Brar (Migration)

Brar (Migration) [2020] AATA 593 (3 February 2020)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rajbir Brar
CASE NUMBER:  1730230
DIBP REFERENCE:  BCC2015/2577382
MEMBER:Rosa Gagliardi
DATE:3 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) subclass 461 visa.
Statement made on 03 February 2020 at 1:08pm
CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) – Subclass 461 New Zealand Citizen Family Relationship (Temporary) – Federal Circuit remittal – application lodged out of time – car accident – father-in-law died – absence of medical/police records – lack of corroborating evidence –mental health issues – session intended to enhance claims – credibility issues – no compelling reasons for delay – not beyond his control – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 461.213, Schedule 3 Condition 3004
CASES
Briginshaw v Briginshaw [1938] HCA34

Elhendy v Minister for Immigration & Anor (2018) FCCA 1140

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 February 2016 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 7 September 2015. The delegate refused to grant the visa on the basis that he did not meet cl.461.213 of the Regulations which given the applicant’s circumstances, requires the Minister to be satisfied that that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control and, among other things, there are compelling reasons for granting the visa.
The Tribunal as it was previously constituted dismissed this case even though notification had been flawed. The Federal Circuit Court remitted the matter to the Tribunal to enable it to hear the substantive issues of the case as relates to cl.461.213.
The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Brar Sehaj Kaur, who is the applicant's wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Part 461 of Schedule 2 of the Migration Regulations 1994 sets out the criteria to be met for the grant of a subclass 461 visa.
At time of application the applicant is required to be the holder of a substantive visa and the last substantive temporary visa held by the applicant was not a subclass 403 or a subclass 426 visa. As the applicant was not the holder of a substantive visa the applicant must satisfy Schedule 3, criteria 3002, 3003, 3004 and 3005. This means that one fails all fail.
The information before the Tribunal demonstrates that the applicant satisfies criteria 3002, 3003 and 3005 of Schedule 3. At issue is whether the applicant satisfies criteria 3004.
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 the grant of 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 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.
Background
The applicant arrived in Australia on 8 October 2009 as the holder of a student visa-TU-572. This visa ceased on 15 March 2012. Further extensions of student visas TU-572 were granted to the applicant onshore until 28 August 2015.
The applicant lodged an application for a New Zealand Citizen Family Relationship (Temporary) Visa (Class UP461) on 7 September 2015. This meant that the applicant did not have a substantive visa at the time of this application and Schedule 3 applied to him.
On 28 September 2015 the Department wrote to the applicant requesting him to demonstrate that there were factors beyond his control as to why the application was lodged after the expiry of his substantive visa. He was also advised that if he was unable to demonstrate that there were no factors beyond his control which prevented him from lodging a valid application whilst he was the holder of a substantive visa, he could not meet the Schedule 3 criteria and his application could not continue to be processed.
On 23 October 2015 the applicant wrote to the Department explaining that his visa was going to expire on 28 August 2015. On 27 August 2015 he was going towards the city of Melbourne to lodge his visa application and had a big car accident and he was at a total loss.
He claimed that because of this incident he was stressed and was not feeling well and his mind stopped working. The issue of his visa vanished from his mind. He also advised that on the next day, 28 August 2015, he was in depression but his partner, Ms Kaur, rang the Department and asked them how she could lodge the application. The Department advised her to lodge the application on 31 August 2015 (Monday) because the visa was expiring on the weekend.
He also stated in his letter of explanation that on Monday morning, when they went to Melbourne Immigration to submit the application, they told him that as it was a de facto application, they could not process it there at the Melbourne Immigration Centre and he had to send it to Sydney Immigration office. He claimed that soon after, the applicant and his wife couriered all the documents to the Sydney office.
On 28 October 2015 an email was sent to the applicant requesting further specific documentary evidence to support his claims of being involved in a car accident.
On 5 November 2015 the applicant sent an email which he received from Woolworths insurance, his Optus phone call records showing that he contacted his insurance on

27 August 2015. He also claimed that no medical assistance was required.
The Woolworths email to the applicant dated 11 September (2015?) states “Hi Rajbir, It seems your vehicle may be a total loss. In the event of such a ruling we would require the following documents: - 10 year driving history of the driver…- Registration papers of the owner of the vehicle; - Bank details of the registered owner…;- Finance payout valid for 14 days…If you could start preparing these documents for us it would assist in streamlining your claim”.
The applicant also sent his New Zealand citizen partner’s phone call records that show two phone calls made to the immigration enquiry line, telephone number 131881, on 28 August 2015. The applicant also stated that his partner went to Immigration on 6 November 2015 to get evidence of their visit to Immigration but she was advised that the evidence can only be made by checking the cameras or they said it was clear they were not accepting the New Zealand de facto application.
On 12 November 2015 the applicant was advised by the Department that the documentation he presented did not constitute factors beyond his control. The insurance email to him dated September 11 was acknowledged but he was advised that although it was his vehicle, there was little evidence to indicate that he was the driver at the time of the accident. The Department also acknowledged that his phone records for the period 13 September 2015 to

