Another appalling decision by a member of the Administrative Appeals Tribunal
Commentary by Visa Plan AAT Specialists
In relation to the subclass 820 application, an applicant who is not the holder of a substantive visa at the time of application must meet certain criteria under Schedule 3 to the Migration Regulations. With limited exceptions, an 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.
In this matter, it was not in dispute that the applicant did not meet the Schedule 3 requirements, but contention arose as to whether compelling reasons existed for not applying these criteria. It was therefore incumbent on the Tribunal to ascertain whether grounds existed for waiving Schedule 3.
Under common law, reasons for said waiver ought to be sufficiently convincing to move the decision-maker to exercise his or her 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 these requirements: MZYPZ v MIAC  FCA 478 at ; Babicci v MIMIA (2005) 141 FCR 285 at .
It is, therefore, necessary that the applicant demonstrates circumstances of sufficient weight such as to compel the AAT Tribunal to provide a waiver.
Contentions in Trieu
In this instance, the applicant and sponsor had a child born in Australia. The applicant told the AAT that he understands the importance of a child having his father whilst growing up, which was more clear by reference to his own childhood experiences.
The applicant argued that if he were to go offshore due to refusal of his visa application, the costs of a subsequent offshore partner visa application and the time he would be separated from his partner and child would be detrimental to the health of his family.
Whilst existence of a child is not, in of itself, sufficient to waive Schedule 3, as was found in 1620529 (Migration)  AATA 2236, the existence of a child, when accompanied by a confluence of other factors, may give rise to compelling circumstances nonetheless.
Further to the above, the sponsor, in giving verbal evidence, stated that she feared damage to herself and her son if her husband were required to return to Vietnam. The child was young, and according to the sponsor, required the love and care of both parents. As adduced by the sponsor, the child suffered from eczema, and her husband helped during the night, presumably with managing the child’s condition.
The sponsor also stated that she relied on the financial support of her husband, being the applicant, who had been the breadwinner of the family up until that point. The sponsor said she had suffered from depression after the birth of the couple’s son and that she would need her husband by her side for emotional support.
The sponsor further stated that during the period she and the applicant may be separated, should their AAT appeal fail, they would not know when the applicant, or perhaps the entire family, would be able to return to Australia. The sponsor described herself as a “weak woman” and that she needed her husband to support her. The sponsor said that it was her wish for her husband to remain in Australia to support her.
The sponsor indicated that she lived only with her son and the applicant and that her relatives live a significant distance away from her residence. The sponsor further clarified that she saw her other Australian relatives only infrequently, as her parents were aged, and her siblings lived some distance away from her residence, further highlighting the sponsor’s lack of a support network, should she be separated from the applicant.
Further verbal evidence was provided by the mother-in-law and a friend of the applicant, with both testimonies attesting to the genuineness of the sponsor’s relationship with the applicant and the applicant’s status as a supportive father and husband.
Considerations by the Member of the AAT
In response to the above claims, the Member saw fit to regard the sponsor’s intention to accompany the applicant to Vietnam as ameliorating any claimed physiological detriment posed to the sponsor. More egregiously, most other claims of the applicant were largely dismissed by the Member, citing the ability of the sponsor and applicant to take “measures” to “mitigate” any detriment or risk, yet providing no further guidance on how the Member came to such an opinion or what “measures” were expected to be open to the sponsor for this purpose.
Among the more puzzling of these statements was the Member’s commentary on the risk posed to the sponsor and her child by international travel during the COVID-19 pandemic.
It was opined by the Member that “further measures” could be taken by the parties to mitigate the risk of contracting the virus whilst relocating to Vietnam. Any financial detriment arising from emigration was similarly deemed capable of mitigation through “measures”. On all claims, the Member appealed to unidentified “measures” as mitigating factors upon which all claims of the sponsor could be dismissed.
Finally, the nature and duration of the relationship in question were found by the Member to produce no compelling circumstances. The existence of a dependent child and manifest genuineness of the relationship being given seemingly little to no consideration by the AAT Tribunal
Visa Plan’s Commentary
In relation to the aforementioned decision, it is important to first consider the paltry policy advantages associated with the refusal of an application of this type. In essence, refusal to waive the aforementioned schedule 3 criteria serves only to prejudice the welfare of two vulnerable individuals, one being a minor and the other being a financially dependent sufferer of mental illness.
In practice, the applicant will be required to proceed with an offshore Subclass 309 application, for which he will be required to remain outside of Australia for a significant period of time. Whilst safeguarding the integrity of the Australian migration system remains an important consideration, where the practical effect is merely to send the applicant offshore for two years, the immediate detriment posed to the sponsor and her child ought to be ascribed significant weight.
This matter is indicative of a general disregard for the welfare of an Australian child and a vulnerable sponsor.
More concerningly, in pursuit of a particular conclusion, the decision of the AAT in this matter demonstrates significant arbitrary hand-waving and vague dismissals of valid arguments posed by the applicant. The decision record itself proves woefully inadequate as a statement of reasons.
All claims of the applicant were largely dismissed on the grounds of hypothetical mitigating factors, which were themselves afforded no explanation or elaboration by the Member. It was, in the mind of the Member, perfectly acceptable to expect a young family to uproot themselves and relocate to a developing nation in the midst of a global pandemic, paying no mind to the significant costs and risks associated with doing so.
This appalling decision has the effect of posing significant financial and health risks upon a young family, or, at best, separating them, merely to force the applicant to undergo a new application for which he is already manifestly eligible.
We are perturbed by this decision published by the AAT and the disregard it shows to the welfare of vulnerable people. Shame on you, Nicholas McGowan.