Ashish (Migration)

[2021] AATA 1557

Ashish (Migration) [2021] AATA 1557 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Ashish

CASE NUMBER:  1913436

HOME AFFAIRS REFERENCE(S):          BCC2018/3292041

MEMBER:Stephen Conwell

DATE:6 April 2021

PLACE OF DECISION:  Melbourne

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 06 April 2021 at 9:19pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at time of application – sponsor’s anxiety – lack of medical evidence – length of relationship not compelling circumstances – concerns regarding timing of relationship and pregnancy – tribunal’s application of Australian law – compelling reasons – imminent birth of child – sponsor has no family in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, Schedule 3 criteria 3001, 3003, and 3004, cl 820.211(2)(d)

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MHA [2020] FCAFC 7
Waensila v MIBP [2016] FCAFC 32

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 (Cth) (the Act).

2. The applicant applied for the visa on 30 August 2018 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 (Cth) (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 applicant did not satisfy cl.820.211(2)(d) because the delegate found that the applicant did not hold a substantive visa at the time of the application and did not satisfy Public Interest Criterion (PIC) 3001 of Schedule 3. As a consequence the delegate  was not required to consider criteria 3003 and 3004.  Further, the delegate was not satisfied there were compelling reasons to waive the criteria.

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

5. The Tribunal is in receipt of more information than was available to the delegate. Having regard to the decision record dated 23 May 2019, and the information provided by the applicant to the Tribunal, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies the Schedule 3 criteria and if not, are there compelling reasons for not applying the criteria.

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

8. 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).

9. 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

10. 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.

11. The applicant declined to provide the Tribunal with a copy of the Departmental decision record, offering legal reasons for his decision. Nevertheless the written submissions made by his representative take no issue with the applicant’s migration history as set out in the decision record, and the Tribunal does not consider the following summary of the applicant’s migration history to be adverse to him. In short, between 2014 to 2017 the applicant visited Australia via Tourist (FA 600) visas on five occasions. Whilst onshore, on 4 October 2017 he applied for a Student (TU 500) visa, which was refused in March 2018. He sought a merits review of the decision with this Tribunal.  The refusal decision was affirmed by this Tribunal (differently constituted) on 2 March 2020.

12. The applicant’s fifth Tourist visa was his last substantive visa which ceased on 18 October 2017. The applicant was granted a Bridging Visa A pertaining to his Student visa application and a Bridging Visa C in association with his Partner visa application. The Tribunal notes the applicant’s busy, though not unlawful, migration history.

13. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994.  There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994.  There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. 

14. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

15. 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.

16. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

17. The written submissions of the applicant’s representative put forward a number of reasons for the Tribunal to exercise the waiver provisions: namely, the parties’ genuine and long-term relationship; the fact that the applicant and sponsor are expecting the birth of their first child within a few weeks of this decision.  The fact that the sponsor has no family of her own in Australia and is heavily reliant upon the support and care the applicant claims to give her, along with the pre- and post-natal care he states he will give to the sponsor for their first child.   

18. According to the evidence, the applicant met the sponsor on 24 April 2017 and a few months later, they embarked upon a committed relationship, moving in together in July 2017. They married in Australia on 5 July 2019.   

19. It is claimed that the parties provide each other with strong emotional support.  It was submitted that since the start of their relationship the applicant has provided psychological, emotional, physical and financial support to the sponsor, particularly as she has no family of her own in Australia.  It is also claimed that the sponsor has been adversely impacted emotionally by the failure of her previous marriage. 

20. The evidence before the Tribunal includes: a Marriage Certificate in the name of the applicant and sponsor; 888 forms from friends attesting to the genuine and continuing nature of the relationship between the parties; numerous photographs of the applicant and sponsor together in social settings with friends and with the applicant’s family members, including on the occasion of a ‘baby shower’ in anticipation of the birth of their child; recent tax return filings for the applicant and sponsor each naming the other as their spouse; an invoice noting that the parties have joint private health insurance; copies of Westpac Bank statements from September 2018 to March 2021 for an account in the joint names of the parties; a letter from the parties’ landlord confirming the parties’ joint residence; a letter from a social worker; medical correspondence confirming the sponsor is due to give birth on 25 April 2021; and statutory declarations from both the applicant and sponsor.  