15 September 2015, did indicate his insurance phone number was called on 27 August 2015 as claimed. The Department considered that this showed that the vehicle did belong to the applicant but not necessarily that he was the driver. He was also advised that his partner’s phone call record of 28 August 2015 did indicate that contact was made to the immigration enquiry line, twice. However, no evidence was provided of the discussion of this phone call. It was mentioned to him that as stated in the letter sent to him on 23 October 2015, it was highly unlikely that an officer would have advised his partner to lodge the application after the expiry of his substantive visa.
On 12 November 2015, due to the absence of a medical or police report that he was injured or hospitalised demonstrating that he was unable to lodge the application before the expiry of his substantive visa, he was requested to provide, within 7 days, any further additional information and documentation to support his claims. He was also provided with an option to withdraw this application.
At the time the Department wrote its decision on 4 February 2016 the applicant had not provided any further convincing additional documentary evidence to demonstrate that he was personally affected by the claimed accident on 27 August 2015. The Department was prepared to accept that the applicant’s car may have been involved in an accident as per the Woolworths insurance email dated 11 September 2015, however, the Department considered that there was no legal documentation to state the date of the accident or other relevant information. It was also acknowledged that two phone calls were made from the New Zealand citizen partner’s phone on 28 August 2015 to the Department’s general enquiry line. The Department considered, however, that in the absence of any specific information, or further evidence, little weight should be placed on the material before it.
The Tribunal is now required to revisit the application afresh to assess the evidence as a whole.
The hearing
The applicant concurred that he did not hold a substantive visa when he lodged his New Zealand Citizen Family Relationship (Temporary) Visa (Class UP461) on 7 September 2015.
He stated that on 27 August 2015 he was the one driving and his wife was to meet him at Laverton. They were going to the Melbourne office to apply for the visa and he had a car accident. The Tribunal noted that the applicant had not submitted probative evidence that an accident had occurred that day and that he was going to see the Department. He stated that the accident happened on 27 August 2015 at approximately 10.30am. The Tribunal asked whether there was probative evidence that the accident occurred, such as matters of compensation, police attendance and if charges had been laid, given he claimed it was a big accident.
The applicant stated that he did not call the police but he had evidence he called Woolworths insurance and dealt with them over the matter. The Tribunal noted that there was little documentary evidence before it that insurance was actually claimed or approved, for example. The Tribunal noted that if, on the other hand, the accident was minor, there was no evidence that he could not have attempted to call the Department that he was intending to go to lodge his application but that he might be delayed because he had had a minor accident. The Tribunal noted that these were issues relating to his credibility.
The Tribunal noted that it was a legal requirement that police have to attend the scene of an accident if the accident were serious. If he had not called the police then the Tribunal could only infer that the accident was not a serious one, and that there was little to have prevented him from attending Immigration at some point on 27 August 2015 to file his application on time. The applicant responded that his knees hit the front but it was not that big an injury that he needed to go to hospital.
The Tribunal asked the applicant to set out what the accident entailed and the context in which it occurred. He stated that he was driving towards Laverton and on an intersection the light turned yellow and he hit a car in front of him and he ran into it. The applicant agreed that he was at fault. The Tribunal noted that if it was the case that he was at fault, the matter of the accident would have been recorded because it would have been in the interests of the driver of the vehicle in front of him to make a claim against him for any damage to his/her car. The Tribunal asked the applicant where such documentation might be. The applicant stated that he could provide it.
The Tribunal noted that the Department had made its decision several years ago so it was unclear why he had as yet not submitted evidence. The Tribunal expressed concern that the applicant was claiming that he was involved in an accident of such proportions that it would have required attendance by the police but there was limited evidence. The Tribunal was also being asked to accept that the affected driver in front of him made no claim against him. There were no photographs, for example, to demonstrate that there was damage to the applicant’s car which was then repaired.
The applicant stated that when the accident happened he was already stressed but the car was drivable. He called his wife and he was shaking and she came home to see him and what she observed was that he looked mentally disturbed. His wife called Immigration to check to see what could be done. A call was also made to the Insurance company. The migration agent directed the Tribunal to the evidence of two phone calls having been made to the Department on 28 August 2015. The Tribunal noted that this was the day after the accident was alleged to have occurred.
The Tribunal queried whether the applicant’s car was a total write-off. He responded “Yes”.
The applicant stated that on 27 August 2015 he was quite shocked and he could not afford hospital charges as he had visa fees. At that stage his wife supported him a lot. The Departmental officer told his wife that she could file the application on Monday as the weekend was coming. They got their file ready and were informed that the subclass 461 could only be lodged at the Sydney office and he had to attend in person. He stated that had they had the information on Friday they could have driven to Sydney, but because they only found out on Monday, they had no choice. The Tribunal asked why they could not lodge their application electronically. The applicant responded that he was told he had to do it in person or send the file by mail.
The Tribunal noted that the applicant was asking the Tribunal to take things at face value when his account so far had not been cogent. The Tribunal noted that he had given evidence that he was involved in a car accident in which his car had been written off. If that was the case, the Tribunal noted that an assessor would have made an assessment that the car was not road worthy or drivable. The Tribunal also observed that had the applicant experienced such severe shock that he would also have made an attempt to visit a doctor. The Tribunal noted that either he had had an accident and he was driving a car without a licence or he was unregistered and had no right to be on the road, and that is why the applicant was concealing what had actually happened to him. Or it would be open to the Tribunal to find that the event did not occur as claimed given the limited evidence before the Tribunal.
The applicant stated that all the things referred to, he could substantiate with evidence to show he was driving the car and that his car was registered and was roadworthy. The Tribunal stated that the issue was not whether he was registered or driving unlawfully. These matters were relevant in so far as it might explain why he was not prepared to put forward any evidence before the Tribunal.
The Tribunal then turned to the matter of compliance with the applicant’s visa conditions and noted that the applicant had in fact stayed in Australia unlawfully for around a week after his visa ceased on 28 August 2015. The matter was put to the applicant under s.359AA of the Migration Act, stating that the information was relevant to the review because the applicant was an unlawful non-citizen for a period and if the Tribunal relied on this information it would find that as he had breached Australia’s immigration laws he might not meet Schedule 3 criteria – 3004.
The applicant stated that after the he was quite shocked and he had flashbacks of the accident, so those two days were quite stressful for him. His wife supported him and she called the Department and they followed the instructions they were given. The advice they received on Monday upset him even more. The information they received from the Department was not accurate and that added to the situation. When he finally came to know he had overstayed his visa, whatever the reason, he became more depressed. He had difficulty concentrating. The Tribunal asked the applicant whether he ended up going to Sydney to lodge his application and he responded no, they express posted those documents to the Sydney office on Monday.
The applicant stated he was quite down and depressed. His wife supported him and he was able to survive that condition and came out well. Had he received the correct information there would not have been a delay in applying for the visa. He stated that regardless, whatever had happened, had happened.
The applicant recounted that his wife did an online search regarding his symptoms. He was not showing an interest in his daily life or activities so she got him to buy groceries and other activities. He was a cricket player and he had difficulty concentrating. He did not play for two months. When he returned his performance was below par because he could not concentrate. He had accident flashbacks. He was not conscious of what he was doing. For example, if he was in traffic he would have flashbacks. With a lot of input from his wife, however, he was able to come out of this state.
The Tribunal then put to the applicant further information under s.359AA regarding his movement records. The Tribunal noted that when the applicant came to Australia his first visa ceased on 15 March 2012, and on that occasion the applicant obtained a Bridging visa on 7 March 2012; 8 days before the expiry of his visa. The next visa granted to the applicant was a student visa which was due to cease on 27 December 2013. The applicant obtained a Bridging visa on 12 December 2013; some 15 days prior to the expiry of his visa. This information was relevant to the review because it would demonstrate that the applicant had a history of taking responsibility for making sure his status in Australia was in order. If the Tribunal relied on this information it would find that the applicant was not being truthful about why he did not renew his visa on time, particularly in light of limited evidence that he was in a car accident that so disabled him that he was not able to deal with the Department to regularise his status within the requisite period.

