The Administrative Appeal Tribunal,
Re – Boris Johnston (Applicant) (DOB: December 2, 1992)
Nellie Melba (Sponsor) (DOB: June 19, 1994)
This application is the response to the letter sent under section 359 A by the administrative appeal Tribunal. It must be noticed that schedule 3 provides permission for all the non-citizen people outside the territory of Australia to apply for a visa on compelling as well as compassionate grounds. In the Migration Act, there is no specific set of the list provided which can give a clear idea as to what compelling for compassionate grounds can be and therefore it is the responsibility of the administrative appeal Tribunal to look into the matter. Section 48 of the Migration Act allows the citizen to opt for a partner visa in the territory of Australia but in the present case, the application was refused on the ground of not satisfying the requirements provided under schedule III of the Migration Act. Certain changes had been made in the policy which provides that an application should be made within 28 days after the ceiling of the substantive visa. Also, there must be compelling reasons for the grant of partner Visa and the person must have complied with all the substantial conditions attached to the partner visa. However, according to the migration regulations if a person is not able to meet the criteria, then the issues related to schedule III can be waived off on the ground if the compelling reasons are provided.
It must be noticed that according to the migration regulations the conditions of the compelling and compassionate situation may vary from case to case. The migration law provides that the policy must be applied flexibly and the regulations provided under the act cannot be applied in a narrow sense4. It is mentioned under the act that if the visa applicant can explain the circumstances and also provides document under regulation 1.09 A under 1.15 regarding the relationship your commitment with each other then it is the discretion of the administrative appeal Tribunal to grant the application of partner visa. In the lights of the present facts and circumstances of the case, it must be noted that Mr Boris Johnston and Nellie Melba in a registered relationship. Nelli is an Australian citizen and Mr Boris and Nelli started living together as a couple since December 20, 2018. In the year 2019, many became pregnant and had to visit several times to the clinic for which the financial assistance was provided by Boris. It must be noticed that Boris and Nelli have a joint account and most of the time bowlers help her to pay the cost for groceries and the daily stuff needed to buy the baby.
Boris had to leave his job because of the illness and sudden hospitalization of Nelli. This is the major ground as to why Mr Boris forgot to renew his working holiday visa which ceases on 2nd February 2019. After this, on 13th March the relationship was registered and on 20 December 2019 their son Thomas was born. Mr Boris had to leave his job at Barista due to the COVID-19 situation in March 2020 and this made his family support us financially during that time. In the year 2019, Nelli's family had visited the couple to greet them for Christmas and to see the baby boy and during this time lots of photographs were also taken which can also be taken as evidence in the lives of the present facts and circumstances of the case. Therefore, the administrator appeal
Tribunal must grant the partner visa to Boris as daily and their baby will not be able to survive without his support.
Apart from this, Nelli had also contended that she is very happy with the registered relationship she had with Boris as he is a great man. Both of them came close when was used to work at a coffee shop and in December 2018 they realized that they were being in love. Soon after the Christmas day was blessed with a second child, Nelli contended that to take care of her and baby, Boris had left his job and helps her in cooking. They were going through a lot of things which made them forget about the seizing of Boris working holiday visa. Evidence can also be taken when Nelli had to miss the last semester of a music degree in the year 2018 due to her medical and pregnancy issues. There is a high chance that Nelli can suffer from depression if the partner visa is not granted to Boris as both the mother and the baby is highly dependent upon Boris both psychologically and emotionally.
Therefore, in the lights of the above facts and circumstances of the case, the criteria mentioned under schedule III of the migration laws and regulations are abided by both Boris and Nelly because they have both the compelling as well as compassionate grounds upon which the administrative appeal Tribunal must grant them the application of partner visa6. Therefore, on the grounds of compelling and compassionate reasons schedule 3, issues must be waived off by the administrative appeal Tribunal in the present case7. Moreover, it must be noticed that Boris was provided with the working holiday Visa and later was provided with a Bridging Visa C with condition 8101 which was waived off when he had shown the evidence of the compelling need to work in the territory of Australia. When the conditions attached to bridging visa word wave off on the grounds of compelling and compassionate reasons then on the same grounds the application for grant of partner visa can also be provided under the Migration Act.
All the facts and circumstances of the case clearly show that both Boris and Nelli were in a serious and genuine relationship and the newborn baby also need this support and love from his father. This evidence is sufficient to prove that there are compelling and compassionate reasons to grant Boris the partner visa and the issues related to schedule 3 must be waived off.
