Verma (Migration)

[2020] AATA 4542

Verma (Migration) [2020] AATA 4542 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907647

MEMBER:Roger Maguire

DATE:5 August 2020

PLACE OF DECISION:  Brisbane

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) of Schedule 2 to the Regulations

Statement made on 05 August 2020 at 11:04am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at time of application – compelling reasons to waive Schedule 3 criteria – family health issues and bereavement – impact of COVID 19 on travel to India – family’s practical reliance upon the applicant – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 3

CASES

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 applied for the visa on 29 September 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 (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)(i) or cl.820.211(2)(d)(ii) and the circumstances did not justify a waiver of Schedule 3 criteria.

4. On 13 July 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under Schedule 3 and cl.820.211(2)(d) of the Act. Following the grant of an extension of time to respond to the invitation, on 28 July 2020 the Tribunal received material including, but not limited to, written statements of the applicant, the applicant’s wife, mother in law and father in law, medical certificate for applicant’s wife, medical report of the applicant’s mother and father in law, death certificate of [the applicant’s cousin], marriage certificate, evidence of travel, tenancy agreement, photographs and a written submission. All submitted material has been duly considered by the Tribunal.

5. The applicant appeared before the Tribunal on 4 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [name], the applicant’s mother in law, and her husband [Mr A].

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies Schedule 3 criteria, and if not, whether there are compelling reasons for not applying those criteria.

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

9. 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).

10. 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

11. 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.

12. Evidence before the Tribunal establishes that the applicant’s last substantive visa ceased on 15 March 2017, and that the present visa application was made on 29 September 2017. The Tribunal finds that the present visa application was therefore not made within 28 days of the relevant day.

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

    Compelling reasons

14. 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.

15. 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.

16. The Regulations do not define “compelling reasons”, and neither do they provide examples of what might amount to “compelling reasons.”

17. Examples of what might constitute “compelling reasons are offered in the Explanatory Statement to Statutory Rules 1996, No. 75:

    Clause 10 - Schedule 2, Part 820 (Spouse)

    Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

    It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:

    -        where there are Australian-citizen children from the relationship; or

    -       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.

18. The applicant initially arrived in Australia [in] November 2013 as the holder of a [Student] visa that was valid until 15 March 2017.

19. On 9 October 2017, his education provider cancelled his enrolment as he had not commenced his studies.

20. The applicant applied for a [further Student] visa on 8 March 2017, and was granted a Bridging (subclass WA – 010) visa in association with that application. This application was refused on 19 June 2017 as the applicant was not enrolled in a Higher Education course between 4 March 2015 and 15 March 2017 and he was in breach of condition 8516 of his last Student visa and was not considered to be a genuine applicant.

21. The applicant sought the review of the refused student visa application with the Administrative Appeals Tribunal (AAT) on 7 July 2017. He subsequently applied for a Partner (subclass 820/801) visa on 29 September 2017 and was granted a Bridging (subclass WC – 030) visa in association with this application. On 19 March 2019 the applicant was granted a 2^nd Bridging (subclass WC – 030) visa with permission to work.

22. On 13 March 2019 the applicant withdrew his application for review of the refused student visa from the AAT.

23. It is now some two years and ten months since the present visa application was made.

24. The parties met in April 2017, and the applicant proposed to the sponsor in May 2017, and they became engaged on 23 June 2017, and were married [in] August 2017, and commenced living with the sponsor’s parents, and continue to do so as at the date of hearing.

25. The Tribunal accepts that the parties are in a long term relationship, and have developed emotional ties.

26. The Tribunal accepts that the applicant has been a source of emotional support to the sponsor, and indeed to her parents during periods of their respective illnesses, and to the sponsor’s late aunt during her final days.

27. The Tribunal accepts that the sponsors father’s health was heavily impacted by [medical incidents], and that the applicant assists with the performance of household chores, and caring for both his parents-in-law.