The applicant responded that he had followed the rules previously and this time he was late and furthermore his wife’s father had a heart attack. Because of those two things happening at the same time; his wife was worried about her father and they let it go for several days, but he never imagined it would slip out of his hands to submit the documentation late.
The Tribunal asked on what date his father-in-law had a heart-attack. The applicant responded in the same week as his car accident. His wife was also depressed and if she was depressed it was a priority for him to take care of her. The Tribunal asked whether the applicant had any medical evidence of the sponsor’s wife’s father’s heart attack. The applicant stated that they would be able to get the medical records but not through her brother with whom she was now estranged.
Ms Kaur stated that during the time period of application, her father had a heart attack so there was a bit of depression and tension so she got in touch with her friend. She and the applicant were to meet at Laverton station and park her car there to go and apply for the visa together. Then he told her about the accident and he wanted her to go home. Slowly he went home also. She met him at the house but he was driving very slowly and had two stops on the way. It was a bit of a struggle. The Tribunal asked whether the applicant had told her anything about the accident. She stated that she thought that he hit a Range Rover from behind. What he told her was that the other party just wanted their car fixed - they were not interested in the police becoming involved. The Tribunal stated that it seemed strange that the owner of the Range Rover was not concerned about the damage to his/her car.
The Tribunal noted that even if that were the case, and there had been no police involvement, and no injury to himself, it was unclear to the Tribunal why the applicant could not resolve the issue of applying for his visa on that day. The applicant’s wife stated that the applicant had knee injuries and he was having flashbacks and he was stressed. He was shaking and was depressed and he was under a lot of stress. She could not leave him on his own. The Tribunal asked why she had not taken her husband to a hospital. She stated that they did not have Medicare and it would have cost a lot of money. The car was damaged and everything got mixed up.
She continued that there was so much going on. She stated that on Friday she called Immigration and asked them what they could do. They suggested they could apply on Monday. They went to the Immigration office in Melbourne and were told they had to submit the file in Sydney. They were informed that they did not accept copies of documents – they needed original documents.
The applicant’s wife stated that her husband’s health was better now but he did have issues with recall and memory loss with dates and still had a lot of flashbacks. She stated that they could go to a psychologist now. She stated now she was working and she had Medicare and some of the expenses were covered.
Asked who had suggested the applicant’s wife see a psychologist, she responded “my lawyer”. The Tribunal asked how the psychologist could know how the applicant was feeling three years ago. The applicant stated that they told the psychologist how they were feeling three years ago.
She stated that they gave the history of the events and the psychologist was very supportive. They had never spoken to anyone in so much detail.
The Tribunal asked why the applicant was unlawful for 8 days after the expiry of his visa. The applicant’s wife responded that they sent everything on Monday but the Department received it on the 7^thSeptember. The Melbourne office told them they had to submit the application to so they sent it express post. She stated that it may not have been acted upon immediately.
The applicant’s wife stated that the applicant did not have work rights. The Tribunal asked how they survived. She responded that initially he did have work rights, but not on his Bridging visa. She stated that now she was working and his mother was helping them as well. They managed. The applicant’s wife purchased their home in 2017 and they had tenants sharing who paid rent.
The Tribunal asked the applicant to confirm that he had not contravened the “no work” condition on his Bridging visa.
The applicant’s wife stated that they had already been through a difficult time. The big thing was that the applicant was her world. He was her life. They had been in a relationship now since 2013 and her situation was bad because she had been separated in the past. If his visa was not sorted it would give her a lot of anxiety. Her father had died. She did not communicate with her brother so it was hard to imagine her future without the applicant. She stated that he was very loyal to her. Her ex was a womaniser and the migration agent indicated there may have been family violence. The applicant had brought her back to a good condition after that relationship. She also wanted to plan children with the applicant and if he left, she did not know how much time they would have and her life would be stuck - years could pass. The Tribunal asked the applicant’s wife whether she could not visit him overseas. She responded that it was very hard. It was not like living together and being together. She had to pay off the mortgage and had other responsibilities. She wanted to progress as a family. She would feel lonely and depressed without him and it would be very hard. She just wanted progress. She was now 39 years of age.
The migration agent in his closing submissions commended the case of Elhendy v Minister for Immigration & Anor (2018) FCCA 1140 (22 May 2018) to the Tribunal. This case involved exercising the waiver of Schedule 3 criteria. In this case, Judge Emmett found that in respect of a psychologist’s report, the Tribunal had failed to recognise that the applicant’s “anxiety” went beyond the anxious feelings that people in sound mental health would experience if forced to endure a period of separation, and failed to recognise that the applicant had been clinically diagnosed with an anxiety condition that was affecting her mental health.
The migration agent conceded that there was not a lot of evidence about the car accident, but asked the Tribunal to have regard to the case of Briginshaw v Briginshaw [1938] HCA34; (1938) 60 CLR 336 in which the High Court held that where a civil case involves allegations of criminal conduct, fraud or moral wrongdoing which may lead to grave consequences for the defendant, the judicial approach should be a closer scrutiny of the evidence. The agent referred to an interim psychologist’s report. He stated that the Tribunal, according to Briginshaw, ought to have regard to the detriment the applicant and sponsor would suffer if the application was refused.
The Tribunal noted that this being the case, it would have regard to the evidence before it, however, as the situation currently stood there was little evidence before it. The agent stated that there was evidence and they would be able to verify that the collision had occurred and the extent of damage to the applicant’s vehicle. He stated that they would also submit evidence on the parties’ mental health.
The Tribunal granted the applicant a further two weeks (until 18 December 2019) to provide additional information and stated that if there were difficulties in obtaining a psychologist’s report it would grant an extension.
The applicant’s spouse stated that she supported the applicant and needed him. She was so used to life to Australia she could not survive in India. The applicant’s wife stated that she had a son also from a previous relationship.
Evidence submitted at time of review
·Two statutory declarations Forms 888 from witnesses attesting to the genuine nature of the relationship;
·Copy of a statutory declaration dated 10 January 2020, by Somaly Itzstein declaring, “On the morning of 27^th August 2015, I was driving my range rover in Tarneit. As I stopped at the yellow lights at the intersection of Leakes Road/Palmers Road a blue Pajero rear ended the back of my car. The driver was Rajbir Brar. Mr Brar came out of his car and came to see if I was ok, after observing that neither party was injured, we just exchanged both our details and decided to not call the police and settle matters privately”;
·Death certificate for the sponsor’s father, on 30 December 2017. The Certificate states that the cause of death would not be recorded on the Death Certificate but on the Death Register;
·
Report by Ms Khai Lan Wong, Clinical and Counselling Psychologist: Past Psychiatric Nurse, FCCLP, FCCOUNP, MAPS, dated 24 November 2019. The Tribunal considers that it is worth setting out some of the report verbatim. The report is titled “The Psychology Report of Mr Rajbir Singh. Clinical Treatment Report of Mr Rajbir Singh”.