Therefore, the supporting letters from both Boris and Nelli and other related documents like the photographs which were clicked during the visit of the parents of Nelli, the documents related to the registered relationship between both the partners, the application of waiver of condition 8101 for Bridging Visa C for borders on the ground of compelling reasons, and the document of joint account between both the partners are sufficient evidence to show that both the partners are in a genuine relationship with each other since a long time10. The medical reports and the birth of both the children can also be taken as a piece of strong evidence for the need of Boris to stay in the territory of Australia to provide care and support to Nelli and his children.
The Migration Act 1958 mentions that on the grounds of personal circumstances the refusal of grant of partner visa and the waving of issues mentioned under schedule III of the Act can be determined11. It is mentioned that to take care of a person in the close relationship on the grounds of medical reasons or any act which will cause a significant impact upon the psychological well-being of the person from losing a partner provides enough grounds to be categorized under the compelling reasons to provide a grant of a waiver of schedule 312. The body was not a holder of a substantial visa at the time of lodging a partner visa application only because of his circumstances. He had been granted a working holiday Visa and bridging visa but he forgot about the same while taking care of the child and Nelly as she was suffering from illness and was pregnant. it must be noted that under migration regulations 1994 no such circumstances are provided for the assessment of certain situations to determine whether the same is compelling or not or can be applied for the assessment of conditions under schedule III.
The migration regulations 1994 mentioned that the circumstances must be applied on a case to case basis. Therefore for the present facts and circumstances of the case, the administrative appeal Tribunal must issue related to schedule III of the act.
The provided explanation to the department related to the overstaying in the territory of Australia is the need for a grant of partner visas is sufficient for taking a wise decision by the administrative appeal Tribunal to provide a grant of partner visa to Boris. According to the current policy guidelines of the administrative appeal Tribunal, the existence of a real and genuine relationship is in itself not a sufficient reason to satisfy the requirement of compelling reasons under the act13. The existence of genuine relationship will not be deemed as compelling reasons where the applicant of the partner visa has remained unlawful for several years and had made no effort whatsoever to regularize the status of the partners for a long period. It must be noticed that there was no such incident of making no effort in the present case.
Whatsoever delay had caused was due to the personal situations related to the illness and medical issues of Nelli and the birth of their child which was beyond the control of both the partners. The COVID-19 situation, pregnancy of Nelly, and her illness can be deemed as a circumstance that was beyond the control of Boris. The fact of the case clearly says that Nelli was suffering from illness and to pregnancies which were beyond the control of the applicant and according to the general rule there was an existence of the genuine relationship between the applicant and his partner. According to the migration act there has to be a genuine relationship that will become a base for all the partner visa applications which must be born into the mind by the administrative appeal Tribunal while providing a grant for partner visa application to Boris. According to sub-clause 8 20.211 (2)(d)(ii) refers that the criteria mentioned under schedule III of the migration act must not be applied where the department that is the Administrative Tribunal is satisfied that there are compelling reasons in the case for not applying to the criteria14. So, it is requested to the department to dispense with the criteria and issues related to schedule III in the present case as there are compelling reasons for not applying to the substantive visa within 28 days15.
According to the Migration Act 1994 and the Migration Regulations, the waiver of provision must not be granted to the applicants who had any history of non-compliance or had conducted or state unlawfully in the territory of Australia for a long period and had not made any effort to regularize the status between the partners16. In light of the present facts and circumstances of the case, no such issue can be associated with Boris. Therefore, he must be provided with a grant of partner visa.
According to the guidelines provided by the Administrative Appeal Tribunal17, it has been mentioned that under any situation where the separation can harm the mental health of the Australian child, under such circumstances the application of a partner visa must be granted to the applicant. The fact of the case clearly states that Thomas was not very well during the time of his butt and his situation got stabilized only because of the care provided by Boris to both the mother and the child. Therefore it can be understood that separation from father can cause adverse effects on the mental or physical health of Thomas. Also, the facts of the case provide that body is used to provide financial assistance to take care of the needs of both Nelly and Thomas. Therefore upon the fact of household support provided by Boris made him eligible to apply for the grant of partner visa in the present case.
As it is mentioned that the compelling reasons may differ from facts of different cases so therefore in the lights of the present facts and circumstances of the case the reasons are compelling and compassionate which were beyond the control of Boris and therefore had made him eligible to apply for the application of partner visa.
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