1504492 (Migration)

[2016] AATA 4878

1504492 (Migration) [2016] AATA 4878 (21 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJEEV GURUNG

CASE NUMBER:  1504492

DIBP REFERENCE(S):  CLF2014/59859

MEMBER:Chantal Bostock

DATE:21 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 21 June 2016 at 1:14pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Sponsor’s ongoing medical treatment – Employment background – Mental health of sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 820.211

CASES

Babicci v MIMIA (2005) FCR 285
MZYPZ v MIAC [2002] FCA 478
Waensilia v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 18 March 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 April 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because the delegate was not satisfied that compelling reasons existed to waive the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 1 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s brother-in-law, Mr Gurung and a friend, Ms Gurung.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. By way of background, the applicant arrived in Australia in 1990 on a student visa. He met the sponsor, an Australian citizen of Nepalese origin, in 2007 and they married on 12 March 2013. The applicant lodged the partner visa application on 23 April 2014, sponsored by the sponsor.

8. The applicant gave evidence at the hearing. He stated that he regretted the expiry of his visa and his period of unlawfulness in Australia. He was naïve, young and had little money. He was still paying for his mistake. He stated that his last substantive visa expired on 5 July 1997. He first met his wife in July 2007. They were engaged in 2008 and married in 2013. They are currently living together in Granville, where they have lived since May last year. He is due to commence a new job as a casual food and beverage attendant at the Sheraton. His wife works full-time as a registered nurse at Auburn Hospital. The applicant has no family in Australia, His wife’s sister, brother-in-law and nephew live in Sydney.

9. In terms of compelling reasons to waive Schedule 3, the applicant stated that the parties had been married for three years. His wife had [a medical condition for] which she previously had surgery on two occasions. He cared for her pre- and post-operatively while she was bedridden for one week. He cooked meals, did the shopping, took her to appointments and gave her medications, massages and hot water bottles.

10. The parties wish to start a family. Following his wife’s surgery, they were advised to wait for one year before trying to fall pregnant. They tried nevertheless without success, as the parties were conscious of their ages. His wife is almost 40 and he is almost 50.  Almost two years have now elapsed. His wife is scared of surgery and has a low pain threshold. His wife’s usual specialist was not available until July 2016. Therefore he booked her an appointment with another [specialist] at [a] Hospital on 10 June 2016, in order to obtain advice. He was sent off for tests, which showed that there was nothing wrong with him. When asked about the delay between the previous surgery and obtaining further medical assistance in relation to fertility issues, the applicant stated that the parties wished for a normal, natural pregnancy and the parties thought that it would occur. His wife fears pain but he insisted that she see a doctor. She may need more surgery although no further surgery has been booked.

11. His wife was not physically strong. She suffered from [various symptoms]. She was told she needed a [medical procedure] but she was too scared. Because of her [symptoms], she attended the Emergency Department on two occasions, where she was given medication. She is not currently taking medication. The applicant cares for the sponsor. He cooks for her.

12. His wife worked full-time, doing shift work morning and night. She suffers stress arising from her work. She cares for seven patients but has insufficient time to look after them all. She has a difficult patient in relation to whom she has been given counselling by the hospital.  She was not very outgoing and was depressed. She has not been diagnosed with depression and has never seen anyone for her mental health with the exception of the counsellor at work, whom she saw on one occasion.

13. She was fearful of driving long distances. While she has her driver’s licence and drives to work which is nearby, the applicant drives her longer distances. He takes her everywhere, including to see the house they are buying in Toongabbie (see paragraph below), Port Stephens and Parramatta. She fears having a car accident and cannot cope with the stress of driving. She is scared of people shouting.

14. The parties are planning to buy a house. They have paid the deposit on a two-bedroom unit, which is being built and due to be completed in about two months’ time. The parties have paid a 10% deposit of $56 000. The applicant explained that they have not obtained a loan yet because he does not have a permanent full-time job. It was hard for his wife to support him and pay the mortgage. He is hoping that in three months’ time, he will gain a full-time job at the Sheraton. His wife previously obtained a pre-approval in her own name from the Commonwealth Bank of Australia. The parties were unable to rely on his salary as he was being paid cash in hand. The parties are hoping, however, that they can obtain a loan from St George in joint names shortly. He will obtain a pay slip in a couple of weeks, which he hopes will help him to get the loan. He hopes that the bank will approve the loan. If the parties are unable to obtain the loan, they will ask his wife’s parents for financial assistance. His wife has $100 000 in her account. The parties have paid the deposit but they need about $400 000.