1.     PURPOSE OF THE REPORT
This psychological assessment report sets out the assessment of Mrs Sehaj Brar’s (Mrs Brar) psychological conditions or factors that will cause severe adverse consequences to Mr Rajbir Singh (Mr Singh) marital relationship and their health. The purpose of this report is to help the Department of Immigration and Citizenship – Border Protection to respond to the following questions:
a)    The impact of psychological stigmatization by Mr Singh’s community if he returns to India. Mrs Brar the impact of psychological victimisation by her immediate family and perpetuating the conflicts of a past unsolvable regrettable incident with her brother.
b)    The adverse impact on Mr Singh’s and Mrs Brar’s effort and work on a positive foundation of trust and commitment in their marital relationship, if Mr Singh is to return to India this would be affected. Assessment identifies what factors influence having established in this relationship because so much time has passed and they have been living together for six years
c)     Assess the effects of the following impacts:
i)The adverse impact on Mr Singh’s recovery from trauma and depression
ii)The adverse inmpact on her anxiety and any clinical condition that will be exacerbated by the spouse’s leaving.
iii)The negative impact on her marital (sic) and the risk to Mrs Brar’s mental health if Mr Singh goes offshore and the risk to Mrs Brar’s psychological health and be separated from Mr Singh.
2.CONSULTATIONS
Mr Singh attended 3 sessions of assessment on 30^th October 2019, 8^th November 2019, and 17^th November 2019. Mrs Brar attended on attended one individual sessions (sic) on 19^th November 2019 and joint couple sessions on 23^rd November.
Mr and Mrs Brar will continue counselling for management of anxiety related to their anxieties about their current visa status and learn skills to cope with anxiety, stress and negativity in the face of life stressors.
3.SOURCES OF INFORMATION
A referral letter was provided by Mr Anthony Robinson from AR Lawyers that
Mr Rajbir Singh applying for a spousal visa.
The information in this report is gained from direct observations of the client during clinical and counselling interviews (sic) Mr Singh and Mrs Brar.
The report is requested from her legal representative Mr Anthony Robinson on 30^th October 2019.
….
Mr Singh
….

