Willett (Migration)

[2018] AATA 3655

Willett (Migration) [2018] AATA 3655 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amanda Jean Hitchcock Willett

CASE NUMBER:  1704621

DIBP REFERENCE(S):  BCC2016/4262930

MEMBER:Kate Millar

DATE:2 August 2018

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 (Temporary)) visa:

·cl.820.211(2)(d) of Schedule 2 to the Regulations

STATEMENT MADE ON 02 AUGUST 2018 AT 1:39PM

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Did not hold substantive visa – Schedule 3 criteria – Application lodged outside relevant day – Compelling reasons – Applied for another visa due to cost – Inconsistent information – Dates entered into de facto relationship – Duration of marriage – Emotional dependence – Short period without a substantive visa – Close family relationship – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211, Schedule 3 Criteria 3001, 3003, 3004

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. Ms Willett came to Australia from the United States on 16 October 2015 on a working holiday visa.  This visa ceased on 16 October 2016.  On 13 July 2016 she applied for a remaining relative visa, as her mother, adoptive father and two siblings live in Australia.  Her remaining relative visa was refused on 29 November 2016 as her elder adoptive sister lives in the United States. 

2. On 16 December 2016 Ms Willett applied for a Partner (Temporary) (Class UK) and Partner (Residence)(Class BS) visas on the basis of her relationship with Mr Bradley Hall, who is an Australian citizen. They married on 12 May 2017.

3. As Ms Willett’s working holiday visa ceased on 16 October 2016, she did not hold a substantive visa when she applied for the partner visas.   This means she has to meet other specified criteria unless the Minister, and the Tribunal in the place of the Minister, is satisfied there are compelling reasons for not applying those criteria.

4. A delegate of the Minister for Home Affairs was not satisfied that she held a substantive visa at the time she applied, that she met the specified criteria or that there were compelling reasons not to apply the criteria. As a result, the delegate refused her visa applications under s.65 of the Migration Act 1958.

5. Ms Willett has applied for a review of this decision.  She appeared before the Tribunal on 17 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her sponsor, Mr Bradley Hall, her mother Ms Karla Willett, and a friend Ms Erika Hams.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. At the time Ms Willett applied for the visa, 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), and Ms Willett must meet the primary criteria in Part 820 of Schedule 2 to be granted this visa. It is a requirement for the grant of a Subclass 801 visa that the person holds or has held a Subclass 820 visa.

8. 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).

9. It is not in dispute that Ms Willett did not hold a substantive visa at the time of application. As she did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether she satisfies the Schedule 3 criteria or there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

   Does Ms Willett meet the Schedule 3 criteria?

   Criterion 3001

10. 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.

11. As it applies to Ms Willett, this is 28 days after her working holiday visa ceased, which was on 16 October 2016.  As she did not apply for the visa until 16 December 2016, she does not meet the requirements to have applied for the visa within 28 days of her last holding a substantive visa.  As a result, she does not satisfy criterion 3001.

    Criterion 3003

12. Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. Ms Willett was not such a person, and criterion 3003 does not apply to her.

    Criterion 3004

13. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, and that:

    ·     there are compelling reasons for granting the visa, and

    ·     the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant.

    ·     the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive visa;

    ·     the applicant intends to comply with any conditions of the visa; and

    ·     the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

14. In this case, Ms Willett did not hold a substantive visa because her working holiday visa had ceased.  Ms Willett had applied for a remaining relative visa, and states she thought she would be eligible for the remaining relative as her immediate family were all in Australia, and she did not realise her older adoptive sister Michelle would be considered.  Ms Willett said she applied for a remaining relative visa rather than a spouse visa as the cost of a remaining relative visa is significantly less than the cost of a spouse visa.  It is also open to consider that she applied for this visa because she did not think she would meet the requirement for a spouse visa to have been in a defacto relationship for 12 months immediately before applying for the visa. 

15. Choosing to apply for another visa for which you are not qualified due to the cost or a belief about eligibility are not a factors beyond Ms Willett’s control, and she does not meet criterion 3004.

