1820052 (Migration)

[2020] AATA 4190

1820052 (Migration) [2020] AATA 4190 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820052

MEMBER:Rosa Gagliardi

DATE:11 August 2020

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 11 August 2020 at 2:33pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – genuineness of relationship – adverse allegations – fear of returning to home country – homosexuality – conservative rural family – sponsor’s mental health issues – longevity of the relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila 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 made by a delegate of the Minister for Home Affairs 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 1 February 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because it was considered that there were no compelling reasons to waive the Schedule 3 criteria.

4. The applicant, given the COVID 19 Pandemic, appeared before the Tribunal on 3 August 2020 by phone to give evidence and present arguments. The Tribunal also received oral evidence from his partner, the sponsor, [Mr A], and several other witnesses, including the sponsor’s mother.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

7. 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).

8. 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

9. 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.

10. Departmental records show that the applicant last held a substantive visa on 5 May 2012.  This application was lodged on 1 February 2016.  As such, the applicant ceased to hold a substantive visa within the 28 days requirement and does not meet Schedule 3, criterion 3001.

    Compelling reasons for not applying criterion 3001

11. 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.

12. 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.

    Allegations

13. The Tribunal put to the applicant and the sponsor that the Tribunal had seen a s.376 Certificate on the Departmental file advising that certain material adverse to the applicant should not be disclosed because it would be contrary to the public interest as it may be disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.

14. The Tribunal considered that it’s natural justice obligations under s.359AA of the Migration Act outweighed the public interest assessment made by the Department, because the information was material to whether there were compelling reasons for waiving the Schedule 3 criteria. In essence, allegations were made that pointed to the applicant not being gay and having entered the relationship with the sponsor for the sole purpose of gaining a migration outcome. The Tribunal explained under s.359AA of the Act, that the information was relevant to the review because if the applicant were in a contrived relationship it would be difficult to see how there could be compelling reasons for waiving the Schedule 3 criteria.

15. The parties at hearing presumed that the allegation was made maliciously by someone known to them who had threatened, among other things, to interfere with the applicant’s migration status.  The applicant and sponsor stated they had been in dispute with a person and they sought the police’s assistance in resolving the matter.  They were in the process of procuring relevant police reports to demonstrate that the allegations were made in a context of serious threats to harm the applicant’s chances of being successful in his bid to remain with the sponsor in Australia.

16. While the Tribunal is not making an assessment about whether the parties are in a genuine and continuing spousal relationship, it has a duty to inquire as to the credibility of the parties to determine whether their circumstances give rise to compelling circumstances to waive the Schedule 3 criteria.

17. The evidence before the Tribunal demonstrates that the applicant has consistently put forward claims of being homosexual and of being in a genuine relationship with the sponsor, [Mr A] as far back as 15 January 2014 when he applied for a Protection visa on the basis of his fear of returning to his home country, India, because of his homosexuality.  The protection visa application was refused by the Department and affirmed by the Migration & Refugee Division of the AAT, on 4 January 2016.  It is apposite that the AAT at the time (and differently constituted) accepted that the applicant held a genuine fear of persecution on return to India on the basis of his homosexuality.  It was not only accepted that the applicant’s fears were well-founded, it was also accepted that the applicant was in a long-term homosexual relationship with the sponsor, [Mr A].  The decision was affirmed because it was considered that the applicant could, however, relocate within his home country where he would not face harm.

18. At paragraph 27 of the AAT’s decision the Member wrote:

    After discussing it at hearing, the Tribunal accepts the applicant may be forced to marry, or otherwise subject to serious harm (either cumulatively or by single incident), should he return to his home area in India.  Based on the country information before the Tribunal, and the accepted claims, I have thus accepted the applicant, from a rural area and with a conservative family, would have a real chance of suffering harm amounting to persecution for reason of his homosexuality, should he return to his home area in India.

19. Further, at paragraph 20, the member wrote:

    After discussing it with him at hearing, the Tribunal accepts the applicant is a practising homosexual in Australia, that he previously engaged in “random hook ups” as he claimed, that his parents and other family members in India still do not know about his sexuality, and that the applicant lives with his new partner [Mr A].

20. This Tribunal from the applicant’s and sponsor’s statements at hearing, together with the findings of the AAT Member assessing the applicant’s refugee claims (and who would have done so in a far more rigorous manner than this Tribunal has been able to do via telephone), accepts that the applicant fears returning to his family in India due to his homosexuality and that he is in a relationship with [Mr A], his sponsor. 