Reliability Statements Based on client self report: On the basis of the observations Mr Singh appears to state his facts clearly his behaviours did not portray he was dishonest. I consider him to be adequately reliable informant as he presents as a quiet and neutral client who attends counselling to help him resolve his social issues and wants affirmation about his plans for the future.
Consistency: The client was consistent in his counselling attendance, cooperative and worked through the processing of issues in helpful ways. His reflections and appraisals of the issues relating to his circumstances post the accident are corroborated by my observations of his self reports…

Accuracy: Mr Singh presented his information in a manner of facts (sic) and showed insight from learning about depression and anxiety associated with post trauma experience.
I have relied on the client’s self report of his history and assumed that it was accurate, and he wants to learn more about his health concerns as he will be a father in future and he wants to take responsibility for his future.
Observation from his self reflection portrays his self concept is that up until the accident and problems struggling with his studies he was quite a resilient, positive and optimistic person before he came to study in Australia. When he described his hopes for the future (sic). His descriptions of events post the accident portrays that he felt lowered self esteem, he was dwelling on his loss of opportunities, he was feeling aggrieved that other student friends have completed their studies and now have a career.
He felt uncertainty and indecision about his plans for his future. Post the accident period he was feeling sad, depressed and ineffectual that he is not successful, he blames himself and his fate about the accident, recalled he was very pessimistic until his wife advised, supported him and he gradually decided he will have to take it a step at a time.
Hardships: Post the accident, he reported feeling depressed and of low self esteem. During these stressful periods he recalled he was prone to be self critical (e.g dwelling on his failures he did not succeed in his plans yet) and pessimistic at the time.
Psychometric assessment was not utilized because it was inappropriate given the limitations and proficiency with the English language to accurately report his psychological state on such a test.
….
5. CLINICAL ASSESSMENT
A. RELEVANT BACKGROUND INFORMATION OF MR SINGH AND MRS BRAR
A. RELEVANT BACKGROUND INFORMATION OF MR SINGH AND MRS BRAR
Personal Context of Mr Singh
Mr Singh is a 30-year-old male from India. He reported he came to study in November 2009 and completed an air condition refrigeration certificate III at Dandenong VALE, Chisholm in year 2010. He stated that he was ambitious and continued with Studies and completed a Diploma of Management at a college in Springvale in 2011. At the time he had completed his studies which set him on a pathway into business endeavours, but was not quite sure what areas of business to pursue. He reached two. Options one in the area of building/construction and that was why he pursued an air conditioning refrigeration course. After completing the Diploma of Management his parents advised him to study in the hospitality area and he was under the pressure of his parents as his parents thought it is an area of business that will lead him to earning good money in India and this was when he extended his study and applied to study a Certificate III In Cookery.
Mr Singh recalls during this time he was rather frustrated and decisive-when his parents were persuading him to pursue hospitality. He recalls at this he was rather depressed he felt his parents made him feel guilty not listening to them.
…