16. There is nothing before me to indicate Ms Willett did not substantially comply with the conditions of her working holiday visa, and she gave evidence of her employment that was consistent with this condition of this visa.  There is also nothing before me to indicate she would not comply with any conditions of the visa.  Her working holiday visa was not subject to a condition that she would not be entitled to the grant of a further entry permit while she was in Australia.  

17. In looking at when she would have been able to be granted the visa on the day she last held a substantive visa, the most pressing question is whether she would meet the requirement to be the spouse or defacto partner of Mr Hall at that time. Ms Willett and Mr Hall met through an internet site Ms Willett accessed before she came to Australia so they she could meet people when she arrived.  Ms Willett said that at the time she applied for the remaining relative visa she and Mr Hall had been together for a year but were not ready for marriage.  She said she met him in person one month after she arrived in Australia, and shortly after they started dating.  She said they started living together in March 2016. 

18. Mr Hall’s statutory declaration included a declaration that that she “moved in fully” at the end of July 2016.

19. Ms Willett said in her statement that accompanied the application for review that she had been in a defacto relationship with Mr hall from October 2015.  At hearing she said this was January 2016, because at that point they were planning vacations and joint events such as her Mr Hall’s mother’s birthday, and she did not see a future without Mr Hall.

20. On being asked if she would have met the requirements for a spouse visa given evidence that she did not apply for a spouse visa earlier because she did not qualify for it, she said that they were committed to each other less than a week after she arrived.  She said she did not have specific dates.

21. Mr Hall said that he regarded them as being in a defacto relationship from October 2015.  This is the date Ms Willett arrived in Australia.  Mr Hall said they had spoken for a few months before she arrived and had started dating, and it was obvious by then that they wanted to be in a long term relationship.  As Ms Willett did not have a job they did not live together.

22. Mr Hall was asked how this was consistent with his previous statutory declaration sworn 12 December 2016 in which he declares:

    Due to the limitation of 12 months for the partner Visa if we were in a defacto relationship and at the time we had not reached this point her only option was the remaining relative visa …

23. Other information provided by Ms Willet was that Ms Willett moved to live with Mr Hall at his mother’s house in July 2016, and that she lived in a share house separately from her parents and Mr Hall from a short period after she arrived in Australia until then.  Ms Willett and Mr Hall have had a joint lease on a property from 25 August 2017.

24. While it remains open to question whether Ms Willett would have been able to be granted the visa if she applied on the day she last held a substantive visa, there are a great deal of factors that would need to be considered in determine if this was the case.  If they were not in a defacto relationship for the required 12 months, there is also an ability to waive this requirement.  The information required to make findings on this is not before me.  As a result, and as I have already found she did not meet criterion 3004, it is not necessary or desirable to make specific findings on whether she would been able to be granted the visa is she had applied on the last day she held a substantive visa. 

    Are there compelling reasons not to apply these criteria?

25. As Ms Willett does not meet the relevant Schedule 3 criteria, the Tribunal is required to consider whether there are compelling reasons for not applying the criteria.

26. 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.

27. Ms Willett’s mother, father and two younger siblings are in Australia.  Her mother and father have recently separated.  Her mother is a registered nurse and works full time for the Australian Red Cross.  Ms Willett said her father has had recent problems with his heart and diabetes, and she does not know if he will get worse.  She does not provide care for her father, and did not have any medical evidence regarding his condition.  She said he has had pain in his chest and has seen a doctor who “wants to keep an eye on it”.  He has not been admitted to hospital in the last 12 months. 

28. Her sister Samantha is nine years old and has been diagnosed with leukaemia.  She has been in remission since she was 18 months old, but Ms Willett says there is a possibility she could relapse.  As Samantha is going into puberty Ms Willett says she needs an older sister to be there for her.  She said that since there had been problems with her visa her sister has had trouble sleeping and is seeing a psychologist at school, but Ms Willett was not sure if this was to do with the separation of her parents, or with Ms Willett potentially having to leave Australia. 

29. Her brother James is eight years old, and she says he needs a younger man such as Mr Hall in his life as her father cannot be as active with James as Mr Hall.

