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austlii:cth/MRTA/2000/4872
appellant. The Tribunal remitted the visa application to the Department for reconsideration, directing that the visa applicant be taken to have met subclause 820.211(2), subclause 820.221(1) and clause...
The Migration Review Tribunal overturned the delegate's refusal of a temporary partner visa. Although the applicant had no substantive visa when she lodged, the Tribunal found the marriage genuine and, on the evidence of misadvice about visa validity and significant care obligations and likely undue hardship if forced offshore, concluded there were compelling reasons to waive the additional Schedule 3 requirements. The matter was remitted to the Department with directions that the applicant be taken to have met certain visa criteria.
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A US national, Ms Patsy Clegg Crowe, entered Australia on visitor visas in 2000, met and married an Australian citizen, Mr Peter Norman Clegg, on 12 November 2000 and lodged an onshore Partner visa application on 5 March 2001 (paras 10, 12). The delegate refused to grant the Partner (Temporary) (Class UK / Subclass 820) visa on the basis that Ms Crowe did not hold a substantive visa at the time of application and therefore failed to meet Schedule 3 criteria (paras 13, 21). The delegate also found that there were no compelling reasons to waive those Schedule 3 requirements (para 14).
No linked legislation citations have been extracted yet.
Ms Crowe applied to the Migration Review Tribunal for review (para 3). At the Tribunal hearing on 16 August 2002 the Tribunal accepted the genuineness of the marital relationship (paras 20, 26-27). It also accepted evidence that the applicant had been misinformed by a travel agent about the period of validity of her visitor visa and found that she provided substantial care to the nominator's mother and children, such that forcing her to apply offshore would cause undue hardship (paras 24-27). The Tribunal found that these circumstances, taken together, amounted to compelling reasons to waive Schedule 3 criteria and remitted the application to the Department with a direction that the applicant be taken to have met specified Schedule 2 criteria (paras 27-30).
The Tribunal's decision turned on three linked legal points: (1) whether the relationship was genuine and continuing, (2) whether the applicant held a substantive visa at lodgement and therefore triggered Schedule 3, and (3) whether there were compelling reasons to waive Schedule 3.
Relationship genuineness (Regulation 1.15A)
Schedule 3 and substantive visa status
'Compelling reasons' to waive Schedule 3
Before this review the statutory framework was that an onshore spouse applicant without a substantive visa must satisfy Schedule 3 criteria, or have compelling reasons to justify waiver (see paragraph 820.211(2)(d)(ii) and Schedule 3 as explained at para 21). The Tribunal applied established authorities for the tests it applied: it followed Nassouh for the mandatory nature of reg 1.15A(3) considerations (para 18) and relied on Dunne for the interpretive principle that 'compelling reasons' require something beyond mere genuineness (para 22). MSI 237 provided departmental policy guidance that compassionate factors and consequences of refusal could be relevant (para 23).
After this decision the immediate legal consequence is an application of those authorities and policy to the facts: care obligations and mistaken advice about visa validity can, in combination with a genuine relationship, constitute compelling reasons to waive Schedule 3. The Tribunal exercised its remedial power to remit and to direct that the applicant be taken to have met specified Schedule 2 criteria (para 6; paras 28-30). The decision therefore exemplifies how the Tribunal may find waiver where the applicant's breach of visa conditions stemmed from circumstances beyond the applicant's control and where separation would cause undue hardship to an Australian family.
Paragraph 6: "The Tribunal has the power to affirm, vary or set aside a decision ... remittal may be accompanied by directions ..."
Paragraph 18: "subregulation 1.15A(3) sets out mandatory considerations ... the Tribunal ... must take into account"
Paragraph 21: "The visa applicant's substantive visa expired ... must satisfy Schedule 3 ... unless ... compelling reasons ..."
Paragraph 23: "Compelling reasons may stem from compassionate factors ... from circumstances beyond the applicant's control"
Paragraph 27: "The Tribunal finds the existence of compelling circumstances ... undue hardship would occur if ... compelled to apply off-shore."
