Tardeo, Arturo [2003] MRTA 3732 (11 June 2003)

CATCHWORDS: Review of visa refusal - Subclass 820 - Schedule 3 criteria, compelling reasons

REVIEW APPLICANT: Arturo TARDEO AKA Severino UNABIA

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of an Extended Eligibility (Temporary) (Class TK) visa, subclass 820 (Spouse) and a General (Residence) (Class AS) visa, subclass 801 (Spouse).

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 TK) visa, subclass 820. Arturo TARDEO (the visa applicant), a male national of the Philippines, born on 8 July 1961, applied for permanent residence on spouse grounds on 24 January 1997. The delegate's decision to refuse to grant the visa was made on 29 July 2002.

2. The visa applicant lodged an application for review to the Tribunal on 8 August 2002. 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.

3. 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 Department of Immigration and Multicultural Affairs (DIMA). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. 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.

5. The criteria and policy immediately relevant to this review are:

Regulation 1.15A

Migration Regulations (Amendment) 1996 No 75

Criteria 3001 & 3004 of Schedule 3 to the Regulations.

Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204

Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438

6. 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.

T1 - MRT case file V02/05735, folio numbered 1-102;

D1 - Departmental case file V97/100397, folio numbered 1-162.

8. The visa applicant, a male national of the Philippines, entered Australia on 15 July 1990 as the holder of a visitor visa which was valid until 15 August 1990. He entered Australia on a false passport in the name of Severino UNABIA.

9. On 24 January 1997 the visa applicant applied for an Extended Eligibility (Temporary) (Class TK), subclass 820 (Spouse) visa and a General (Residence) (Class AS), subclass 801 (Spouse) visa, on the basis of his de facto relationship with Lourdes SANTOS (the nominator), an Australian citizen since March 1992.

* the visa applicant had not previously been in a married or de facto relationship. R. TARDEO (born on 15/8/1989) and R. TARDEO (born on 12/3/1991), were listed in the visa application as the visa applicant's dependants;

* the visa applicant first met the nominator in April 1993 and that they lived together firstly at Tattenham Street in Carnegie, and then at Gladstone Street in Prahan and Burnt Street in Nunawading. The dates that they resided at these addresses were not filled in;

* the de facto relationship with the visa applicant commenced on 8 August 1993; and

* the nominator separated from her spouse (whom she sponsored in July 1995) on 21 August 1995.

11. The question on the visa application relating to the nominator's previous marriage and de facto relationships was not completed.

12. A submission by the visa applicant's migration agent dated 1 July 1999 indicated that the visa applicant had been in a de facto relationship in the Philippines and that there are two children from this relationship. The nominator had a previous marriage and has 2 adult children in the Philippines.

13. Another submission dated 24 January 1997 provided the following information:

* The nominator and the visa applicant met in August 1993 and began living together in October 1993;

* The nominator was injured at her workplace on 15 December 1993 and suffered serious neck and shoulder injuries and was unable to work. The visa applicant lost his job because he had to drive the nominator to many doctor's appointments. As a result of financial difficulties, they moved in to share a house with a friend in Prahan;

* In January 1994, the nominator had an operation and was cared for by the visa applicant;

* In February 1995 the relationship broke down because the nominator began to talk to the visa applicant about marriage;

* In March 1995 the nominator married Rowel TAGALA but the marriage only lasted a few months. On 21 August 1995 Mr Rowel TAGALA returned to the Philippines;

* On Christmas day 1995, the visa applicant visited the nominator. Subsequently, they resumed their relationship. In January 1996 they started to live together again, and the visa applicant moved in to the nominator's friend's place in Prahan. In July 1996 the visa applicant and nominator moved to a flat in Nunawading.

14. Department records show that both the nominator and Mr TAGALA departed Australia on 21 August 1995 on the same vessel. The nominator returned to Australia on 6 September 1995. Mr TAGALA returned to Australia on 1 July 1996 on a subclass 100 spouse visa, which issued in June 1996. The nominator was his sponsor.

15. In the agent's submission dated 24 January 1997 it was stated:

In relation to criterion 3001, 3003 and 3004, it is submitted that in the circumstances the Minister should be satisfied that there are compelling reasons for not applying those criteria. Arturo Tardeo does not meet any criterion prescribed in Schedule 3, having arrived in Australia on 15 July 1990 using a false passport under the name of Severino Unabia (DOB 14/12/62) on a 1 month visitor visa and having not applied for an extension of this visa and having been unlawful in Australia since the expiry of this visa in 1990.

However, Arturo does believe compelling circumstances exist for the grant of the spouse visa. He believes the grounds for the grant of the visa are that Lourdes, having gone through a difficult period after her workplace accident and as she now still suffers from her injuries, requires care and supervision for these physical injuries. Further Lourdes requires constant emotional and psychological support and in this regard we are obtaining a medical report detailing Lourdes emotional state. This medical report will be provided as soon as we are in receipt.