21. The Tribunal has considered the applicant’s relationship in its own right and its duration as a reason for the Tribunal to waive the Schedule 3 criteria.  The evidence shows that the applicant met the sponsor on 24 April 2017 and a few months later, they committed to a genuine de facto relationship, moving in together in July 2017. They married in Australia on 5 July 2019.  In her statutory declaration the sponsor speaks about the applicant’s emotional support and his active participation in the pre-natal procedures she attends.  She writes about feeling depressed and stressed at the thought of the applicant potentially having to depart Australia to pursue his Partner visa application offshore.  She expresses concern about her being able to travel to his home country of India due to the COVID-19 pandemic. The fact that her Australian passport shows her place of birth as Pakistan is also a concern for her when considering travel to India.  The long-term, genuine and continuing nature of the spousal relationship between the applicant and sponsor and the latter having no family in Australia were the two main points articulated in support of the waiver being exercised in this case. 

22. The Tribunal has reviewed the evidence before the Department and the Tribunal concerning the parties’ relationship.  The Form 888 declarations from the parties’ friends (including an ex-work colleague of the sponsor and a  doctor who is a family friend of the applicant) all attest to the genuineness of the relationship.  The Tribunal accepts the applicant and sponsor have lived together under the same roof since July 2017 and married two years later, in July 2019. 

23. The Tribunal accepts that the sponsor has a degree of emotional fragility as a result of the failure of her past marriage and, more relevantly, she is fearful and anxious about the  prospect of the applicant being compelled to depart Australia shortly before or soon after the birth of the parties’ first child.  The Tribunal notes that apart from a single letter from a social worker attached to the hospital that the sponsor attends during her pre-natal procedures, there is no other medical evidence concerning the sponsor’s mental health. Indeed the letter from the social worker simply states that the sponsor is receiving support for anxiety relating to her pregnancy.

24. Furthermore the Tribunal is not persuaded that the sponsor has legitimate concerns over her Australian passport recording her country of birth as being Pakistan. According to the Department of Foreign Affairs and Trade (DFAT) most recent Country Information Report[1]

    “Tension between India and Pakistan has continued since independence.[2] [However] DFAT assesses most Christians live day-to-day with low levels of societal discrimination and violence, although incidents of communal violence against Christians have increased with the rise of Hindu nationalism. DFAT assesses Christian converts and activists, and Christians who are involved (or are perceived to be involved) in proselytisation, particularly to Hindus, face a moderate risk of official and societal discrimination.”[3] 

    [1]  DFAT Country Information Report INDIA – December 2020

    [2]  Ibid [2.3]

    [3]  Ibid [3.61]

25. There is no evidence that the factors of concern mentioned in the above excerpt from the DFAT Report apply to the sponsor’s circumstances, particularly as she is an Australian citizen and a Christian. She is neither a Pakistani citizen nor is she a Muslim.

26. Given the paucity of independent professional medical opinion regarding the sponsor’s mental health, and the Tribunal not being satisfied as to the sponsor’s concerns over her country of birth being recorded in her Australian passport, the Tribunal is not prepared to waive the Schedule 3 requirements for a Partner visa for this reason alone.

27. It is a fundamental criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor.  The definition of a spousal relationship relevantly requires that the relationship be “genuine and continuing”. Accordingly, the existence of a genuine and continuing spousal relationship is itself a criterion for the grant of a partner visa.  A compelling reason justifying waiver of the Schedule 3 criteria must involve something other than the basic pre-requisite criteria for the grant of the visa.   A genuine, continuing and exclusive relationship need not, of itself, be a compelling reason to waive the Schedule 3 criteria.  The Tribunal has considered this evidence and the circumstances of the parties’ claimed relationship and finds there is nothing in the parties’ circumstances, neither jointly nor individually that compels the Tribunal to waive the Schedule 3 criteria on this basis alone.  The Tribunal is not persuaded to waive the Schedule 3 criteria simply on the basis of the applicant’s claimed long-term relationship with his sponsor. 