This decision is directly engaged where:
If those conditions are present, this decision supports a waiver of Schedule 3 on review and a direction that the applicant meet Schedule 2 criteria.
This particular Tribunal statement does not itself record later appellate treatment or bind courts. The decision expressly applies and follows Federal Court authorities (Nassouh and Dunne) and departmental policy (MSI 237) (paras 18, 22-23). The judgment contains no material about subsequent appellate consideration of this specific Tribunal decision. Therefore, a practitioner should treat this decision as a persuasive Tribunal decision applying established authorities rather than as establishing new binding appellate precedent.
For practical purposes, the decision demonstrates the Tribunal's approach to 'compelling reasons' within the parameters set by Dunne and MSI 237; later tribunals or courts will look to the Federal Court authorities for binding answers on legal interpretation. This decision is a useful example of fact-driven application of the 'compelling reasons' doctrine and the exercise of the Tribunal's remedial power to remit with directions (paras 6, 27-30).
The Tribunal's reasoning is clear on the facts it accepted, but questions that remain for future cases include:
In summary, Crowe (Patsy Clegg) exemplifies a fact-based Tribunal exercise of discretion to waive Schedule 3 where a genuine relationship exists and the visa breach arose from circumstances beyond the applicant's control combined with significant compassionate consequences. It does not alter the governing legal tests from Federal Court authority, but it illustrates how those tests operate on concrete family and care facts (paras 18, 21-27, 29-30).
CATCHWORDS: Review of visa refusal - Subclass 820 - genuine and continuing relationship - compelling reasons for waiver of Schedule 3 criteria
DECISION: On 16 August 2002, the Tribunal gave an oral decision remitting the application made by the visa applicant for a Partner (Temporary) (Class UK) visa to the Department of Immigration and Multicultural and Indigenous Affairs for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a Subclass 820 (Spouse) visa:
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) to refuse to grant a Partner (Temporary) (Class UK) visa to Ms Patsy Cleg Crowe (the visa applicant), a national of the United States of America, born on 26 September 1955 who applied for permanent residence on spouse grounds on 5 March 2001.
2. The visa application form completed by the applicant incorporated an application for a permanent visa, a Partner (Residence) (Class BS) visa, which normally cannot be granted until 2 years have elapsed since the lodgement of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK) visa, which can be granted immediately, to permit stay until a decision is made on the permanent visa. This process is intended to test whether the relationship is continuing, 2 years after the visa application, before permanent residence is granted. The delegate's decision to refuse to grant the visa was made on 3 July 2001 and the visa applicant was notified of this decision on 16 July 2001.
3. The visa applicant lodged an application for review with the Tribunal on 9 August 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
4. The visa applicant lodged one application for review form and paid one fee and there is some question as to which of the two decisions is to be reviewed by the Tribunal - the decision to refuse to grant a Class UK visa or the decision to refuse to grant a Class BS visa. The obvious intention behind the application for review is to seek a review of whatever decisions prevented the visa applicant from gaining residence on spouse grounds, and the necessary first step is the review of the decision to refuse to grant the Class UK visa. The Tribunal is therefore proceeding on the basis that this review is in respect of the decision to refuse to grant the Class UK visa.
5. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the then Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.
6. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
7. The criteria and policy immediately relevant to this review are:
Regulation 1.15A of the Regulations
Regulation 1.20J of the Regulations
Criteria 3001, 3003 and 3004 of Schedule 3 to the Regulations
Procedures Advice Manual 3: Regulation 1.15A - Interpretation - Spouse
Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas
Procedures Advice Manual 3: Schedule 2 - Spouse - Visa 820
MSI 237, dated 18 May 1999: Schedule 3: Additional criteria applicable to unlawful non-citizens and certain bridging visa classes.
Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788
Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, Loughlin J, 29 November 1991)
Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204
8. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.
