Thota (Migration)

[2020] AATA 4222

Thota (Migration) [2020] AATA 4222 (13 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amruta Babu Thota

CASE NUMBER:  1910477

HOME AFFAIRS REFERENCE(S):          BCC2018/1151996

MEMBER:Steven Griffiths

DATE:13 August 2020

PLACE OF DECISION:  Adelaide

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 13 August 2020 at 11:47am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – oral evidence of the sponsor’s son and daughter-in-law – soul mate of the sponsor – relationship of trust and mutual support – supports sponsor in dealing with physical and mental health issues – impact of emotional hardship if separated from the applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 (the Act).

2. The applicant, Mr. Amruta Babu Thota, applied for the visa on 11 March 2018 on the basis of his relationship with his sponsor, Mrs. Candelaria De Carmen Mendoza Thota. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 of Schedule 2 to the Regulations because the delegate was not satisfied that there were compelling reasons to waive the Schedule 3 requirement and that criterion 820.211(2)(d)(ii) was not met.

4. The applicant appeared before the Tribunal on 12 August 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, her son and daughter-in-law.  

5. The registered migration agent of the applicant did not take part in the hearing.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. 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 Microsoft Teams Video. No concerns were raised by the parties on holding a Microsoft Teams Video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.     

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant prior the hearing and the oral evidence from the Tribunal hearing.

   ISSUE

9. The issue in the present case is whether the visa applicant meets compelling reasons for the consideration of a Partner visa application.

   BACKGROUND OF THE EVIDENCE

10. Mr. Thota was born in India in 1986. His parents, born 1959 & 1963, and a sister and brother, born 1984 & 1990, live in India. He arrived in Australia on 28/2/09 on a Student 573 Visa to cease 15/3/11. He was granted a Graduate 485 Visa on 11/4/12 and to cease 11/10/13. He was granted a Student 572 Visa on 14/10/13 and to cease 5/12/14 and has been on Bridging Visas from that time.

11. Ms. Mendoza was born in El Salvador in 1975. Her parents, born 1958 & 1957, and three sisters and a brother all live in Australia with another sister living in El Salvador. She has a relationship in 1991 & 1992 from which she has a son, born October 1992, who lives in Australia. She arrived in Australia on 18 June 1992 and became an Australian Citizen by grant 24/7/96.

    INFORMATION TO THE TRIBUNAL

12. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Parties joint name home rental agreement, January 2020

    Applicant Schedule 3 Criteria statement, 15/7/20

    Parties joint names car registration, June 2020

    Parties joint names bank account statements, 31/12/19 to 30/6/20

    Applicant bank account statement, 3/1/20 to 2/4/20

    Sponsor electricity and gas accounts, 2020

    Sponsor telephone account, June 2020

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

13. Clauses 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 accepts the documented evidence of the sponsor becoming an Australian Citizen by grant 24/7/96.     

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

14. 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).

15. 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

16. 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.

17. In order to meet Schedule 3 Criterion 3001, the application must have been validly made within 28 days after the relevant day. For the purpose of this application, the last relevant day is the last day the applicant held a substantive visa. The applicant lodged his application on 11 March 2018 and his last substantive visa ceased on 5 December 2014.

18. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

19. 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.

20. 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.

21. The applicant presented documented evidence of his relationship with the sponsor, with the parties meeting in June 2016, the relationship commencing in October 2016 and the parties committing to a shared life together on 1 December 2016. The Tribunal acknowledges the applicant’s claims and has considered the various documents he has provided in support of the claim that the relationship is a genuine one. However, the Tribunal makes no assessment as to the nature of the applicant’s relationship at this stage with the sponsor and has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that relationship for the purposes of this decision.

22. The criteria in cl.820.211(2)(a) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If an applicant does not hold a substantive visa and does not meet the Schedule 3 criteria, the requirement in cl.820.211(2)(d)(ii) to provide compelling reasons for not applying those criteria is in addition to the criteria in cl.820.211(2)(a). Accordingly, simply the fact that the parties are in a genuine and continuing relationship is not of itself a compelling reason for not applying the Schedule 3 criteria as it is already a criteria which must be satisfied in order to meet the criteria in cl.820.211(2)(a). If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying the Schedule 3 criteria and not simply the fact that the parties are in a relationship.

23. The Tribunal is mindful that the Explanatory Statement to Migration Regulations (Amendment) 1996 No. 75, in providing examples of compelling reasons, states:

    Where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).

24. The explanatory statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason for not applying the Schedule 3 criteria, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties had upon each other and other relevant factors must be considered. As it is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.