28. As previously mentioned, the applicant and sponsor’s de facto relationship is said to have commenced in July 2017, shortly before they moved in together in late July 2017. The Tribunal notes that the applicant’s last Tourist visa ceased in on 18 October  2017.  Prior to the visa’s expiry, the applicant applied for a Student visa on 4 October 2017. His Student visa application was refused in March 2018 and his review of that decision was unsuccessful before this Tribunal (differently constituted). Nevertheless, the Tribunal accepts that the parties were developing their relationship whilst the applicant was lawfully in Australia and pursuing  legal means to maintain that status. However the Tribunal does not consider that the length and duration of the parties’ relationship in the circumstances of this case is, of itself, a compelling reason for waiver of the Schedule 3 criteria in the circumstances of this case. 

29. The representative’s written submission asserts that Australia’s international obligations favour preservation of the family unit.  Australia is a signatory to the United Nations (UN) Convention on the Rights of the Child (CROC).  Article 10(1) of CROC states that,

    “… applications by a child or his or her parents to enter or leave a State party for the purpose of family reunification shall be dealt with by States parties in a positive, humane and expeditious manner.”

30. It was also asserted that the International Covenant on Civil and Political Rights (ICCPR) applies to the parties’ circumstances, specifically Article 23.1 which emphasises that ‘the family is the natural and fundamental group unit of society.’

31. The implied argument in these submissions seems to be that when exercising its discretion the Tribunal should have due regard to those international conventions to which Australia is a signatory. The Tribunal does not accept there is a legal basis for such an argument. The Tribunal’s primary duty in exercising its functions is to interpret and apply, Australian law, specifically the Act and Regulations with regard to the particular visa that is the subject of its review.

32. As the applicant was not the holder of a substantive visa at the time of application, the issue before the Tribunal is whether he is able to demonstrate that compelling circumstances exist such that the Schedule 3 criteria may be waived for his Partner visa application.  If he is unable to do so then he is expected to lodge a valid Partner visa application offshore on the basis of his genuine and continuing relationship with his spouse, the sponsor. The applicant retains an ability to return and migrate to Australia on the basis of his relationship with his spouse if he is in a genuine and continuing relationship.

33. The Tribunal does not consider arguments concerning the aforementioned international  conventions to comprise in any way compelling reasons for it to waive the Schedule 3 criteria. Such arguments were firmly rejected by the full Federal Court in Singh v MHA [2020] FCAFC 7, see [62].

34. The Tribunal was also directed to the Explanatory Statement to Statutory Rules 1996, No. 75, which accompanied the introduction of the statutory provisions and which offers two examples of circumstances in which a waiver may be justified. One of these examples being any Australian-citizen children from the relationship. The other example proposed is where the applicant and sponsor are already in a long-standing partner relationship which has been in existence for two years or longer

35. It was also asserted that there is a ‘moral necessity’ for him to remain onshore and with the sponsor for the imminent arrival of their first child in a few weeks of this decision. That such a significant event in their spousal relationship should be considered as ‘a forceful and convincing reason’  to justify waiver of the Schedule 3 criteria.  The Tribunal finds no merit in this argument. In fact the Tribunal has considered whether the timing of the sponsor’s pregnancy was an attempt by the parties to increase their chances of success before this Tribunal. Whilst the Tribunal does not discount that possibility entirely, it nevertheless places greater weight on the fact that with the birth of the parties’ first child (who is an unborn Australian citizen) only a few weeks away, it is neither reasonable nor practical for the sponsor to follow the applicant to India, particularly given the uncertainties of international travel brought about by the COVID-19 pandemic.  

36. The Tribunal accepts from the evidence before it that the applicant plays an important role in providing emotional, financial and practical support to the sponsor.  As previously mentioned, the sponsor has no family members in Australia.  Apart from a single letter from a social worker, no medical evidence was tendered specifically relating to the sponsor’s mental health. Nevertheless, the Tribunal is prepared to accept that she is experiencing a degree of stress and anxiety given the significant uncertainty attaching to the applicant’s visa status, coupled with the imminent birth of the parties’ first child.

37. Notwithstanding some concerns the Tribunal has with respect to the timing of the sponsor’s pregnancy, the Tribunal considers the imminent birth of the parties’ first child as well as the needs of the sponsor, as the applicant’s wife and an Australian citizen, to be compelling reasons which ultimately outweigh the Tribunal’s other concerns in this matter.  

38. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

39. 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

40. 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

    Stephen Conwell
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

    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.