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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:
- cl.820.211(2)(d)(ii)
of Schedule 2 to the Regulations.
Statement made on 30 October 2014 at 10:44am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
- 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).
- 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.
- 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.
- 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.
- 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.
- 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?
- 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).
- 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
- 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.
- 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.
- 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
- 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.
- 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].
- 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.
- 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.
- 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.
- 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.
- 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.
- The
couple’s biological child was born on 12 September 2014.
- 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.
- 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.
- 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.
- 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).
- 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
- 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.
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