16. In support of the visa application the following documents were provided:

* electricity accounts addressed to both parties at Gladstone Street in Prahan, which issued on 26 June 1996 and 16 July 1996;

* statutory declaration by Halina Figel which gives no clear information regarding the length of the relationship between the visa applicant and nominator;

* letter from Tony De Felice (Master Builders) dated 2 June 1998, stating that the visa applicant and nominator had been living together at Burnt Street, Nunawading from June 1996;

* a WorkCover Certificate of Capacity stating that the nominator was unfit for any work duties from 17 December 1996 to 13 January 1997;

* a medical certificate by Dr Polke dated 22/10/1996, indicating that the nominator could do `restricted work';

* a medical report by Mr Ian Jones (Orthopaedic surgeon) dated 15 November 1996 indicating that the nominator had an operation in January 1994 and returned to lighter duties in September or October 1995. There was nothing in particular that the nominator felt unable to do because of her hand symptoms but she reported taking tablets for pain The report concluded that the prognosis was likely to be one of continuing minor neck and shoulder aching symptoms. No other specialist assessment or specific medical treatment was indicated. While the report recorded the nominator's personal circumstances relating to her children and her separation from her husband, it made no mention of the nominator's relationship with the visa applicant;

* a medical report made by J. Rosenfeld (Neurosurgeon) on 29 June 1994;

* a report from Dr Roy Nallaratnam, Consultant Psychiatrist, dated 1 April 1997. The report stated in part the following:

Thank you for referring this lady who states she is depressed, which is causing disturbance in sleep, motivation and especially her ability to concentrate on her work. Her problem appears to be beyond my expertise.

....Following the operation, she returned to work, and I am told she is still working. Unfortunately her work involves heavy lifting, and she states that she cannot go home and do her household chores or even cook.

She now lives with her present fiance, Mr Arturo Taldeo, who apparently does all the household chores and attends to her when she is tired....

It would appear that Ms. Santos may have found happiness with Mr. Tardeo after being jilted by her first fiance. The fact that she has taken a reasonably long time in seeking a partner indicates that she has not chosen ´on the rebound'. Possibly, Mr. Tardeo may have been the reason she resumed work so soon after the operation.

The depression she complains of seems to be secondary to the worry that Mr Tardeo may be forced to leave Australia, as he is not an Australian citizen and has no rights to remain in the country.

17. On 30 June 1999 the Department received a report dated June 1999 from Maria Spinosa, who described herself as a former part-time member of the Social Security Appeals Tribunal. The report concluded that the nominator was suffering with significant depression and would benefit from long term counselling.

18. On 22 July 2002 the delegate refused to grant a class TK Spouse (Temporary) visa and a class AS General (Residence) visa to the visa applicant. The delegate stated that the visa applicant did not meet the Schedule 3 criteria and that there were no compelling reasons for waiving the Schedule 3 criteria. Accordingly the visa applicant could not satisfy subclause 820.211(2) or any other subclause of regulation 820.211.

19. On 8 August 2002, the review applicant lodged an application for review with the Tribunal. Copies of reports previously submitted to the Department were submitted to the Tribunal.

20. On 16 April 2003, and 15 May 2003, the Tribunal received further submissions from the migration agent. It was submitted that compelling reasons exist to waive the schedule 3 criteria as the relationship between the visa applicant and nominator had been in existence for at least 2 years. Prior to meeting the visa applicant the nominator suffered from severe depression and psychiatric trauma and was recovering from a work injury. The submission stated that the visa applicant and nominator lived together from October 1993. In February 1995 the relationship ended temporarily and the nominator married Mr Tagala in March 1995, but that marriage was "dissolved" shortly afterwards. In 1996 the visa applicant and nominator resumed cohabitation, they moved to their own place in Nunawading in July 1996 and purchased a home jointly in Springvale on 7 February 2002. It was submitted that there had been a genuine and continuing relationship for 7 years at the time of application. A certificate of marriage for the visa applicant and nominator was provided, indicating that they married in Victoria on 17 August 2002.

21. At a hearing on 16 May 2003, oral evidence was given by the visa applicant, the nominator, Mr Barry Wallace Barnes and Ms Linda Barnes.

22. Regarding the submission that there was a spousal relationship from October 1993, the Tribunal noted to the visa applicant and nominator that there was no independent evidence to suggest this. The visa applicant responded that his witnesses would attest to this.

