1416946 (Migration) [2015] AATA 3598 (6 November 2015)

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DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Ms Anita Devi
CASE NUMBER:	1416946
DIBP REFERENCE:	CLF2014/10654 
MEMBER:	Rosa Gagliardi
DATE:	6 November 2015
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 06 November 2015 at 4:17pm
statement of decision and reasons
application for review
1.  	This is an application for review of a decision of a delegate of the Minister for Immigration on 26 September 2014 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 22 January 2014 on the basis of her relationship with her sponsor. At that time, 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). 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 solely on the basis that the visa applicant did not meet cl.820.211(2)(d)(ii) because she could not satisfy Schedule 3 requirements and the delegate found that there were no compelling reasons not to apply them.
4.  	The applicant appeared before the Tribunal on 6 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Mark Brian O’Neill.
5.  	The applicant was represented in relation to the review by her registered migration agent. 
6.  	For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Consideration of claims and evidence
SCHEDULE 3 CRITERIA (cl.820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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 6 February 2009 on a subclass 771 Transit visa as she had been meant to travel on to Singapore.  At hearing she told the Department that she liked it here, however, and decided to stay.  Her Transit visa, consistent with such short term visas ceased on 9 February 2009.  The applicant remained in the community unlawfully after that for just over five years.  
11.  	From the cessation of her Transit visa subclass 771 the applicant did not approach the Department or make any attempt to regularise her status.  It was only when the visa applicant wished to lodge a Partner visa application and she was granted a Bridging visa C in association with her Partner visa, lodged on 22 January 2014, that the applicant emerged from her unlawful status in the community.
12.  	For the purposes of this application, the relevant day is 9 February 2009 which is the last day on which the visa applicant last held a substantive visa.  Given this Partner visa application was lodged on 22 January 2014 and was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.  This matter is also not in contention.
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, 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]. The compelling reasons for not applying the Schedule 3 criteria must be reasons which are relevant to the purpose of permitting the person to make an application for a spouse visa in Australia: Monakova v MIMA [2006] FMCA 849 at [27]-[28]. The question of whether there are compelling reasons for not applying the Schedule 3 criteria must be considered in relation to circumstances existing at the time of application: Boakye-Danquah v MIMIA (2002) 116 FCR 557 at [39].
15.  	The visa applicant at hearing stated that she met the sponsor in November 2013 and after a month or so of seeing each other they established a relationship.  Even if the Tribunal were to accept that the relationship had an accelerated inception, it could not be said that at the time of application the parties had been in a long-standing relationship, meaning a committed relationship of two years duration. The Tribunal is therefore not satisfied that the Schedule 3 criteria can be waived on the basis of the longevity of the relationship at the time of application.
16.  	The Department had written to the applicant on 3 February 2014, asking the visa applicant to submit any information that pointed to compelling reasons why at the time of application the Schedule 3 criteria should be waived.  The applicant did not respond.
17.  	As part of the application the visa applicant had submitted a marriage certificate indicating that she had married her sponsor on 11 November 2013, without any further evidence of the relationship.  The Tribunal has confined its inquiry to whether at the time of application there were compelling reasons for waiving the Schedule 3 criteria and is not assessing whether the parties meet the requirements of a continuing and genuine relationship as per Regulation 1.15A.  
18.  	Even if the Tribunal were to find, however, that the parties had made a decision to enter into a mutually committed relationship as spouses as defined by s.5F, the Tribunal is not satisfied that this represents compelling reasons for waiving the Schedule 3 criteria.  Given that a genuine relationship is an integral part of all Partner visa applications, and indeed a requirement of the visa, any consequential hardship due to a period of separation does not, of itself, constitute compelling reasons that warrant the waiver of the Schedule 3 criteria at the time of application.  Indeed it would be unusual if two persons who had committed to a life-long partnership did not express some concern about being separated for a period.  
19.  	At hearing the visa applicant stated that she stayed unlawfully in Australia because she liked it here and did not want to return to Fiji.  She stated her parents had passed away and submitted evidence that her father had passed away in 2013 and her mother in 2011.  She also stated that her brother in Fiji had passed away also.  The visa applicant did not have on hand a copy of the death certificate for her brother but the Tribunal is prepared to accept that this is the case.