10. The visa applicant first entered Australia on 15 March 2000 on a Subclass 976 (visitor) visa that was valid to 15 June 2000. The visa applicant departed Australia on 28 March 2000 and returned on 15 May 2000 as the holder of a Subclass 976 visa. This visa was valid until 15 August 2000. Since then the visa applicant remained in Australia. The visa applicant lodged her application for permanent residence on spouse grounds on 5 March 2001and was granted a Bridging E visa.
11. The visa applicant was nominated in connection with the visa application by Mr Peter Norman Clegg (the nominator), an Australian citizen, who was born in Australia on 27 April 1952.
12. The visa applicant stated in the visa application that she first met the nominator through a computer web-site in November 1999 and then the couple met in Florida in the USA on 27 February 2000. The visa applicant and her nominator married in Sydney on 12 November 2000. The visa applicant has previously married twice. She divorced her first husband in 1977 and had two children from the relationship. The visa applicant's second relationship ended when her husband died in 1999 and she had a child from the relationship. Her children now aged 28, 26 and 25 currently reside in the USA. The evidence provided in support of the application includes:
* Certified copy of divorce certificate of the nominator and his former spouse, Dawn Ann Clegg. The divorce certificate indicates that the date of divorce is 9 November 1995.
* Certified copy of death certificate of the visa applicant's former spouse, David R Crowe. The death certificate indicates that the date of death is 23 June 1999.
* Certified copy of the nominator's birth certificate.
* Certified copy of the visa applicant's identification card.
* Certified copy of marriage certificate. The marriage certificate indicates that the date of marriage is 12 November 2000.
* Statutory declarations from the visa applicant and the nominator.
* Certified copy of visa applicant and nominator's passports.
* Statutory declarations from the visa applicant's mother and friend attesting to the genuineness of the couple's relationship (Forms 888).
13. The delegate's reasons for not granting a Class UK visa were that the visa applicant was not the holder of a substantive visa at the time of application, and as such, she failed the Schedule 3 requirements. The delegate stated that the visa applicant's last substantive visa expired on 15 August 2000. The Department's movement records indicate that the last substantive visa held by the visa applicant that was valid to 15 August 2000.
14. The delegate considered whether compelling circumstances existed to waive the Schedule 3 requirements, but stated that at the time of decision the relationship had been in existence for less than 2 years, that there were no Australian citizen children of the relationship and no claim or evidence of other compelling circumstances had been submitted.
15. The visa applicant did not provide any reasons for seeking review when lodging the application for review.
16. At the time the visa application was lodged, Class UK contained the following subclasses: Subclass 820 (Spouse), and Subclass 826 (Interdependency). The only subclass in respect of which any claims have been advanced is Subclass 820. It was not contended nor is there evidence to suggest that the visa applicant meets key criteria for the other subclass.
17. The criteria for a Subclass 820 visa, which the Tribunal considers to be relevant to whether the delegate's decision should be affirmed or the application be remitted to the Department, are set out in subclauses 820.211(2) and 820.221(1), and clause 820.221A. The criteria can be posed as the following questions:
* Was the visa applicant the spouse of the nominator at the time of the visa application?
* Was the nominator an Australian citizen, an Australian permanent resident or eligible New Zealand citizen at the time of the visa application?
* Was the visa applicant the holder of a `substantive visa' at the time of application?
* Does the visa applicant continue to be the spouse of the nominator at the time of decision?
18. Regulation 1.15A contains the test to be applied to determine whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788 the Federal Court considered this provision of the Regulations. The Court held that subregulation 1.15A(3) sets out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or a de facto relationship is genuine must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.
19. In Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, Loughlin J, 29 November 1991) the Court stated:
It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE - 7 February 1990 . But the evidence of the subsequent history is only relevant so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined": Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at p.160 per Deane J.
20. Having regard to the considerations for a spousal relationship set out in regulation 1.15A at the time of application and the time of decision, the evidence and issues are discussed under the following headings:
Regulation 1.15A(1A)(a): The qualifying elements for a married relationship
The visa applicant and the nominator were married to each other in Sydney on 12 November 2000. At the time of application the visa applicant and the nominator were married to each other under a marriage that is recognised as valid for the purposes of the Act. At the time of decision they are still married to each other.
