Tanaumporn (Migration)
[2017] AATA 2568
•27 November 2017
Tanaumporn (Migration) [2017] AATA 2568 (27 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Kriangkri Tanaumporn
CASE NUMBER: 1601270
DIBP REFERENCE(S): CLF2013/73935
MEMBER:Justin Meyer
DATE:27 November 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 27 November 2017 at 3:10pm
CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Legally married – Longstanding relationship – Unlawful period of stay – Support from family or the communityLEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 3, cl 820.211(2)(d)CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision of a delegate of the Minister for Immigration on 24 February 2014 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 5 April 2013 on the basis of his relationship with his sponsor. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy 820.211(2)(d)(ii). The delegate stated that he had considered the circumstances relevant to the application and concluded that they were not compelling to waive the Schedule 3 requirements.
The applicant appeared before the Tribunal on 4 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence Hnin Hnin Kim, who is the applicant's Partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the Tribunal can be satisfied that there are compelling reasons why the Schedule 3 criteria should be waived.
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.
In this case the relevant day is the last day the review applicant held a substantive or criminal justice visa. This day is the day her subclass 676 visa ceased to have effect, 27 June 2010. This application was not lodged until 5 April 2013. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
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. Compelling reasons relate to the hardship that can result if an unlawful non-citizen wishing to remain in Australia on the grounds of his or her spouse or de facto relationship is obliged to leave Australia and apply from overseas. In general, the existence of a genuine relationship between an applicant and their sponsor in and of itself, and their desire not to be separated is not sufficient to establish compelling reasons to waive Schedule 3 requirements. The waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a Partner visa. The waiver was introduced to provide flexibility for the Minister where ‘compelling’ circumstances arise. The Explanatory Statement to Statutory Rules 1996, No. 75 which accompanied the introduction of the provisions gave examples of where a waiver may be justified as: where there are Australian citizen children from the relationship, or the applicant and his or her sponsor were already in a long-standing partner relationship which has been in existence for two years or longer. However, these examples are not part of the legislation itself.
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.
Department policy states that the provisions are not intended to give, or be perceived to give, an unfair advantage to persons who fail to comply with their visa conditions or who deliberately manipulate their circumstances to give rise to compelling reasons. The Tribunal has had regard to policy guidance in the Department’s Procedures Advice Manual which states that the intent of the waiver provisions is to allow persons whose circumstances are genuinely compelling to regularise their status.
The Tribunal is not bound by Department policy. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.
Policy Considerations:
The relevant Departmental policy requires consideration in this case because of the review applicant's migration history.
On 22 October 2008, the applicant first arrived in Australia, on a Tourist (subclass 676) visa. This visa was valid until 19 January 2009. The applicant departed Australia on the date of expiry of that visa. A further Tourist (subclass 676) visa was granted enabling the applicant to return to Australia on 27 June 2010, and this visa ceased on 27 September 2010.
On 27 September 2010 the applicant became an unlawful non-citizen. Approximately two years and seven months later the applicant applied for a UK partner (Temporary) and a BS Partner (Residence) visa, on 5 April 2013, on the grounds of being in spousal relationship with an Australian Permanent Resident.
In 2013 the review applicant was granted a Bridging (subclass 030) visa, and there have been subsequent bridging visas granted to him since that time.
The policy stresses that; …the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:
oFail to comply with their visa conditions or
oDeliberately manipulate their circumstances to give rise to compelling reasons or
oCan leave Australia for a partner visa outside Australia.
The sponsor and the applicant's evidence submitted to the Tribunal and discussed below did not dispel a view that the first and third of the above circumstances accurately describe those of the sponsor and the applicant.
Further relevant policy states that the purpose of the Schedule 3 criteria are three-fold; firstly to encourage persons to apply for a further substantive visa before their existing visa ceases to have effect, secondly to discourage persons from overstaying their visas and thirdly to prevent non-citizens from benefiting by remaining in Australia unlawfully.
The applicant described his coming to Australia for the first time in 2008 under a tourist visa. He returned to his native country three months later. He came back to Australia in 2010. He met the sponsor in January 2012. In his oral evidence he said that the parties began living together in May 2012. By August that year they were legally married in Australia.
I give regard to the fact that this is a long-standing relationship of more than two years.
The sponsor has a young child from a previous relationship and the applicant is involved in the rearing of this child. He helps by taking the child to school. He does some work ‘with friends’ including gardening and weeding.
He was aware of Centrelink payments that go to his wife for the upkeep of the sponsor’s child.
When questioned in the hearing about his unlawful period the applicant provided little meaningful information. He said that he had been made aware of his unlawful status by a lawyer. He stated in the hearing that he did not understand how the process worked. There was little response from the applicant to the proposition put in the hearing that the Australian Government took a ‘dim view’ of persons overstaying their visas. Little reaction was made to the proposition put that a visitor visa is for three months not several years. I find that this was an effort to avoid discussing a matter of common knowledge - that one cannot extend one’s stay in Australia for a long period without permission.
It emerged in evidence that the sponsor is the primary caregiver to her child. The applicant stated the child was ‘with me more’. I consider this response to be an overstatement of his role. This is because the applicant described his responsibilities more in terms of housework. If the applicant were to leave Australia for a period, the consequence was described as a ‘big headache’ where the sponsor would have to give up her strawberry farm work which occupies part of her time. It was added though that she could retain her work cleaning a bank office.
The applicant stated that it would be difficult for the sponsor to visit him in his home country because of the sponsor’s duties in Australia. From this I find that a visit would be possible with a reordering of matters in the sponsor’s life and within the realms of possibility. I find that the potential separations would be inconvenient, but not more than that.