20.  	The visa applicant also claimed that she did have a sister in Fiji but that she had since moved to New Zealand.  The applicant added that she was too sad to return home, even though the Tribunal notes that as at February 2009 when her Transit visa ceased, her parents were still living.  While the visa applicant may have been attempting to provide compelling reasons for why she overstayed her visa, the Tribunal does not consider that simply because she had no family in Fiji amounted to compelling reasons to waive the Schedule 3 criteria at the time of application and at the time the Tribunal accepts the applicant’s parents were deceased.
21.  	The Tribunal put to the applicant at hearing that her correspondence to the Tribunal in fact indicated that she did wish to return to Fiji to visit relatives.  The visa applicant stated that she wanted a permanent visa before she would go, otherwise she would not be able to return to Australia.  The Tribunal noted that this undermined her argument that she had no family members left in Fiji and had nowhere to go.  Given the visa applicant’s strong desire to travel to Fiji, albeit for shorter periods to see relatives, the Tribunal is not satisfied that at the time of application there were compelling reasons why she could not have returned to Fiji to be with her relatives, even if her parents and brother are deceased, for a longer period while the application was being processed.  A reason preventing the visa applicant from returning to Fiji at the time of application it appears, is that it suited her better to secure permanent residency prior to any such travel.  The Tribunal does not accept that this set of circumstances constitutes compelling reasons for waiving the Schedule 3 criteria.  
22.  	At the time of decision, the visa applicant and her sponsor have produced a birth certificate indicating that they have had a child together who was born in July 2015.  As the Tribunal put to the parties, the applicant was not pregnant at the time of application in January 2014, and the child had not been born then.  The birth of the child was not a consideration, therefore, in terms of whether the Schedule 3 criteria ought to have been waived at the time of application.  In some cases the Tribunal may give consideration to exigencies that exist at the time of decision which logically tend to show that at the time of application those later exigencies were relevant at the time of application.  
23.  	In this case, however, the visa applicant had already spent a significant period in Australia unlawfully and she could not have assumed that because she and the sponsor had a child together, she would automatically be granted permanent residency retrospectively.  Any consequent hardship faced by the visa applicant and the sponsor in being separated for a period while the visa application was being processed offshore was, therefore, entirely foreseeable and as such, having a child after the Department had already signalled in its letter to the applicant on 3 February 2014, that there needed to be compelling reasons for waiving the Schedule 3 criteria at the time of application, leads the Tribunal not to be satisfied that compelling reasons to waive the Schedule 3 criteria existed at the time of application.  
24.  	The Tribunal also notes that Fiji is not a particularly distant destination and that prior to having their child, at the time of application, the parties could have sustained a relationship without too much difficulty, particularly if the sponsor were to have made a trip or so to visit the visa applicant.  In addition, Skype, for example, provides an immediate and inexpensive means of communication that would have assisted to ensure the parties were able to engage meaningfully about their everyday activities and goals together.
25.  	At hearing the sponsor stated that he worked as a landscaper and that sometimes he worked as a mechanic and that he worked part-time.  He stated that they did not have much money.  The Tribunal appreciates that the sponsor may have been prevented from making multiple trips or indeed even one single trip to visit the sponsor while she was overseas.  However, as stated above, the circumstances in which the visa applicant found herself was not so forceful as to lead the Tribunal to be satisfied that the Schedule 3 waiver ought to be waived.
26.  	Asked why the applicant had not gone overseas to apply offshore, the sponsor stated that they just did not have the money to buy a plane ticket for the visa applicant to go home.  While any travel overseas represents a financial burden, the Tribunal is not satisfied that a single flight to Fiji would have proven so onerous as to constitute financial hardship for the couple.  This is particularly as the visa applicant has been seeking to travel to Fiji, albeit with the security of permanent residency.
27.  	Asked why the visa applicant had not approached the immigration authorities to seek advice about staying in Australia lawfully, the sponsor stated that they were too busy.  
28.  	The Tribunal notes that consideration of the Schedule 3 waiver is not meant to be used by a decision maker as a punitive measure towards an applicant who remains unlawfully in the country where there are genuine and compelling reasons for waiving the Schedule 3 criteria.  In the case of the visa applicant, however, the Tribunal considers that she approached the immigration authorities was when it served her purposes and she had found a pathway to residency.  In this regard the Tribunal is not satisfied that in this case, the Schedule 3 waiver is not being sought to facilitate a person who has chosen to remain in Australia unlawfully and for a lengthy period.  
29.  	Having considered the evidence individually as presented and cumulatively, 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).
30.  	For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
decision
31.  	The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Rosa Gagliardi
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.