21. It follows that the Tribunal places no weight on the allegations submitted to the Department detracting from, among other things, the applicant’s homosexuality.

Fear of returning to India

1. The applicant’s fear of returning to his family’s home area in India, to wait in abeyance while his Partner visa application is being processed, in itself, constitutes a compelling reason for waiving the Schedule 3 criteria.  At hearing the applicant explained that he was from a traditional conservative Hindu Brahmin family who would force him to marry and produce children to “continue the family heritage”. 

2. Furthermore, he explained that while attitudes towards LGBTIQ persons were changing in the larger centres in India, his particular characteristics in coming from a conservative rural family, meant that he would be discriminated against and possibly harmed.  The Tribunal notes that in 2018, the Supreme Court of India decriminalised consensual homosexual intercourse by reading down Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit.[1]

   [1] Mahapatra, Dhananjay; Choudhary, Amit Anand (7 September 2018). "SC decriminalises Section 377, calls 2013 ruling 'arbitrary and retrograde'". The Times of India.

3. Despite recent political movements in favour of LGBTIQ rights, there remains a significant amount of homophobia present among the Indian population, with around half of Indians objecting to same-sex relationships according to a 2019 opinion poll. Acceptance of same-sex couples was found to be highest among Hindu respondents. 

4. Nonetheless, most LGBTIQ people in India conceal their sexuality, fearing discrimination from their families, who might see homosexuality/other as shameful.[2]

   [2] Bedi, Rahul (5 July 2011). "Homophobia persists in India despite court reforms". The Telegraph (UK). London.

5. The parties argued convincingly that in India they would not be able to live together as a couple.  The applicant for his financial survival would need to return to his father’s home and would be prevented from being seen out in public with the sponsor.  The applicant would also have to hide his sexuality and modify his conduct to ensure he was not identified as being homosexual. 

6. The Tribunal is satisfied that the applicant’s sexuality presents significant roadblocks to the applicant returning to his home country to live as an openly gay man, let alone live with a male partner.

   The sponsor, [Mr A]’s, mental health issues

7. The applicant, sponsor and the sponsor’s mother gave persuasive and corroborative evidence at hearing regarding the transformative role played by the applicant in the life of the sponsor.  [Mr A] has a complex history of severe depression, anxiety and drug abuse stemming from a childhood without a father figure and the responsibility of helping his mother raise his [number] siblings, some of whom have had periods of being in and out of juvenile detention.  [Mr A]’s mother confirmed that he had had to leave school early to make a living to assist her raise her children.  [Mr A]’s mother stated that their situation had also involved homelessness. 

8. To compound the sponsor’s circumstances, as a teenager, he was at home looking after his siblings when a fire broke out in the house they were living in, during which his [younger siblings] were killed.  The sponsor as a young person had been left with major emotional disturbance from this trauma as he had not been able to save his siblings.  [Mr A] then started to misuse drugs to cope with his overwhelming feelings.  Since the applicant came into his life, however, [Mr A] had become stable and was no longer using drugs.  Furthermore, the applicant had assisted [Mr A]’s mother with her own emotional and mental difficulties.  [Mr A]’s mother also gave evidence that the applicant had provided much support to her family during troubled times.  He had also assisted financially, particularly as now [Mr A] was not working.

9. The applicant and the sponsor have settled into domestic life together and as a result [Mr A] is now able to pursue his studies in [Discipline 1].  If the applicant had to depart Australia the sponsor would become vulnerable to falling into depression and anxiety and further, could start misusing drugs again. 

10. The Tribunal accepts that the applicant’s presence in the life of the applicant has provided stability and that were the applicant required to go offshore to wait for his visa application to be processed, the sponsor would experience severe hardship, constituting compelling circumstances.

    Longevity of the relationship

11. The parties met in 2011 and entered into a relationship in 2012.  They then registered their relationship in December 2013.  On any account, the applicant’s relationship with the sponsor is a long-standing one.  As put to the Tribunal by the sponsor were the applicant required to depart Australia, they may have to wait a further few years. 

12. The Tribunal accepts that it is required to take into account the duration of the relationship in making an assessment of whether compelling circumstances arise.  The Tribunal is satisfied that the relationship has been in existence for a lengthy period, and that this matter in itself constitutes compelling reasons for waiving the Schedule 3 criteria.

    Conclusion

13. Overall, the Tribunal is satisfied on the evidence before it that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

15. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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.