Regulation 1.15A(3)(a): The financial aspects of the relationship
Regulation 1.15A(3)(b): The nature of the household
The couple claimed that they have lived together at the same address since their marriage and they share responsibility for household work. The nominator's mother and two teen-aged daughters from a former marriage live with the couple. The nominator stated that the visa applicant assists his mother in shopping and gardening. The visa applicant does all the household work while the nominator is at work.
The visa applicant's children from her former marriages are adult and live overseas.
Regulation 1.15A(3)(c): The social aspects of the relationship
The visa applicant has submitted several photographs and envelops to the Department. Evidence provided shows correspondence addressed to the visa applicant from her children and from her sister in the USA. There are several photographs of the visa applicant with the nominator, his mother and daughters. Some of the photographs are with family and friends. One of the photographs was taken at their wedding.
The nominator's daughters regard the visa applicant as their second mum and say that they love her. In a statutory declaration the nominator's mother stated that she has been in contact with the visa applicant every day and she helps her with house work and shopping. The nominator's mother stated that the visa applicant and the nominator love each other and have a genuine relationship.
Regulation 1.15A(d): The nature of the persons' commitment to each other:
The couple met each other though the Internet in November 1999. The visa applicant stated that she found the nominator very interesting and they communicated with each other through e-mails and by telephone every day. The nominator went to see the visa applicant in the USA in February 2000. The visa applicant flew with the nominator to Australia in March 2000. The visa applicant stated that she had to depart Australia after two weeks because her father in the USA had a stroke. She missed the visa applicant while in the USA and went back to Australia to be with the nominator. Since then they have been living together.
Regulation 1.15A(1A)(b)(i): Whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others
The visa applicant and the nominator commenced living together in February 2000 and since then they have been living together except for a period of 6 weeks when the visa applicant had to depart Australia to see her sick father. From the evidence provided it appears that at the time of their marriage they had established a strong mutual commitment to the marriage, and to being together as husband and wife to the exclusion of all others.
Regulation 1.15A(1A)(b)(ii) and (iii): Whether the relationship is genuine and continuing. Whether the persons live together, or do not live separately and apart on a permanent basis
The visa applicant and the nominator claimed that they have been living together since February 2000. However they have not provided any evidence to support their claim.
21. The visa applicant's substantive visa expired on 15 August 2000, and the visa applicant therefore did not hold a substantive visa at the time of application. In accordance with paragraph 820.211(2)(d)(ii), the visa applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. The date of application is more than 28 days after the expiry of the visa applicant's substantive visa, and the visa applicant therefore appears cannot satisfy criterion 3001.
22. As the visa applicant cannot satisfy one of the criteria 3001, 3003 and 3004, the Tribunal must consider whether there are compelling reasons for not applying the relevant Schedule 3 criteria. The compelling reasons must clearly be something additional to the existence of a genuine relationship. In Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 240 the Court stated:
The expression `compelling reasons' involves something in addition to the basic prerequisite criteria for the grant of the visa. The Tribunal is entitled, as a matter of law, to take into account circumstances falling outside those mentioned in the guidelines or policy.
23. `Compelling' is not defined in the legislation. The notion must therefore be accorded its ordinary meaning. The dictionary meaning of `compelling' adopted by policy guidelines in relation to other areas of migration law (see MSI 237) include `to urge irresistibly' and `to bring about by moral necessity'. Policy guidelines set out in MSI 237 in relation to certain Schedule 3 criteria indicate that:
6.5.5.2 all the circumstances of each case should be considered in determining whether compelling factors exist. Consideration of the likely consequences of not granting the visa may assist in considering whether particular reasons are compelling.
