Tatu (Migration)

Tatu (Migration) [2021] AATA 974 (12 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sitiveni Paea I Muli Tatu
CASE NUMBER:  1917935
HOME AFFAIRS REFERENCE(S):          BCC2017/4992762
MEMBER:Justin Meyer
DATE:12 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 12 March 2021 at 7:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – long period as unlawful non-citizen – unlawful status because of carelessness, not manipulation of circumstances – long relationship and valid marriage – applicant’s physical health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, criterion 3001(2)

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 applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video using Microsoft Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by video, and confirmed their ability to do so. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant applied for the visa on 29 December 2017 on the basis of his relationship with his 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 (Cth) (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 they 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 1 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Eniselina Tatu, the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
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 are there compelling reasons for not applying those criteria?
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.
Departmental records indicate the applicant’s migration history is as follows:
·26 May 1993: first arrived in Australia as the holder of a Visitor-Tourist (subclass 674) visa, valid until 26 July 1993
·29 December 2017: lodged an onshore application for a combined Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa, subsequently granted a Bridging A (subclass 010) visa in association with this application
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
The parties submitted the following to the department:
·The applicant plays a vital role in the well-being of the family, socially and economically spiritually and providing moral support. This includes bringing up the sponsor’s children from a previous relationship. Being separated from the children would be disastrous.
·The parties knew each other in Tonga. They met again in 2011. They married in 2014. They have lived together ever since. He is a good father to the sponsor’s children. They submitted joint bank accounts and utilities bills.
·There were witness statements of the parties testifying to the genuineness of the relationship, and the care that the applicant provides for the sponsor’s children and his role in the community, including the church.
·The parties are always working together and helping each other, showing up together on different occasions e.g. at church and parties. The sponsor has two jobs and is busy during the week. The applicant is fully responsible for home duties, looking after the children and transporting.
·Numerous photographs of the parties in various social and domestic scenes were provided.
·Confirmation that the sponsor’s son that (year of birth 2010) has been enrolled at school from 30 January 2015 to date.
·Confirmation that the sponsor is employed by a community staffing solutions company and has been employed as a casual disability support worker for various clients since March 2017.
·Testimonials from a co-worker and a local church as to the genuineness of the parties, to quote: “Mr. Tatu has the capacity and potential to contribute to this country in so many ways. He is a humble, loving and trust-worthy member of our community. His dedication and willingness to embrace his role as husband and father to his family have been known to all of us. I have seen Mr. Tatu myself helping his wife arranging and delivering flowers to funerals, Church services and other special occasions out of love and commitments. They have reached out and touched so many people in our community through their very simple acts of love. We are indeed need more people like Mr. Tatu in our community.” Rev. Valamotu Palu, Minister - Tonga Parish of the Uniting Church, 29 August 2017.
·The sponsor’s family’s declaration that the applicant has taken care of the family and makes sure that “we are fed, healthy and safe. Sitiveni called us sons and daughter and we called him our dad. He is a hard-working man as he always make sure there is food on the table for us. Our mum works two jobs and Sitiveni would do everything for us at home. He cooked our meals, dropped and picked up us from school. Sitiveni is our great inspiration and he has a lot of positive input in nurturing and shaping us up to become who we are now. We are blessed to have him in our life to motivate, care and purposely a father for us. With good faith, we are seeking your good hearts in allowing our father to remain with us as we need him for, great future.”
The parties submitted the following to the Tribunal in writing and in the hearing:
The sponsor is disability support worker. The family could not operate without the applicant’s care for the family home. The sponsor’s ex-husband confirmed that the applicant took over all care of his children and he is a great role model.
The applicant said that he arrived in Australia in 1993 with his former wife. He was happy to remain as he was seeking a better life for his family. From 2006 he was living in Australia without a visa. He said this was because he ‘lost contact’. He said in 1998 he travelled to Tonga. He lost contact with the person handling the case. He said he heard nothing more.
I asked the applicant why he made an application for this partner visa in 2017. He said this was lodged by his current wife who is an Australian. His wife was concerned about the situation. He met her in 2011. The parties married in 2014.
In response to what was compelling about the present situation, the applicant said that he wanted to stay with the one he loved and with his family. He said the parties lived together with the stepchildren. He said the stepchildren were aged 24, 19, and 11. They are from his wife’s previous relationship. Their father is not involved in the children’s life. The 24-year-old is working. The 19-year-old has finished school and is at home and is not working or studying. The 11-year-old is at school.
The applicant said he was not working although he had worked in the past as a truck driver.
It was estimated that the sponsor’s income was approximately $102,000 per annum. There was a lot of hard work involved. The parties rent their home. It is a four bedroom house. They pay $570 per week. The parties do not own any other property and they do not have savings of any note.
The sponsor described her husband’s health as follows: he had a heart problem in the past and received hospital treatment, and following specialist treatment he was now in good health. He followed his instructions and would be on medication for the rest of his life. The heart problem was an irregular heartbeat or a lack of the pumping function of the heart.
The sponsor herself that she was fine and said that her psychological and mental health was good except for the fact that she was stressed and the family was only receiving her income.