The applicant expressed concern about how the sponsor would get by without him with reduced income and support. He worried about the sponsor’s daughter, and how she needs the applicant. I note though that the applicant described the 8 year-old child as healthy and strong, and doing well at school.
Overall there was a generalised concern but there was not an impression of anything more than inconvenient potential circumstance if the applicant left Australia. The sponsor pointed to a lack of money that might occur if the applicant left. There is evidence on file of a personal loan in 2017 with around AUD34,663 owing to a bank. AUD668 is being paid each month. The sponsor does not own property but her parents overseas do. She had not considered the possibility of support from the church community of which she was a member. She confirmed that she would need to give up her farm job but not her bank cleaning job. Again an unpleasant prospect of making do seemed the potential scenario.
Turning to consideration of the sponsor’s health, the applicant described her as ‘healthy’ but that she needed to watch her blood sugar levels.
Mental health was touched upon in the sense that the immigration process was a worry to her. The applicant said the sponsor was stressed about her ability to pay for things. She had taken a bank loan for her legal fees. A generalised concept of worry and stress was put forward. The sponsor did not talk much and embraced him. The sponsor had been seeing a clinical psychologist, Ms Annie Piper. She was dealing with low mood and occasional sleeplessness. When suicide was raised the applicant instead said that there had been ‘sinful thoughts’. I assess the stress level here as being of a reasonably significant order. On 15 August 2017 Ms Piper wrote to the Tribunal of the sponsor reporting low mood, sadness, restricted nature, sleeplessness, fatigue, anhedonia, negative cognitions and suicidal ideation. The sponsor reported worsened mental health as a result of the migration issues, which impacted negatively on her health, and in particular in managing her diabetes.
I accept that the matters described are of enough concern to the clinical psychologist to write to the Tribunal, and that three sessions had been attended. Nonetheless these are self-reported conditions that have a degree of subjectivity and the emphasis of the applicant was not as strong on these points in his evidence, and there was a milder account on his part. I am left with the impression that there are issues but they are not powerfully informing me of compelling circumstances.
The Tribunal is also satisfied that the sponsor and review applicant were both aware of the unlawful status of the review applicant for all of the period from 2010 (the year of his most recent tourist visa) until the application lodgment in 2013 - a period in excess of two years. In failing to comply with his visa conditions and/or seeking to legalise his migration status, the applicant failed to comply with the law and remained without entitlement. The applicant before meeting the sponsor lived in Australia for a period of years without a visa, and was aware of his status.
Nevertheless the law requires that the Tribunal consider the parties' submitted compelling reasons regardless of the failure to comply with the law. Once considered, the claimed compelling reasons will be evaluated against his unlawful period to determine if they are compelling.
Compelling reasons:
The Tribunal has a submission from the applicant’s representative dated 29 August 2017 which presents reasons, as to why the Schedule 3 criteria should be waived in this case. These reasons stress the emotional ties between the applicant and the sponsor and sponsor’s daughter. Potential psychological and emotional hardship, should there be a separation of the parties, is described.
It was also submitted that there would be a negative impact on the sponsor’s daughter in her formative years if the applicant needed to go offshore.
The sponsor’s financial dependence on the applicant is described – commitments of around AUD18000 per month for rent and servicing of a loan are indicated.
Safety concerns are mentioned if the sponsor went offshore. It was put that overseas (in Thailand), the protections that Australia gives its people are not provided in the applicant’s home country. Physical and emotional hardship would be the result, it is submitted.
It is submitted that the interests of the child should be put first as they would be in a visa cancellation case.
It is further submitted that the applicant is emotionally connected with the sponsor’s child and vice versa, as seen in submitted photographs, child drawings and video. The applicant is said to be very involved in the upbringing of the child.
There is nothing that has been presented to the Tribunal that would set the parties aside from others who live together, one of whom is a hard-worker in paid employment with a young child and partner.
I give regard to this psychological evidence. I accept that the sponsor’s well-being may well be lowered if the applicant had to leave Australia for a period. However I do not have evidence before me of the severity of any mental or physical condition other than more generalised accounts. There are no circumstances in this case, associated with the medical care needs of the sponsor that powerfully drives the Tribunal to a view that the Schedule 3 requirements should be waived.
I consider alternatives where others may be able to support the sponsor with increased time and attention. I note that the sponsor is involved in a church. Conceivably community assistance of this kind might be possible, although the sponsor had not explored this matter. A reduced financial position that might occur if the applicant left Australia for a period is considered. A personal loan and other financial and living costs are given regard to. Yet the sponsor’s parents overseas own property and the logical possibility of support from family or the community was not discussed in detail by the parties. I am left with an impression of a difficult financial set of circumstances but not compelling ones.
It is noted that in the applicant’s evidence the sponsor could indeed reduce hours worked.
Similarly, there is nothing extraordinary about the care needs of the sponsor, or the peace of mind created by the presence of the applicant that powerfully drives the Tribunal to a view that the Schedule 3 requirements should be waived in this case.
I give consideration to the position of the applicant if he were to return to Thailand. I find that visits might be possible from the sponsor. I judge this as being a potentially challenging matter to organise for the sponsor, but not one so powerful as to be compelling circumstances.
There are no Australian citizen children from the relationship. The applicant and his sponsor were already in a long-standing partner relationship which has been in existence for two years or longer. However this in and of itself still does not lead me to find there to be compelling circumstances here. My consideration of her evidence is from the period of the visa application to the present decision.
The Tribunal is therefore not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Justin Meyer
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Remedies
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Natural Justice
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