provided). They meet the requirements of a married relationship but not a de facto relationship at the date of decision. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Are the other requirements for a spouse relationship met? In determining this, the Tribunal must consider and make findings in relation to each matter in r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2).
Regulation 1.15A (3)
(a)The financial aspects of the relationship – including:
joint ownership of assets;
othe parties have a joint bank account which they use for travel funds and to which they both contribute
oeach party has a separate bank account
othe sponsor owns two properties in her name including the property in which the parties reside over which there is a mortgage in the sponsor’s name.
othe evidence before the Tribunal did not indicate any joint liabilities and showed utilities and outgoings in the sponsor’s name.
extent of pooling of financial resources
o   both parties contribute to the parties’ finances but the sponsor has responsibility for all utilities & outgoings.
o   the applicant stated that she voluntarily contributes to the mortgage payments which payments appear in the bank account.
o   the parties pool some resources but, the visa applicant’s pay goes into her bank account and that of the sponsor goes into the sponsor’s bank account.
any legal obligations owed to the other party;
othe sponsor has a Will dated 29 October 2017 which shows the applicant as one of her beneficiaries. Similarly the sponsor’s superannuation beneficiary statement includes the applicant. The Tribunal is mindful that a Will can be revoked or changed at any time including by marriage and that the superannuation arrangements can also be changed. They are therefore indicative of intention at the date of execution of the documents.
oother than legal obligations required by law, there is no other evidence relating to legal obligations before the Tribunal.
any sharing of day-to-day household expenses.
oThe parties appear to share food expenses but as previously indicated, the outgoings & utilities accounts are in the sponsor’s name.
·(b) The nature of the household – including:
ojoint responsibility for care and support of children: there is no evidence before the Tribunal that there are children.
oparties’ living arrangements: the parties live together except when they travel separately.
oany sharing of housework: the parties stated that they share housework however the sponsor’s evidence relating to her health, if accurate, would indicate that the applicant would attend to this.
·(c) The social aspects of the relationship – including
owhether parties represent themselves to other people as being in a married relationship with each other;
othe opinion of friends and acquaintances about the nature of the relationship; and
oany basis on which the persons plan and undertake joint social activities.
On the basis of the cumulative evidence provided through greeting cards, photographs, statements from the Sponsor’s mother and other persons indicating their support of the relationship including mutual friends of the parties, the Tribunal is satisfied that the parties satisfy each of these three criteria and therefore satisfy the social aspects of the relationship.
·(d) The Nature of persons’ commitment to each other – including
oduration of the relationship; - in her statutory declaration in 2021 the applicant stated that on 12 May 2014 she and the sponsor officially became a couple and made a commitment to their relationship;
othe length of time they have lived together; - the parties claim to have lived together since 12 May 2014.
othe degree of companionship and emotional support they draw from each other;
§ the visa applicant indicated in her written and oral evidence that the sponsor supports her emotionally especially during the difficult times in relation to obtaining the Partner visa.
§ the sponsor outlines her health issues and those of her mother and states that she is reliant on the applicant’s support in relation to her depressive episodes from time to time and she states that the applicant helps with the sponsor’s mother by cooking, visits and care.
As previously mentioned the Tribunal notes that the applicant is not referred to in any of the medical or ACAT reports relating to the mother which mention the sponsor’s support and the mother’s grandchildren only.
owhether they see the relationship as long-term.
§ the evidence provided includes numerous written communications including greeting cards between the parties spanning from 1987-2018 expressing their close friendship, love and devotion to each other over time. They expressed these sentiments orally at the hearing.
§ the parties gave evidence at the hearing that they see the relationship as long term. Since the hearing, the parties have married.
·     Any other circumstances of the relationship.
oThere is evidence before the Tribunal of the parties’ past and future travel plans and their marriage on 15 May 2021 in Australia. The plans which they had made at the date of hearing are consistent with their current future plans.
·     Whether the parties are related by family.
oThe parties are not related by family.
The Tribunal finds that the parties have a mutual commitment to shared life to the exclusion of others; have a genuine and continuing relationship; and live together and not separately and apart on a permanent basis and are not related by family (s.5CB(2)(a)-(c)) at the date of decision.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision.
Therefore the applicant meets the requirements of cl.820.221(1)(a) and 820.221 at the date of decision.
The Tribunal finds that there is a valid sponsorship under the legislation, the applicant did not hold a substantive visa at the date of decision, the applicant meets the requirements of cl.820.221(1)(a) at the date of decision.
CONCLUSION
Much of the evidence indicates a genuine commitment, love and mutual dependence which may indicate a genuine relationship between the parties. Policy which has been considered indicates that the legislation does not consider a genuine relationship as a compelling reason not to apply the Schedule 3 criteria to the visa applicant. Policy however is a guide and not binding on the Tribunal.
The Tribunal recognises that the parties are in a genuine and committed spouse relationship at the date of decision and finds this to be a compelling reason to waive the Schedule 3 criteria.
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 sch.2 to the Regulations.
C. Morfuni
Member
ATTATCHMENT - 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 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.

[2021] AATA 2825

30 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal