AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Migration Review Tribunal of Australia

You are here: 
AustLII >> Databases >> Migration Review Tribunal of Australia >> 2014 >> [2014] MRTA 2580

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Context] [No Context] [Help]

1311619 [2014] MRTA  2580  (30 October 2014)

Last Updated: 16 December 2014

1311619  [2014] MRTA 2580  (30 October 2014)


DECISION RECORD

APPLICANT: Mr Balwinder Singh

MRT CASE NUMBER: 1311619

DIBP REFERENCE(S): CLF2011/141085

TRIBUNAL MEMBER: Gary Ledson

DATE: 30 October 2014

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 (Temporary)) visa:

Statement made on 30 October 2014 at 10:44am


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 16 July 2013 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 24 August 2011 on the basis of his relationship with his 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. On 16 July 2013 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211 because at the time of application the applicant was not the holder of a substantive visa, accordingly he did not satisfy the Schedule 3 criteria and there were no compelling reasons to waive the Schedule 3 requirements.
  4. The applicant appeared before the Tribunal on 28 October 2014 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Tennelle Angela Atkinson. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
  5. Prior to the hearing the applicant provided a certified copy of a Birth Certificate issued by the Registry of Births, Deaths and Marriages which records the applicant and the sponsor as the father and mother (respectively) of a child, Indiana Maree Atkinson – Kaur born on 12 September 2014, MRT file 1311619, folio 67.
  6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

  1. 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).
  2. 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

  1. 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.
  2. The applicant first entered Australia on 23 June 2009 as the holder of a dependent Subclass 572 student visa which had been granted to him on 13 May 2009. The applicant’s dependent Subclass 572 student visa was cancelled on 24 November 2010 because his relationship with the primary visa applicant had ceased. The applicant resided unlawfully in Australia between 24 November 2010 and 22 August 2011. Since that time the applicant has been lawful in Australia as the holder of successive bridging visas.
  3. As stated above 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 in the present case is the day the applicant last held a substantive visa, being 24 November 2010. The current application was lodged on 24 August 2011. Accordingly the Tribunal finds that the application for the visa was not made within 28 days of the relevant day, and accordingly the applicant does not satisfy criterion 3001.

Compelling reasons

  1. 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.
  2. 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] FCAFC 77 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] FCA 438 at [39].
  3. What amounts to compelling reasons in each case is a question of fact, having regard to all the circumstances of the case. To find whether compelling circumstances exist, the Tribunal is required to look at all of the circumstances of the case.
  4. The applicant is a citizen of India born on 8 January 1986. He first arrived in Australia on 23 June 2009 as the holder of a Subclass 572 student visa as a dependent of his then wife, Rajwinder Kaur. The applicant's student visa was cancelled on 24 November 2010 on the basis that the relationship he had with Rajwinder Kaur had ceased. The applicant told the Tribunal that he and his had wife quarrelled and they had separated. He told the Tribunal that he was not aware that his visa had been cancelled until he approached the Department regarding the current application.
  5. The consistent evidence before the Tribunal is that the applicant met the sponsor on 31 December 2010 at a hotel in Swan Hill. After that they commenced a relationship and made a commitment to marry on 19 March 2011. The couple were married in Swan Hill on 10 June 2011.
  6. The sponsor is an Australian citizen born on 14 September 1990. She has two children from a previous de facto relationship, aged 6 and 4 years. The evidence is that the biological father of the sponsor’s two children has little to do with them however he pays child support. The sponsor described how the applicant has developed a strong relationship with her children, particularly the youngest.
  7. The sponsor described how the family had now moved to Melbourne to start a new life together away from the sponsor’s relatives in Swan Hill. The applicant is currently unemployed and the family’s only income is from parenting and family allowances through Centrelink.
  8. The couple’s biological child was born on 12 September 2014.
  9. In relation to the compelling reasons for the waiver of the Schedule 3 criteria, the Tribunal has considered the fact that there is now indisputably an Australian citizen child of the relationship. The Tribunal notes the distress of both parties with the thought that the applicant may have to depart Australia in order to lodge a partner visa application offshore. The sponsor in particular described the importance of the applicant in helping her manage their young family, and the strong relationship that the applicant has developed with her youngest son, Dwight, who she believes regards the applicant as a father. The sponsor said that it would be devastating for the applicant to be separated from their biological child of only a few weeks.
  10. The Schedule 3 criteria are 'time of application' criteria. In this respect, the Tribunal would be precluded from considering compelling reasons or circumstances that arose or occurred after the date of application. Notwithstanding this, when assessing such matters, the Tribunal may have regard to later events in relation to an earlier point in time, so long as the later events tend logically to show the existence or non-existence of facts that existed at the time of application. In the context of a time of application criterion such as whether there are compelling reasons for not applying Schedule 3 criteria, the Tribunal would only apply these principles if the events or circumstances relied upon gave further weight to a compelling circumstance that was already in existence at the time of application.
  11. While it is true that there did not exist at the time of the application any Australian citizen children of the relationship the couple now have a biological child who is an Australian citizen. Taking this child into consideration with the other circumstances of this case including the relationship that the applicant has with the sponsor’s biological children, the Tribunal finds that this amounts to compelling reasons for waiving the Schedule 3 criteria in this case.
  12. 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).
  13. 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

  1. 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)(ii) of Schedule 2 to the Regulations.


Gary Ledson
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 Migration Review 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.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/MRTA/2014/ 2580 .html