6.          CLINICAL ASSESSMENT OF MR SINGH
C. THE PSYCHOLOGICAL IMPACT OF THE TRAUMATIC ACCIDENT
Mr Singh presented with psychological symptoms that indicates that the symptoms that he endured at the time have developed directly in response to the traumatic event of an accident. He reported initial symptoms such as flashback of memories of the accident, felt withdrawn, and avoided driving until his wife insisted he put himself back with the vehicle, had bad dreams, difficulties sleeping. concentration difficulties and depressed mood. He stated that he was unable to cope and deal with his depressive symptoms and Mrs Brar said then that it was when she noticed that her husband was irritable that she spoke to a friend who told her to google information and she read about PTSD and she read a section on how to help someone who had experienced trauma. Mrs Brar just used that list to be supportive to him and this was when she accompanied and encouraged him to return to cricket games and training. Mrs Brar explained that she increased outings for a number of weekends and let her husband face the traffic and let him enjoy pleasant sceneries. Over three months Mr Singh gradually felt better however he reported that when he is driving on the highway he has occasions when he has a 'jerk reaction' when he sees a big truck/ larger vehicles driving and speeding past him.
Mr Singh’s and his wife (sic) description's are consistent with symptoms of a trauma accident experience and during times of life stressors or event triggers he has flashbacks of memory about the event when this happens he becomes aroused and vigilant. At the time of this assessment this experience has not affected his current functioning, his priorities are focused on building a good life in Australia with his wife. His descriptions are also consistent with an Initial diagnostic Impression during post trauma period, of a Trauma Related Stressor at the time. That, due to his presentations he reported that he was experiencing a discomforting level of anxiety and tension during stress periods, depressed moods, difficulties concentrating, trouble sleeping, withdrawal, irritability and no initiatives to do things until he came out of the depressive symptoms through the support of his wife. He did consult a GP and not seek counselling at the time because he has no access to affordable medical access and he tried to avoid spending money. The other symptoms also consistent with depression and anxiety (trauma feature) he occasionally experiences to a mild degree, obsessional rumination with worrying about his future due to his visa outcome-because he could not tolerate the distress of leaving his wife behind.

7. REASONS FOR LODGING THE APPLICATION OF SPOUSAL VISA LATE
Mr Singh reported he was involved in a serious car accident on the day he was on his way to tile his visa application. His physical injury was assessed and returned home and passed his wife to contact the DIAC. He was quite traumatised by the accident and continued to experience significant anxiety for some months afterwards.
1.     Mr Singh's psychological problems post the accident
He was experiencing significant depression symptoms, depressed moods, severe Concentration difficulties feeling no initiatives to do things and keep up to hobbies he previously enjoyed. For example, he could not retain his concentration to play cricket however he stated he tried the first two weeks after the accident. He reported that two months later he had flashbacks and, he felt he had to make efforts to keep up to cricket playing.
Mr Singh’s student visa was expired on 27^.thAugust 2015. Because the accident happened at 10,30 am approximately on 2.7^t1l August 2015, Mrs Brar phoned the Department of Immigration and. Citizenship (DIAC) to get advice about what to do. On the day of the accident Mr Singh and his wife were supposed to meet at-the city and go to DIAC to lodge their application. After the accident Mrs Brar called DIAC who advised her to do it on Monday and after they went to Melbourne office they were told by an officer that Mrs Brar this application was supposed to be lodged at DIAC, Sydney. They posted the application by expressed post.
Mrs Brar's stated one week before Mr Singh's accident she was very stressed and distressed she received news her father had a heart attack.
ii     Couple's Adjustment and Coping with Life Stressors
Mrs Brar reported for a few years^-they have gone through hardships. Mr Singh has no visa status for work and study status, so she has been working full time as a broker assistant^-to support their mortgage and living expenses: Mr Singh receives financial support from his mother, Mrs Brar stated she appreciates the financial assistance from her mother-in-law as they are both mortgaging a house now. Mrs Brar became teary stated hey coped quite well until her father passed away in January 2018. Since then she was very grieved and distressed as she has never experienced any loss involved actual death in her family and felt very guilty that she was notable to attend the funeral because of financial problems…
REASONINGS AND FINDINGS