25. The Tribunal accepts the documented and oral evidence of the parties that the last substantive visa of the applicant ceased 5/12/14.

26. The Tribunal accepts the documented and oral evidence of the applicant that he applied for a Student 572 Visa on 4/12/14, which was refused on 15/1/15.

27. The Tribunal accepts the documented and oral evidence of the applicant that he lodged an application for review of the decision on 3/2/15, with the decision affirmed on 23/2/16.

28. The Tribunal accepts the documented and oral evidence of the applicant that he lodged an application for review with the Federal Circuit Court on 21/3/16, which he withdrew on 26/3/18.

29. The Tribunal accepts the documented, photographic and oral evidence of the parties that they met on 5 March 2015, committed to shared life on 2 June 2016 and married on 28 September 2016 and have lived together from that time and considers the length of the relationship to support a compelling reason for a waiver.

30. The Tribunal accepts the documented and oral evidence of the parties, that they lived in the home of the sponsors parents for the first 6 months from their marriage, and from March 2017 they have lived in a rented home, with the majority of this period also having the son, his partner and their current two, and soon to be three, children living with the parties.

31. The Tribunal accepts the oral evidence of the son of the sponsor that he did not have a father figure in his life, with the sponsor totally committing herself to raising him and as a result not having a partner in her life until the sponsor told him she was in love with the applicant and was going to marry him, and from the time of meeting the applicant has accepted him as being the soul mate of his mother and has been in complete support of the relationship and marriage and considers this to support a compelling reason for a waiver.

32. The Tribunal accepts the oral evidence of the son and daughter-in-law of the sponsor that they consider the applicant to be the grandfather of their children, and they share a close relationship of trust and mutual support with the applicant and considers this to support a compelling reason for a waiver.   

33. The Tribunal accepts the oral evidence of the parties that the sponsor, with the help of her son, borrowed funds from a bank to pay for the Partner Visa application and migration agent support as they wanted to do all they could for the applicant to remain in Australia and continue to be a family and considers this to support a compelling reason for a waiver.

34. The Tribunal accepts the documented and oral evidence of the parties that family is very important to both, with the family of the sponsor exceptionally close and protective of each other, while the siblings of the sponsor embraced the applicant from their first meeting with him and fully support the relationship and marriage of the parties.

35. The Tribunal accepts the oral evidence of the parties that the mother of the sponsor, until her death in November 2018, was a strict person when it came to the activities and relationships of her children, and from the time of first meeting the applicant was supportive of her daughter marrying him.

36. The Tribunal accepts the oral evidence of the parties that they have discussed the possibility of the applicant  being required to leave Australia and an off-shore  Partner Visa application lodged, with the situation distressing to them as while the sponsor wants to physically meet the parents and siblings of the applicant, who she has a good relationship with from regularly telephone and video call contact, she cannot leave her family in Australia for the full period of an application review.

37. The  Tribunal accepts the oral evidence of the parties that with the increasing ill-health and subsequent death of the mother of the sponsor in November 2018, the sponsor has been dealing with physical and mental health issues, with the applicant at all times being supportive, loving and accepting of whatever action or gesture was required to assist the sponsor and considers this to support a compelling reason for a waiver.

38. The Tribunal accepts the oral evidence of the parties that they have discussed the option of having a child, with medical issues and the age of the sponsor factors in if it will happen, and the possibility of adoption.   

39. The Tribunal accepts the oral evidence of the parties, provided independently, that the applicant at all times while living in Australia has complied with the substantive and bridging visa conditions.

40. The Tribunal accepts that it is reasonable to expect a level of emotional hardship and significant risk to the physical health of the sponsor to be experienced if the applicant is separated from the sponsor for any extended period of time. The Tribunal acknowledges that this is a common experience for other people who apply to migrate to Australia from offshore on the basis of their relationship with an Australian citizen or permanent resident. The Tribunal accepts that emotional hardship can be considered a compelling reason for not applying Schedule 3 criteria and the Tribunal determines that the evidence presented by the applicant and the sponsor is sufficient to substantiate the impact of emotional hardship.

41. On evidence the Tribunal is satisfied there are compelling reasons for not applying Schedule 3 criteria as the applicant provides emotional, physical and financial support to his sponsor in Australia and this would be significantly impacted if he was required to leave Australia, develop an income stream, lodge an offshore partner visa application and await a decision.

42. For the above reasons, the applicant satisfies criterion 3004.

43. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

44. 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

45. 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

    Steven Griffiths
    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.