15. The applicant stressed that the parties had been in a relationship for over 8 years. He also noted that for the parties, who were both Hindus from Nepal, divorce was a social stigma, although he acknowledged that the parties would be separated and not divorced.

16. His wife needed his emotional and physical support. She is concerned about his residency status, the stress of having a baby and repaying the mortgage. He is always “in between jobs”.

17. Mrs Gurung also gave evidence at the hearing. Her husband was very caring and looked after her. She was a very private person, who shared with him her mental stresses. She was happy with her work as a registered nurse but it was physically demanding and mentally stressful. She received counselling at work in relation to a very aggressive patient. The hospital brought in a psychologist to talk to the staff dealing with the patient and spent an additional 30 minutes with her. She did not find her very helpful.

18. She suffered [symptoms and] her husband always looked after her. He massaged her and cooked for her. Her husband got her panadol and hot water bottles because she suffered [pain] as a result of her [medical condition]. She has not seen a doctor for 2 years because she hated seeing doctors. She should have gone earlier but did not want further surgery.

19. She is 39 years old and wants to have a baby. She has been praying to God and staying positive in the hope that she will become pregnant. She was mentally and emotionally dependent on her husband.  She explained that the [medical condition] was [details deleted] and that a [medical procedure] had been considered but not acted [upon]. Because of bleeding during surgery, [details deleted]. [Details deleted]. She said prayers to try and heal herself and sought to remain positive.  Her husband has pushed her into seeing a doctor on 10 June 2016. Her husband was a genuine, loving and caring man who provided her with emotional and physical support. She was introverted and found it difficult to make friends.

20. Mrs Gurung stated that the unit in Toongabbie would be finished in about two months.  She was stressed about the mortgage repayments. Little things made her stressed. She went to see who her GP to ask to have her hormones checked but her GP was not concerned. The parties have paid a 10% deposit of $56,000. When asked why she was going ahead and buying the unit if she felt stressed about the mortgage repayments, Mrs Gurung stated that she felt pressure to buy the house from friends and family. The expectation was that the parties ought to be settled.

21. Her husband drove around because she was not very confident in traffic. She was introverted and private and shared everything with her husband.

22. Ms Gurung, a receptionist, gave evidence by telephone at the hearing. She has known the parties for nine years and sees them regularly. The parties got married in 2008 and are trying to have a baby. Mrs Gurung (the sponsor), however, suffers from [a medical condition]. The parties have a good relationship and the applicant takes good care of the sponsor.

23. Mr Gurung, a nursing assistant/hairdresser, also gave evidence by telephone. He is married to the sponsor’s sister. He lives very close to the parties and they see each other 2 - 3 times per week. He explained that the parties are buying a house together. His sister-in-law has been sick and her husband has taken care of her. They love each other and should be together.

24. The applicant gave further evidence. He stated that the parties loved each other. They were married late and wished to start a family soon. He wants to look after his wife and lead a decent life. He wants to live without fear of being prosecuted for being in Australia unlawfully.

25. The applicant’s representative made submissions stating that the medical evidence and the sponsor’s ongoing medical treatment illustrated a compelling reason to waive Schedule 3. Furthermore the parties were concerned about the repayment of the mortgage, the purchase of furniture and associated costs. As the sponsor was not in good health, it would be difficult for her to make the mortgage repayments. The Tribunal discussed with the parties the credit quote and proposal submitted to the Tribunal which was in joint names. The applicant stated that the application was based on the sponsor’s salary and at this stage had not yet been approved. Non-residents could not get loans. The parties were confident, however, that the loan would be approved. His job at the Sheraton would be helpful. He had submitted to the broker payslips in relation to his previous work, which he hoped would also help. The Tribunal further discussed with the applicant the parties’ plan to obtain a loan of about $400,000, given the lack of certainty in relation to his residence status. He stated that their family and friends were exerting pressure on them to own a house. The sponsor added that she was also pressuring him to get a loan. The value of the property was decreasing and they would lose money if they did not go ahead.