At the outset the Tribunal would like to clarify the law in Victoria as concerns reporting an accident. The applicant stated that his car was a write off and the Tribunal considered that in that case the police would have needed to have attended. The Tribunal has undertaken research into this matter and instead finds that:
In Victoria, section 61 of the Road Safety Act 1986 requires that if you are involved in a traffic accident, under certain circumstances you must report it to the police. These circumstances include:
§if a person or animal is injured or has died
§if anyone’s property has been damaged as a consequence of the accident, or
§if the other party involved in the accident does not stop or refuses to provide you with
their particulars (name, address, name and address of vehicle owner, vehicle registration
and vehicle details such as colour and make).
Following an accident, you are required to stop your vehicle, check to see whether anyone is injured and provide them with any assistance you can, and then at the soonest possible occasion, provide your details to all the relevant parties (other driver’s involved, injured parties, owners of damaged property, the police). If your vehicle is un-roadworthy, you must arrange to have it towed.[1]
[1] accessed on 31 January 2020.
From this research it would appear that attendance by police was not critical at the site of the applicant’s accident as there were no deaths or serious injuries. In that respect the Tribunal does not place adverse weight on the applicant not having made provisions for the police to be called after the accident. The Tribunal’s emphasis on the lack of a police report was only in so far as the presence of a police report would have enhanced the applicant’s claims that he was in a serious car accident that caused him to go into deep shock or psychological trauma. A police report is only one of a vast array of pieces of evidence that the Tribunal suggested that the applicant might have provided to persuade the Tribunal that in fact a serious and traumatic event had occurred that had prevented the applicant from lodging his application on time.
Credibility of the applicant – The Minister is satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control
The applicant was in effect asking the Tribunal to make his case for him. Car accidents are typically well- documented occurrences. Even in the most trivial of incidents there would be evidence of: attendance at a repair workshop or panel beater; photographic documentation; quotes and invoices for repairs; claim made against insurance; and evidence of registration with the Written-off Vehicles Register.[2]
[2] accessed on 31 January 2020.
Even before assessing the quality of evidence and limitations thereof, submitted to the Tribunal, there is the fundamental issue of the applicant’s credibility. The applicant kept revising his account to suit the nature of the Tribunal’s questions. The applicant gave evidence that the accident had involved him writing off his car and that Woolworths Insurance told him that might be the case. The evidence before the Tribunal shows that the applicant did contact Woolworths Insurance but it would appear that the applicant was given advice that the car was a write off simply from what the applicant had described to the insurance company. There is little evidence before the Tribunal to suggest that an assessor with Woolworths ever set eyes on the applicant’s car to make such a determination.
The applicant’s and his spouse’s evidence about the applicant having injured his knees was also vague and unconvincing given it has been supported by little medical evidence.
The applicant and his putative spouse are arguing that the accident was so catastrophic to the applicant’s psychological and emotional well-being that he was prevented from following up on, and meeting, his obligations to renew his visa within the requisite time frame. The accident therefore was the claimed trigger for the failure of the applicant to have a substantive visa when he ought to have had. The details of the accident; its proportions and ramifications are therefore critical to the Tribunal’s analysis as to whether the applicant was not the holder of a substantive visa because of factors beyond the applicant’s control, although it was also claimed that the applicant’s wife’s father had a heart attack a week before the accident.
When asked about why the applicant did not seek assistance from a medical practitioner, even a General Practitioner, to assist him with his symptoms at the time, the applicant stated that he did not have Medicare and could not afford it. While the Tribunal is not aware as to whether or not the applicant held a Medicare Card at the relevant time of the accident, the Tribunal does ask how it was that the applicant’s spouse then went on to purchase a property in 2017, only 4 years after the claimed accident and they were simply not in a position to even afford one medical visit to a general practitioner for the applicant to deal with his symptoms and claimed “trauma”. The Tribunal is not convinced that had the applicant been so disabled by his symptoms that were a direct result of a serious car accident that he would not have been able to see a doctor and have had the event documented to show that at the time he did not hold a substantive visa because of factors beyond his control. Further, it appears that the applicant has been obtaining assistance from his mother so it is unclear to the Tribunal why he could not have done so close to the time of the claimed serious accident.
The migration agent at hearing referred to post-traumatic stress suffered by the applicant some 4 years ago now. Post-traumatic stress is a serious condition that is methodically diagnosed by professionals as the disorder goes beyond mere depression and anxiety, although it may have some elements of both. The Tribunal is not medically equipped to make a finding that the applicant on having a car accident in August 2015 did not suffer post-traumatic stress disorder, but at the same time, neither the applicant, his migration agent or indeed his current psychologist, Ms Wong, is in a position to retrospectively diagnose the applicant with post-traumatic stress disorder.
This is particularly so as Ms Wong concedes that she did not undertake any psychometric testing after the applicant was referred to her by the applicant’s lawyer. Clearly, the applicant did not attend sessions with Ms Wong in October/November 2019 for therapeutic purposes but rather to enhance his claims that there were factors beyond his control that led him to not have a substantive visa at the relevant time. This is particularly so as the Department had made it clear that there was a paucity of evidence to support his claims that he had experienced a life changing event that prevented him from lodging his spouse visa application before expiry of his visa.
The Tribunal also has concerns that the applicant and his wife were reading about post-traumatic stress symptoms on the internet and became familiar with terms such as “flashbacks” and other terminology that persuaded the psychologist that the applicant was indeed suffering these symptoms. Ms Wong appears to accept that the applicant did suffer flashbacks and other symptoms consistent with post-traumatic stress disorder simply on the basis of what the applicant and his spouse told her.