The sponsor needs to work eight to ten hours a da in order to provide for the family. She said the situation was ‘out of control’. She discussed the first meeting of the parties and agreement to marry. The applicant loved her children she said. She said that it was not a marriage for a visa. She tried to convince her husband to do the right thing. She went to work. The parties always go to church.
It was stated in evidence that if the applicant had to go offshore the parties will have no choice and the applicant would have to do so. They would be waiting for the result. It will cost a lot of money. A lot of money has already been lost in the visa process. There will be accommodation problems for the applicant if he went offshore to Tonga.
The sponsor said she thought she was being punished for her past. The parties would be forced to be separated. She said there would be problems and temptations and broken dreams. She did not want to be separated. The children have to be left with the sponsor. The sponsor said she feared a broken family.
The applicant said that he made lunch for the little one. He made have breakfast and the housework. The 24-year-old stepson is working. The 19-year-old is looking for a job. They do tidy up the house when asked and they cooperate as a family.
I asked the applicant whether if he had to go back to Tonga to apply, noting that there might be at least one or two year wait for a successful offshore application, could family visit him or join him. He said he did not think so. She said his wife was working to pay the migration fees. He said that she was the breadwinner. The applicant said that there was high unemployment in Tonga and he felt he could not find a job. He has family over there in the form of one sister and brothers and a mother who is 87.
The 24-year-old stepson does pay rent when he can help.
The parties confirmed that they lived in a close community and people prayed for them and helped them. The applicant said that from time to time people help a little in the way of extra groceries or other help. The parties that they had planned to buy their own home one day.
The sponsor said that everything is limited for the family, and they are aiming to achieve things that have taken a long time for them. The sponsor said she had difficulty achieving her goal would be a long time before a decision has to be made while the applicant was offshore. The parties ages are older, the applicant being born in 1961. They added that it would cost a lot if the applicant had to go offshore.
Evaluation
There is nothing that has been presented to the Tribunal that would set the parties aside from others who live together, who are hard workers. The sponsor in paid employment with children in the household as a family. I find that the sponsor has had employment in the past and continues to do so. Her income is a medium income and I find that she is capable of making such an income to continue supporting her family arrangements. Lifestyle adjustments might be challenging but not so powerful as to amount to compelling circumstances. The logical possibility of support from family or the community was not discussed in detail by the parties, but it appears to be present to a certain extent from their evidence. I am left with an impression of a difficult financial set of circumstances but not compelling ones. I find that this would be a ‘making-do’ financial situation for the parties.
I note that the 24 year-old is a worker and pays rent. This is an additional supplement to income which would help in dealing with financial pressures
The 19 year-old is relatively independent and is a job seeker and may well find a job and similarly contribute in the near future.
The 11 year-old is more in need of care but would be at school for a long portion of the day, and family and fiends might well be able to assist in caring for him when he is home. I note that there are other children at home who might help look after their sibling, while the mother is at work.
The parties are in relatively good health albeit stressed. I am not aware of psychological or health issues that form a compelling circumstances here.
The applicant had concerns about finding work in Tonga, but I note that he presently does not have work in Australia either and this would not detract from household income, and the family appears to function adequately at present. The applicant has family and potential support in Tonga. If he could not work there does not appear to be a reason why family could not take him in for a period. If he overcomes the obstacle of high unemployment in Tonga he might be able to support himself. The World Bank’s most recent unemployment figure for Tonga is around 3.1% (2018)[1], which to the Tribunal does not appear unduly concerning. No evidence was submitted that the position has changed significantly in recent times. Although Tongan tourist operators have struggled, this is offset with government packages to stimulate the economy.[2]
[1] Unemployment, total (% of total labor force) (national estimate) - Tonga | Data (worldbank.org)
[2] Pacific Island Countries Economies Decline In 2020, matangitonga.to , January 21, 2021 (accessed 11 August 2021)
I am left with an impression of a difficult set of potential circumstances if the applicant departed Australia for a period, but not one that moves me to find this to be compelling. Even bearing in mind the Covid19 pandemic and the difficulty in visiting, I note that Tonga has not been a hotspot.[3]
[3] Ibid
The Tribunal bears in mind that the parties’ relationship and marriage is of several years standing and they have been in a relationship for the better part of a decade. However this in and of itself still does not lead me to find there to be compelling circumstances here. My consideration of his evidence is from the period of the visa application to the present decision.
Although it is not making findings on the genuineness of the relationship, on the face of the matter there is nothing that concerns the Tribunal about the bona fides of the parties.
The Tribunal found the parties’ evidence to be genuine and heartfelt, but concludes that the circumstances are not compelling in this case. Theirs are challenging factors but not compelling. I find them to be normal, typical family strains.
The reasons the applicant gave for not being the holder of a substantive visa, were not factors that moved the Tribunal and there appeared to be a lack of due care and attention given to remaining lawfully in Australia. The applicant did not manipulate his circumstances to give rise to compelling reasons but a careless approach to maintaining lawfulness in Australia does not advance his case either.
The Tribunal is 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. I have considered alternative criteria in cl.820.211(5) – (9) and established that they are not claimed or met.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Justin Meyer
Member

ATTACHMENT - Extract from Migration Regulations 1994
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.

(accessed 11 March 2021)

[2021] AATA 974

12 March 2021

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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