30. Ms Willett says her mother suffers anxiety and depression and sees a doctor regarding this condition.  Ms Willett says her mother contacts her when she is having a hard time with depression, and that she will sometimes look after her siblings for her mother.  Her mother’s depression is not the extent that she cannot continue to work full time.

31. Ms Willett says she also suffers from depression and has been on medication for the last eight years.  She said her entire family suffers depression.  She did not provide any medical evidence, but says she suffers night terrors and that Mr Hall is a huge help. She said she has been through a lot in her life and everything has gone against her.  She said her father committed suicide when she was 12 years old and she struggled in her teenage years as a result.  In the same year her father died, an uncle died, and another uncle has passed away since then.  She said it would place a financial strain on them paying for flights and accommodation.  She believes she is a contributing member of society who has not done anything wrong and has the support of a large number of family members who attended the hearing with her to show their support for her and for Mr Hall. 

32. Ms Willett’s family came to Australia in 2014, and when they left the United States she lived with her grandparents. Ms Willett stated that she had would be homeless with no support if she returned to the United States.  However, it became apparent her grandparents remain in the United States.  On being asked if she could live with her grandparents, Ms Willet said they are not in the United States all year around and do not live in an areas where there are jobs.  She said they have downsized as they are travelling and do not have a bedroom for her.  On being asked how far they had moved from where she previously lived with them, she said it was 30 minutes drive from where she previously lived with them.  Ms Willett’s grandparents loaned her the money for the visa application, and Ms Willet said they would have to borrow money from then again for a new application if this visa application is refused.  

33. Ms Willett is not currently working, however Mr Hall has a job and pays for the household expenses.  He has only recently obtained relatively stable employment and a regular income, and they gave evidence that it was important that he not leave his job and the stability this afforded them. 

34. Ms Willett and Mr Hall stated that if Ms Willett has to leave Australia they would have to find a way to afford for her to go and for Mr Hall to be with her.  She said Mr Halls’ family would be devastated, and it would put strain on the family.  On being asked what sort of strain iot would place on Mr Hall’s family, she said that Mr Hall’s brother is having a hard time and has separated from his fiancée and returned to live with his mother.

35. Ms Willett said she wants to contribute to Australia and become a citizen and that she started applying to become a volunteer when the hearing was scheduled.  Her mother gave evidence that she had assisted with listening to children read at the school her siblings attend. 

36. Ms Willett was not a convincing witness.  The dates from which she says she was in a defacto relationship have changed according to what best suits the application for the visa.  Ms Willett made broad statements that were not true such as there was nothing for her in America, and she has no support networks or accommodation, whereas it became apparent that her grandparents are not only living in the United States, but that she had lived with them prior to coming to Australia, and they had provided financial support when required for example loaning her money for the visa application.  She said they may be willing to loan her money for another visa application. 

37. Mr Hall was also not convincing on the date the relationship commenced, as he has previously given a statutory declaration that was not consistent with his oral evidence at hearing. 

38. However, Ms Willett has now been married for over 12 months, and I accept her evidence about the genuineness of her relationship.  I do not doubt she is emotionally dependent on Mr Hall and that her willingness to overstate her case comes from a genuine desire to remain with Mr Hall. 

39. The period she did not hold a substantive visa is relatively short, with the visa application being made within a months of the relevant period and as soon as the remaining relative visa was refused.  Had there not been such a short period between her substantive visa ceasing and the visa application, I may have taken a different view of this matter.  Her immediate family and all of Mr Hall’s family are in Australia and they have a close relationship with their families.  I accept Ms Willett is closely involved with her siblings’ lives, particularly now that their parents have separated. 

40. While this matter is finely balanced, overall I am satisfied there are compelling reasons not to apply the Schedule 3 criteria. Accordingly, the Ms Willett meets cl.820.211(2)(d)(ii).

41. 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

42. 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 (Temporary)) visa:

    ·cl.820.211(2)(d) of Schedule 2 to the Regulations

    Kate Millar
    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.