Ms Wong also makes it clear that she has relied on the self-reporting of the applicant and observed that she did not think he was “dishonest”. Ms Wong does not challenge the applicant about the symptoms he reported he had in August 2015, and does not explain how the applicant was able to overcome such a serious condition without having sought professional assistance at the time. The Tribunal does not doubt that the support of the applicant’s wife would have provided him with solace and assistance had he been experiencing post-traumatic stress, nonetheless, the evidence given at hearing about the applicant’s recovery, and as reported to Ms Wong, appears to be simplistic.
Ms Wong’s report is also problematic because it purports to explain why the applicant had not lodged his visa application on time – this is beyond the remit of the psychologist, particularly as it is clear that she has been prepared to accept everything that the applicant and his spouse have told her unquestioningly and that the majority of her report is based on the parties’ self-reporting.
The Tribunal accepts that the parties are now feeling depressed and anxious and in seeing Ms Wong did report such symptoms. Nonetheless, the Tribunal is not satisfied that such symptoms suffered by the applicant and his spouse are not a reaction to the narrowing pathway for the applicant to remain in Australia. As such, and for all the above reasons, the Tribunal places less weight on Ms Wong’s report.
In terms of the explanations given as to why the applicant did not seek assistance at the time of the accident, the Tribunal does not find these convincing. Even if the applicant had not had a Medicare Card had his symptoms been as disorienting and disabling as he claims they were, the Tribunal is unable to ascertain why the applicant could not have presented to an emergency ward to seek treatment and organise with the hospital for a delayed payment.
All of these matters lead the Tribunal to have serious doubts that a serious accident occurred on 27 August 2020 which led the applicant to suffer serious psychological detriment that prevented him from attending the immigration office in person to regularise his status. Rather, the Tribunal is concerned that this explanation was confected to explain away the delay in lodging the visa application after it was clear that there were limitations in the evidence submitted.
Further leading to the Tribunal having serious questions about the applicant’s and his spouse’s credibility, is the fact that at hearing they tried to explain away the lack of probative evidence that a serious car accident had occurred, by attempting to minimise the actual impact of the crash saying the applicant was not injured, and that the other party just wanted their car fixed and were not concerned about reporting the matter to the police.
The applicant has now produced a statutory declaration that states that an accident occurred and that the parties just decided to settle matters privately. While the Tribunal accepts, as did the Department, that on 27 August 2015 the applicant was involved in a collision, the Tribunal does not accept that this statutory declaration points to the accident being so serious as to lead the applicant being unable to continue on his journey in either a taxi or by some other mode to the Department to lodge his visa application on 27 August 2015.
The Tribunal also finds that the applicant’s and spouse’s account that they were told by the Department that they could lodge their application later on; on Monday, and that they needed to go to Sydney to lodge, somewhat implausible. Knowing that an applicant’s visa is about to expire and that he or she might become unlawful, the Tribunal finds it difficult to accept that an officer of the Department of Home Affairs would negligently give inaccurate advice. Again, the Tribunal is concerned that these explanations were given after the event to justify why the applicant filed his visa application late. While the Tribunal accepts that the applicant’s spouse spoke to someone at the Department, the applicant has provided little probative evidence of what advice she was actually given. In light of the difficulties with the plausibility about the applicant having been in a serious accident on 27 August 2015, and his credibility overall, the Tribunal is not satisfied that the applicant was negligently advised by the Department and that they refused to accept his application in Melbourne.
The Tribunal considers that it is likely that the applicant was involved in an accident where he ran into someone at the lights, however, the Tribunal does not accept in light of the paucity of evidence, that this event so derailed the applicant that he was unable to function and lodge his visa application such that he was not the holder of a substantive visa because of factors beyond his control.
There is little medical evidence to indicate that a week before the applicant was due to lodge his substantive visa his spouse’s father had a heart attack. The Tribunal only has a death certificate indicating he died in 2018. Nonetheless, for the purpose of this review the Tribunal is prepared to accept that a week prior to lodging the application the applicant’s spouse’s father had a heart attack that distressed her. The Tribunal is unable to see, however, how this event may have led to the applicant being unable to lodge a visa application, particularly when it is claimed that the parties were on their way to lodge it prior to the alleged serious car accident.
The Tribunal therefore finds that 3004(c) is not met and the Tribunal’s inquiry ceases at this point.
It has been submitted that the parties are distressed and traumatised because they will be separated and that the visa ought to be granted. It has also been argued that the parties have been in a long-standing relationship. These are not unreasonable arguments. The applicant’s spouse also stated that she was desirous of having a family with the applicant and was concerned about her fertility, this was even though there is limited evidence before the Tribunal to demonstrate that the parties were attempting to have a family, or that issues with fertility had been medically uncovered. Nonetheless, the Tribunal accepts that the applicant and his wife have such concerns. Similarly, the Tribunal accepts that the applicant’s wife may be estranged from her brother and that this is a hurtful matter to her. The Tribunal also accepts that the applicant’s wife was subjected to abuse by her former partner and that she has not recovered fully from these events.
All the matters put forward about the parties’ circumstances might fall under 3004(d) under the assessment of whether there are compelling reasons for the grant of the visa. The Minister is required, however, to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and there are compelling reasons for the grant of the visa. As the Tribunal is not satisfied that the applicant is/was not the holder of a substantive visa because of factors beyond the applicant’s control, the Tribunal is unable to go on and assess whether there are compelling reasons for the grant of the visa.
As such the applicant does not meet 3004 of Schedule 3.
CONCLUSION
As the applicant does not meet Schedule 3, 3004 the Tribunal is not satisfied that the applicant meets cl.461.213.

DECISION

The Tribunal affirms the decision to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship)(Temporary)(Class UP) subclass 461 visa.
Rosa Gagliardi

Member

[2020] AATA 593

3 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice