Tran (Migration)

[2023] AATA 3869

Tran (Migration) [2023] AATA 3869 (24 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Hai Yen Tran

REPRESENTATIVE:  Dr Anthony Robinson (MARN: 0003574)

CASE NUMBER:  2116968

HOME AFFAIRS REFERENCE(S):          BCC2018/4457046

MEMBER:Cheryl Cartwright

DATE:24 July 2023

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 24 July 2023 at 3:14pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – Australian citizen child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 (Cth) (the Act).

2. The applicant applied for the visa on 12 October 2018 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(d)(ii) because the applicant did not meet Schedule 3 criterion 3001. The applicant’s last substantive visa ceased on 30 August 2017. The applicant had ceased to hold a substantive visa more than 28 days prior to lodging the application for the Partner (Temporary) (Class UK) visa.

4. On 13 November 2021 the application was refused by a delegate of the Minister. On 18 November 2021 the applicant applied to the Tribunal for review of the refusal decision. Upon reviewing the submissions and further evidence, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets cl 820.211(2)(d)(ii) which requires that the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

7. 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).

8. 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

9. 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.

10. The applicant arrived in Australia on 9 July 2013 on a student visa (subclass 573). That visa ceased on 30 August 2017. The application for a partner visa was lodged on 12 October 2018 and the applicant was granted a bridging visa C.

11. As the applicant’s last substantive visa ceased on 30 August 2017 the applicant did not hold a substantive visa at the time the application for a partner visa (subclass 820/801) was made. The application for a partner visa was not made with 28 days of the ‘relevant day’, having regard to the definitions of that term in criterion 3001(2).

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

    Compelling reasons

13. 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.

14. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

15. In an undated joint statement by the parties, received by the Tribunal on 17 July 2023, the parties outlined the progress of their relationship. According to that statement the parties met in June 2017 and began a relationship later that year.

16. The sponsor was granted Australian citizenship on 20 March 2019. The parties were married in Beaumaris on 19 December 2020.

17. The parties have jointly purchased an investment property. The parties provided a number of photographs of themselves with family and friends in a range of locations and at a range of social events from 2017 through to 2023.

18. The parties’ son was born on 19 May 2022. A copy of the birth certificate is on the Tribunal’s file.

19. The Tribunal notes the parties’ commitment to a long-term spousal relationship and raising a family together in Australia. The Tribunal considers that the parties having a son who is an Australian citizen provides a compelling reason to waive the Schedule 3 criterion 3001 requirement.

20. 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).

21. 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.

    Are the parties validly married?

22. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

23. The parties were married in Beaumaris on 19 December 2020. A copy of the marriage certificate is on the Tribunal’s file. The Tribunal is satisfied the parties are 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?

24. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

25. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

26. The parties claim to have purchased an investment property together but have provided only photographic evidence of this. There is no evidence that one person in the relationship owes any legal obligation in respect of the other.

27. The parties provided a number of utilities invoices and a car insurance invoice in both names and a copy of a bank statement in joint names that shows some household purchases.

28. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

29. The parties provided a number of dated and labelled photographs from 2017 through to 2023 in a range of locations and at a range of events with friends and family, including at their wedding and including both sets of parents. In the undated joint statement, mentioned above, the parties provided detailed descriptions of their travels in Australia with family and friends, and a visit to Vietnam together.

30. In a statutory declaration dated 18 July 2023 and provided after the hearing, Hung Anh Pham states that the parties jointly contribute to their local community and greatly care for each other and their child.

31. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

32. The parties have a son born on 19 May 2022. They also have two dogs and in the undated joint statement mentioned above they state that they have moved from an apartment in Carnegie to a house in Hampton East in order to have more room for family and friends to visit.

33. In a further joint statement, undated and provided to the Tribunal on 21 July 2023, the parties state that the sponsor often takes care of their child during the events so the applicant can rest. He also takes care of cleaning and gardening. The applicant manages the purchases and organsation of household items.

34. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

35. The parties were married in December 2020. The Tribunal gives some weight to the length of time the parties have been together. In the undated joint statement received on 17 July 2023 and mentioned above, the parties describe in detail their meeting in 2017 and the development of their relationship, their engagement and wedding in 2020 and the birth of their son in 2022. They describe their plans for a long-term spousal relationship.

    Conclusion

36. As mentioned above, 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).

37. 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

38. 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

    Cheryl Cartwright
    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.