23. The Tribunal queried the rental receipts in the joint names of the visa applicant and nominator for the Prahan property, which were dated after the claimed cessation of the relationship in February 1995. The visa applicant indicated that while he moved out when the relationship ceased the nominator did not, as there was no point changing her lease. The Tribunal sought clarification as it had been claimed that the visa applicant moved in with the nominator at a friend's place in Prahan in January 1996. The visa applicant stated that the friend was Cely Moss. The nominator stated that Cely Moss had invited her to move in. The lease was in Ms Moss' name but she moved out after a couple of months in 1996.

24. The Tribunal referred to the statutory declaration of Tomasito Torres (which stated that the visa applicant and nominator moved to Nunawading in July 1995) as this was not consistent with the letter of Tony De Felice (which indicated that they had moved in June 1996). The visa applicant stated that Tomasito Torres had made an error.

25. The nominator was unable to explain to the Tribunal how marriage formalities were complied with when she married Mr Tagala. (It was claimed that the relationship with the visa applicant ended in February 1995 and that she married Mr Tagala in early March 1995).

26. The nominator could not recall when her relationship with Mr Tagala ended. The Tribunal referred to the written submission that the relationship had ceased on 21 August 1995 when Mr Tagala departed Australia. (Also the date given in the visa application for her separation). The Tribunal then put to the nominator that she had travelled with Mr Tagala on the same flight. She conceded that this was the case. Mr Tagala was going to introduce her to his relations but this did not eventuate.

27. The Tribunal noted that while it was claimed that the relationship between the visa applicant and nominator recommenced in January 1996, the Department's records indicated that Mr Tagala was issued a visa as the nominator's spouse in July 1996. The nominator stated that Mr Tagala did not write to her when she was overseas and she thought the relationship was at an end. She divorced Mr Tagala on 14 October 1999.

28. Regarding the claim that they moved to a place of their own in Nunawading in June 1996, the Tribunal queried why the power bill submitted had issued in their joint names at the Prahan address in July 1996. The visa applicant stated that they were working and had not finalised anything.

29. The Tribunal noted that the report of Mr Jones of November 1996 referred to some of the nominator's personal circumstances but made no reference to the visa applicant, while the report of Dr Nallaratnam of April 1997 did. The nominator stated that Mr Jones talked to her about her injuries only.

30. The visa applicant stated that between February 1995 (when it was claimed the relationship with the visa applicant ceased) and January 1996 (when it was claimed the relationship with the visa applicant recommenced), she was living at the Prahan address and then at the Nunawading address. During this time the visa applicant was living in Murrambeena with some `Indian people'. She had visited the visa applicant there but did not know whose property it was. The visa applicant confirmed that he was living at Murrambeena with a friend Bernie. He could not recall the address.

31. The visa applicant stated that there were compelling reasons to waive the application of the schedule 3 criteria. In 1997 they were building a relationship financially and emotionally.

32. Regarding the nominator's work injury in 1993, the nominator was unable to provide clear information on how long she was unable to work. She then stated that she did not work for 4 years. She agreed after the Tribunal referred to the documents submitted that she had undertaken restricted duties in 1996. Regarding the report of Ms Spinosa, the nominator stated that Ms Spinosa came to her home once for the report and that she had not seen her again after that appointment. Ms Spinosa had asked about her relationship with the visa applicant, the nominator's health and about the assistance the visa applicant provided to her. The visa applicant stated that he has worked full-time since 1993.

33. Regarding compelling reasons, the visa applicant stated that they wanted a good future for his and the nominator's children. At the time of application, the nominator was ill and had no one else to look after her. The nominator stated that she has been residing in Australia since 1987. While she had acquaintances and friends like Ms Moss, she did not expect them to take full responsibility for her.

34. Ms Barnes gave evidence that she has known the visa applicant and nominator for a long time, The visa applicant and nominator were renting in Tottenham Road, Caufield in 1993. They then moved to Nunawading in 1995 and then to Noble Park 2 years ago. They have lived together without separation since 1993.

35. Mr Barnes gave evidence that he has known the nominator for 13 years and the visa applicant for 10 years. He was a witness at their marriage last year. The visa applicant and nominator have been together for 9 or 10 years. They met with the visa applicant and nominator several times a year and had monthly telephone contact. He stated that they have been a couple since 1993.

36. On 19 may 2003 the Tribunal received a further submission from the migration agent.

37. At the time the visa application was lodged, Class TK contained the following subclasses: subclass 820 (Spouse), subclass 826 (Interdependency) and subclass 445 (Dependent Child). The only subclass in respect of which any claims have been advanced is Subclass 820. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.

38. To meet the requirements of a subclass 820 visa, an applicant must satisfy the criteria set out in clause 820.211 at the time of application.

39. As the visa applicant is not the holder of a subclass 771 (Transit) visa, she must satisfy the requirements of subclause (2), (3), (4), (5), (6), (7), (8), or (9).