26. The applicant’s representative stated that the Department’s advice was not to do anything until the visa had been approved. However, this was difficult when people were onshore and needed to lead their lives. The parties had met in 2008, were married in 2013 and in 2016 were still enduring uncertainty about the applicant’s residence status. The parties only had one life to live and wanted to move on.

27. Following the hearing, the applicant submitted  to the Tribunal his employment contract with the Sheraton dated 24 May 2016, a referral letter from the sponsor’s GP “for opinion and management of infertility” and “a grant conditional approval” in the name of the parties dated 24 May 2016.

28. The issue in the present case is whether any compelling reasons exist to waive the Schedule 3 criteria.

    SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

    Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

29. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

30. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

    Criterion 3001

31. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

32. According to Departmental records, the applicant last held a substantive visa on 5 July 1997. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

33. As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.

34. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its 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 the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

35. The parties have made various claims relating to compelling reasons. The Tribunal will deal with each claim.

36. The parties claim that the sponsor suffers from [a medical condition] and that the applicant cared for the sponsor pre- and post-operatively. The parties claim that she may require further surgery. Given that no further surgery is currently booked, the Tribunal is not satisfied that this claim constitutes a compelling reason.

37. The parties claim that the sponsor suffers from ongoing pain [arising] out of the residual [medical issue]. They further claim that the sponsor is not physically strong and suffers from [other symptoms]. They claim that the applicant cares for the sponsor, for example, by cooking, giving her massages, getting her hot water bottles and panadol. Given the medical evidence on file, the Tribunal accepts that the parties’ claim in relation to the sponsor’s medical problems.  The Tribunal, however, is not satisfied that the applicant’s ongoing care of the sponsor amounts to a compelling reason, particularly given that the sponsor works as a nurse at Auburn Hospital.

38. The parties claim that the sponsor suffers from stress and depression. On the evidence of the parties, the sponsor received one-off counselling from the hospital in relation to a difficult patient. Also on the applicant’s evidence, the sponsor has not been formally diagnosed with depression. While the Tribunal acknowledges that the sponsor undoubtedly works in a stressful job, it is not satisfied that her stress and depression amounts to a compelling reason to waive Schedule 3.

39. The parties claim that the sponsor finds it stressful driving long-distances. She is nevertheless able to drive short distances, including to work. The Tribunal is not satisfied that this claim constitutes a compelling reason to waive the Schedule 3 criteria.

40. The parties claim that given their ages, their desire to start a family constitutes a compelling reason to waive Schedule 3. Following the sponsor’s [operations], they claimed that they wished to have “a normal, natural pregnancy” and thought that it would occur. They claimed that the sponsor was reluctant to seek further medical assistance because she feared pain and was reluctant to see doctors. Instead she prayed and hoped to heal herself. The Tribunal does not accept the parties’ explanation for the delay in seeking further medical assistance in dealing with the sponsor’s [health] issues following her surgery in 2013, in light of her [medical] problems, her nursing background and their stated urgency in having children. The Tribunal is not satisfied that this claim constitutes a compelling reason to waive Schedule 3.

41. The parties claim that they paid a deposit of $56 000 on a unit, which will be completed in about 2 months’ time. According to a document submitted to the Tribunal following the hearing, the parties received “conditional approval” from St George Bank dated 1 June 2016. They further claim that it will be too difficult for the sponsor to make the repayments on the mortgage, once they have bought the unit. The parties claim that they must proceed with the purchase of the unit because first they feel pressured by family and friends to settle and secondly, they would lose money due to devaluation of the property, claims which the Tribunal finds unconvincing. The Tribunal is not satisfied that this claim constitutes a compelling reason to waive Schedule 3.

42. The parties claim that they have been married for three years and in a relationship for over 8 years, which constitutes a compelling reason. The Tribunal is not satisfied that the length of the parties’ relationship in these circumstances constitutes a compelling reason.

43. For the sake of completion, the Tribunal notes that it does not accept the applicant’s representative’s submission that when people are onshore, they should be permitted to lead their lives and if necessary, purchase property.

44. The Tribunal is not satisfied that individually or cumulatively there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

45. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

46. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Chantal Bostock
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)     the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.