6.5.5.3 Compelling reasons may stem from compassionate factors, or may arise for example, from the applicant's circumstances or the circumstances of their nominator. It may be that the "circumstances beyond the applicant's control" which caused them to become an illegal entrant or a person in Australia without a substantive visa (and which they had to demonstrate in order to meet 3003/3004(c)), also constitute compelling reasons for granting the visa.
24. The visa applicant stated that she did not realise that her visitor visa had expired on 15 August 2000. She provided a statement in which she stated that she was advised by her travel agent that her visitor visa was valid for 12 months and she took the agent's words for it.
25. On 26 March 2001 the department requested the visa applicant to provide reasons if there were compelling circumstances of a strongly compassionate nature to waive Schedule 3 criteria. The nominator provided a statement in response stating that the visa applicant was misled about her visa and did not know they she had overstayed her visa. The nominator stated if the visa applicant was not allowed to live in Australia, he and his family would be devastated. His mother depends on the visa applicant and his daughters from a previous marriage regard her as their second mother. If the visa applicant had to leave Australia he would leave with her and it would destroy his mother's and daughters' lives. The nominator regards the nominator's home as her home and has nowhere to go. The nominator stated that he does not want to leave Australia and upset his family, as they are all happy the way things are.
26. A hearing was held in this review on 16 August 2002. At the hearing the visa applicant and the nominator gave sworn evidence. The visa applicant confirmed her migration history as set out in the Departmental and Tribunal files. The Tribunal accepted that the visa applicant and the nominator were in a genuine and continuing spousal relationship. Asked to explain why she did not lodge her application for a permanent visa within the authorised time, the visa applicant explained that when she last departed the U.S.A. her travel arrangements had been made through a travel agent and that there had been a mix-up with respect to the bookings of her and her nominator's return flight. As well the travel agent had assured the visa applicant that her travel visa for Australia was valid for twelve months. The nominator confirmed that he too, was of the view that his spouse's visa authorised a stay of twelve months. The visa applicant and the nominator both testified to the effect that the visa applicant has provided and continues to provide substantial support to the mother of the nominator who is presently in Nepean Hospital having sustained a fracture of her neck and femur. This means that she will require substantial assistance when she is discharged from hospital. The visa applicant is happy to provide this assistance and in addition she cares for two daughters of the nominator from an earlier marriage. The nominator has recently re-entered the work force and the assistance of the visa applicant is essential if he is to continue in employment as well as care for his mother and daughters.
27. Based on the above oral and documentary evidence, the Tribunal is satisfied that the visa applicant and the nominator have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis. The Tribunal finds the existence of compelling circumstances such as would justify waiver of the requirement both as to length of relationship prior to lodgement of the application and the existence of circumstances beyond the control of the visa applicant. This is because it was apparent to the Tribunal that the visa applicant and the nominator are very devoted to one another. They exhibited a high level of anxiety at the thought that the visa applicant would have to return to the U.S.A. and then apply for a visa off-shore. Given the totality of the circumstances of the visa applicant and the circumstances of the nominator, the Tribunal is satisfied that undue hardship would occur if the visa applicant were compelled to apply for a spouse visa off-shore. This is because the visa applicant, among other things, is providing substantial support to the nominator in his new employment, assisting with the care of his mother and also with the care of his daughters. These circumstances, in the view of the Tribunal, are sufficiently compelling to justify waiver of the Schedule 3 criteria in this review.
28. The Tribunal finds that the visa application meets the following criteria:
29. The Tribunal is satisfied that the visa applicant satisfies criteria for a Partner (Residence) (Class UK) visa and is satisfied that the Schedule 3 criteria should be waived.
30. The Tribunal remits the application made by the visa applicant for a Partner (Temporary)(Class UK) visa to the Department for reconsideration with a direction that the visa applicant has met the above criteria for grant of this visa.
The Tribunal remitted the visa application to the Department for reconsideration, directing that the visa applicant be taken to have met subclause 820.211(2), subclause 820.221(1) and clause 820.221A of Schedule 2 and finding Schedule 3 criteria waived (paras 28-30).