40. Subclause 820.211(2) applies to the visa applicant, and pursuant to 820.211(2)(d), because he is not the holder of a substantive visa, he must satisfy criteria 3001 and 3004 of Schedule 3 unless the decision maker is satisfied that there are compelling reasons for not applying those criteria.

41. It is not in dispute that the visa applicant does not meet criterion 3001, one of the required Schedule 3 criteria. The issue for determination Tribunal is whether there are compelling reasons for not applying the Schedule 3 criteria.

42. The term 'compelling' is not defined in migration legislation. Dictionary meanings of 'compel' include to urge irresistibly; and to bring about by moral necessity.

(d)(i)(B)(ii) ... satisfies Schedule 3 criteria ... unless ... there are compelling reasons for not applying those criteria'

1. This provision was inserted to allow certain spouses unlawfully in Australia but in long-standing relationships with Australian residents to legalise their status provided compelling reasons exist.

2. In assessing whether there are compelling reasons, officers are to take into account the circumstances which the Minister considers to be compelling. These were in the Explanatory Memorandum to Statutory Rules 1996 no. 75 which inserted this provision.

* that there are Australian-citizen children from the relationship; or

* that the applicant and their nominator are already in a long-standing spouse relationship (taken to be a relationship which has existed for at least two years.)

In these circumstances, it is considered that the hardship which could result in applying the Schedule 3 criteria is sufficiently compelling to justify NOT applying the criteria.

4. This does not mean that only those cases with such circumstances should benefit from the waiver; it would be an error of law to apply policy inflexibly.

5. The applicant and their nominator should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria. Officers are, of course, required under s54 of the Act to have regard to all the information in the application. However, it is the policy intention that an assessment of the relationship between an applicant and their nominator as genuine would NOT, in the absence of the factor(s) described in paragraph 3, be sufficiently compelling to justify not applying the Schedule 3 criteria.

44. The guidance given by PAM 3 is not exhaustive of what can constitute compelling reasons for the waiver of the Schedule 3 criteria.

45. In Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204, Branson J considered the meaning of `compelling reasons' in the context of another provision of the Act. The court held that `compelling reasons' must involve something in addition to the basic pre-requisite criteria for the grant of the visa.

46. In Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 Wilsox J held that the issue of whether there are compelling reasons for not applying the Schedule 3 criteria is to be considered at the time of the visa application.

47. It has been submitted that the relationship between the visa applicant and nominator was of at least of a 2 year duration at the time of application. The Tribunal is not satisfied that this is the case. The Tribunal makes the following observations:

* the claim that the relationship was of at least of a 2 year duration at the time of application was not made in the submission in support of the application dated 24 January 1997. It has only been made in the submissions of 2003;

* the claim of cohabitation from 1993 is not corroborated by independent documentary evidence. While the visa application indicates that the parties first cohabited in Tattenham Street, Carnegie, Ms Barnes stated that they rented at Tottenham Street Caufield. The lease document of the Carnegie property is not among the documents submitted to the Tribunal;

* the evidence of the visa applicant and nominator indicated that the relationship between them terminated in February 1995 and that the nominator married another man in early March 1995;

* while the visa applicant and nominator claim that they recommenced cohabitation in January 1996, Mr Tagala, as the spouse of the nominator, was issued with a spouse visa in June 1996;

* the earliest mention of the visa applicant in the professional reports submitted is in Dr Nallaratnam's report of April 1997;

* rental receipts for the Prahan property in 1995 are dated after the cessation of the relationship in February 1995. The lease document of the Prahan property is not among the documents submitted to the Tribunal. Additionally the evidence at the hearing was that this property was leased by Ms Moss;

* the evidence of Mr and Mrs Barnes indicated that they were not apprised of relevant matters pertaining to the relationship. They were both unaware of the separation of the visa applicant and review applicant between February 1995 and January 1996 and Ms Barnes did not refer in her evidence to any period of cohabitation by the visa applicant and nominator at Prahan; and

* the evidence at the hearing was that the relationship between the visa applicant and nominator ceased in February 1995, the nominator married another man in early March 1995 and the nominator recommenced her relationship with the visa applicant in January 1996. Even accepting that the visa applicant and nominator have been cohabiting since January 1996, this is not at least 2 years before the time of application.

48. The Tribunal has had regard to the all the circumstances raised by the visa applicant and nominator and to the medical evidence regarding the nominator's injuries and mental state at the time of application. The Tribunal is not satisfied on the evidence before it that these matters constitute compelling reasons.

49. Given these findings, and earlier observations in respect of the other subclasses, the Tribunal has no alternative but to affirm the decision under review. The visa applicant does not meet essential criteria for the grant of a Class TK visa.

50. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of an Extended Eligibility (Temporary) (Class TK) visa, subclass 820 and a General (Residence) (Class AS) visa, subclass 801 (Spouse).