28. The Tribunal has also had regard for a letter dated 29 January 2019 from [a named] Psychologist advising of 8 therapy sessions between October 2017 and March 2018 [the] sponsor who initially presented with symptoms of anxiety and emotional dysregulation. The Tribunal has also had regard for a GP Mental Health Plan issued by [a named doctor] on 23 October 2017. The Tribunal has also had regard for the death certificate of [name] who passed away [in] April 2020 from [an illness], and whom the applicant describes as his cousin brother.

29. The Tribunal has also had regard for statutory declarations by each of the applicant’s parents.

30. The applicant told the Tribunal that there would be a great deal of stress for his wife if her were required to apply from offshore, and that after he married his life had changed. He is working as an [occupation], and his life is flexible and he is able to devote time to his family. The applicant said his wife is very stressed and his mother in law was hospitalised for a period of three months in 2018. He is concerned that he cannot build a strong relationship from India and they cannot live without each other.

31. The applicant said that it would be hard for his wife living by herself and she would not sleep properly. He said his wife is not on any treatment or medication at the moment. He is the only person in the household with a driver’s licence.

32. The applicant thought it would be too stressful for his wife to accompany him to India, and she does not speak the language, and it would be hard for her to leave her parents.

33. The sponsor gave evidence that she was concerned at the prospect of separation and the emotional impact it will have on her and her family and nephews and nieces. She told the Tribunal that her husband is a big help with her family. Her parents are both undergoing adverse health changes. Her father is soon to commence chemotherapy or radiation for [cancer]. He also has [other health issues] and the applicant drives him to that. Her parents are both receiving benefits. The applicant is a big help taking her parents to medical appointments on a regular basis.

34. The sponsor told the Tribunal that the most serious consequence she would have to endure if her husband had to leave the country and her main concern is that he won’t be here and her family also rely on him a lot and her parents are very sick. There’s a lot of things she cannot do to support them without his support. She has to go to work and she does not drive. He is a big help financially and they are trying to start a family.

35. The sponsor’s mother gave evidence and spoke very warmly of the applicant, and his helpful nature, particularly when she was in hospital he was invaluable. He has assisted by taking her to medical appointments and helping around the house and shopping. She said it would be a great loss were he to depart. She lost her own son a couple of years ago, and were he to depart that would be very hard as well.

36. The sponsor’s father, [Mr A] gave evidence and told the Tribunal, that he is on a  carer’s pension in respect of his wife, who is on a disability support pension, and that he is  at the stage where he needs a carer himself. In the last ten months he has had [medical incidents].  He has had [cancer] treated and he now has to undergo radiation treatment. He needs the applicant in Australia to provide continuing care for he and his wife. [Mr A] told the Tribunal that he also suffers bursitis in his left shoulder, and cannot lift his hand above shoulder height. In consequence, the applicant does all of the heavy lifting around the house and also does most of the maintenance on the property where they stay. The applicant is the only one who can driver he and his wife to their respective medical appointments. The applicant does most of the shopping, laundry and domestic duties. [Mr A] said that he presently can drive independently but he expects to have to forfeit his driver’s licence soon owing to medical conditions. The applicant also cares for [Mr A’s] grandchildren regularly on weekends.

37. [Mr A] stated emphatically that they need the applicant to help hold everyone in the family together through their health and emotional problems.

38. [Mr A] and the sponsor both expressed concern about the applicant’s exposure to the covid-19 virus should he have to return to India, and the sponsor expressed concern that she may never see the applicant again should he be required to return to India.

39. The applicant has now lived with his wife and in laws for nearly three years, and has clearly developed strong emotional bonds. The present visa application has now been on foot for almost three years. During this time the sponsor has become financially dependent to some degree on the applicant, and the applicant has played a very supportive and wide ranging pivotal role in the welfare of all members of the household. The Tribunal gives weight to these factors.

40. The Tribunal accepts that the current Covid-19 pandemic is impacting in India. The Tribunal acknowledges the sponsor’s concern that were the applicant required to return to India, he would be leaving a very safe environment to return to one which is not. The Tribunal gives some weight to this.

41. Given the totality of the circumstances of this case, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria.

42. 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).

43. 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

44. 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) of Schedule 2 to the Regulations

    Roger Maguire
    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.