Australian Immigration Daily News

If a couple were to come into your office and tell you that they were legally married, had a child together, and had the results of a DNA test confirming that the husband was the father of the child, and they could tell you in advance that the Administrative Appeals Tribunal (AAT) would accept that their relationship was genuine, would you think to yourself: “There should ultimately be excellent prospects of getting a partner visa approved for these clients?”

Well, perhaps you have heard of the famous song from the Gilbert and Sullivan operetta “HMS Pinafore” called: “Things Are Seldom What They Seem”! A recent decision from the AAT, 1409924 (Migration) (2015) AATA 3088 (15 July 2015) provides an illustration (surely in the realm of migration law, but also commonly in daily experience) just how accurate the title of this song really is. Or to put it another way, as RMAs know, “Life can be full of surprises”!

On the surface of things, the story of this couple’s relationship, while not without its complications, seemed straightforward enough. And, as mentioned at the beginning of this article, even if the evidence wasn’t sufficient to satisfy the Department about the genuineness of the relationship, it was strong enough to convince the Tribunal member. The true problem was lurking at a deeper level – the dreaded “Schedule 3”!!!!!

The basic facts of the case were that the applicant was a 28 year old citizen of India who was living in Australia after having formerly held a student visa. His sponsor was a 24 year old woman who had been born in Samoa, and who was an Australian citizen. They had met in May 2012, had started dating in August of that year, and were married in March 2013. They produced a copy of their marriage certificate to the Department.  They had a daughter together in January 2014. As mentioned previously, they were able to produce the results of a DNA test proving the applicant’s paternity. There was also evidence that their young daughter was suffering from a medical condition (eczema) and required special care.

Everything sounds pretty good so far, wouldn’t you agree?

The first obstacle in this case was that the Departmental officer who assessed the application did not accept that the relationship was genuine.  Issues that were referred to in the AAT’s decision as being of concern to the “delegate” included: a lack of detail to indicate that a joint bank account that had been opened by the applicant and his sponsor had “legitimately” used the account together; a disclosure in the application that the couple was not living together at the time that the application was lodged; a lack of detail in the statements of supporting witnesses concerning the reasons why they believed the relationship was genuine; an absence of statements from the applicant’s family in support of the application; and sparse information in the application to confirm that the parties considered their relationship to be long-term in nature. On the basis of these concerns, the Departmental officer saw fit to refuse the application.

These issues did not appear to be especially troubling to the Tribunal member (Hugh Sanderson) who presided over the application for review before the AAT.

As mentioned above, what proved to be the true problem was the applicant’s inability to satisfy Schedule 3 requirements.  The underlying story was that the applicant’s student visa had been cancelled in August 2012, and he had been living in Australia without a substantive visa ever since that time. The Tribunal found that the applicant had not filed his application for a partner visa until more than 7 months had passed since his student visa had been cancelled. Accordingly, he was unable to satisfy criterion 3001 of Schedule 3, which required him to file a new application for a substantive visa no more than 28 days after the date of the cancellation of his student visa.

Unfortunately for the applicant, the AAT found that “compelling reasons” did not exist for waiving the Schedule 3 criteria.  The Tribunal member concluded that the Schedule 3 criteria are “time of application criteria” (relying on the case of Boakye-Danquah v MMIA (2002) FCA 438.  The basis on which the Tribunal found that compelling reasons for granting a waiver of Schedule 3 did not exist included the fact that the applicant and the sponsor had been married only for a short time when the partner visa application was filed; they only moved into an apartment together after the visa application was filed; they each had independent sources of income; and there was no evidence that either the husband or wife would suffer from anything more than the “normal hardship “ associated with being separated while awaiting an assessment of an offshore partner application.

Because the Tribunal member found that the Schedule 3 criteria must be met at the time of application (and thus not at the time that an application for review is heard by the AAT), he determined that he was not able to take into account the circumstances with respect to the birth of the couple’s child or the current dependency of the sponsor and the child on the applicant for financial and emotional support. Thus, the AAT saw itself as being compelled to affirm the refusal of the partner application.

Happily, however, the Tribunal member concluded his written decision by stating that, in light of the family’s circumstances, he supported the grant of ministerial intervention.  One can hope that such an application, having the Tribunal’s endorsement, will succeed!!

This is an excellent case to point out the next time someone says to you: "These forms look pretty easy! I can do this all on my own! Exactly why do I need a migration agent, and exactly what can you to to help me"!!!

Concordia Pacific Migration Lawyers, Email: cThis email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837