Dhaliwal (Migration)

[2022] AATA 589

Dhaliwal (Migration) [2022] AATA 589 (14 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sarbjeet Singh Dhaliwal

REPRESENTATIVE:  Mrs Pragya Gautam (MARN: 1465938)

CASE NUMBER:  2111118

HOME AFFAIRS REFERENCE(S):          BCC2018/2221991

MEMBER:Meredith Jackson

DATE:14 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 14 March 2022 at 12:00pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons to waive criterion – no response to tribunal’s invitation to provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.211(2)(d)(ii), Schedule 3, criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
Hasran v MIAC [2010] FCAFC 40
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 23 May 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 visa applicant did not satisfy cl 820.211 because he failed to meet criterion 3001 of the Schedule 3 criteria, which require that the application must have been validly made within 28 days after the relevant day. In the present matter, the relevant day was a subclass TU572 student visa which ceased on 4 April 2018. The applicant made the application on 23 May 2018. As a result, he did not satisfy the criterion.

4. The delegate duly considered whether there were compelling circumstances that might justify waiving the Schedule 3 requirements, however was not satisfied that the applicant’s circumstances, singularly or cumulatively, were sufficiently compelling to enliven the waiver.

5. The applicant was represented in relation to the review.

6. On 18 February 2022, the Tribunal issued an invitation, pursuant to s359(2) of the Act, to provide information on which the applicant intended to rely to support his claims that he meets the criteria for the grant of a Partner (Temporary) (Class UK) (Subclass 820) visa. The invitation stated that the information should be provided by 4 March 2022. The invitation was sent to the applicant via his representative and stated that if the information could not be provided by 4 March 2022, he may request an extension of time. The letter also stated that in the event that no response was received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. No response was received in the period allowed.

7. On 8 March 2022, the applicant’s representative Mrs Pragya Gautami, wrote to the Tribunal enclosing correspondence she had sent to the applicant on 21 February 2022 and 2 March 2022, seeking contact with the applicant and referring to the Tribunal’s invitation to provide information. The correspondence also requested that the applicant remit the sum of $500 to the representative’s firm, Education Embassy, towards lodgement of the review application. In the correspondence of 8 March 2022, the representative advised that she had been unable to contact the applicant and requested that the Tribunal withdraw her appointment. On 9 March 2022 the Tribunal wrote to the representative acknowledging she had advised that she no longer acted for the applicant and advising that the Tribunal was required, until the withdrawal could be finalised, that correspondence through her must continue by law. The Tribunal copied the correspondence to the applicant via his supplied personal email address. The Tribunal invited the applicant to confirm any change of contact details and/or appoint another representative. At the time of this decision, no response has been received.

8. The review applicant did not provide the information requested in the 359(2) letter within the prescribed period and no extension has been requested. In these circumstances, s 359C applies and, pursuant to s 360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   ISSUES AND LAW

   Scope of the Review

10. The Conducting Migration and Refugee Reviews President’s Direction of 1 August 2018, given under section 18B of the Administrative Appeals Tribunal Act 1975, requires Tribunal members to decide cases as quickly as possible and to facilitate accessible, fair just, economical, informal, quick and proportionate conduct of reviews for the benefit of applicants the Tribunal. The Direction at [8.2] provides that as a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters. The Tribunal notes that the basis of the primary decision is the delegate’s assessment of whether the applicant met Schedule 3 criteria and was capable of meeting cl. 820.211. No substantive consideration was given as to whether the applicant was in a spouse or de facto relationship with the sponsor at the time of application or decision. Accordingly, the Tribunal has confined its consideration to whether the applicant meets the Schedule 3 criteria for the grant of the visa.

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

11. 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)(ii).

12. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application.

13. 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. The criteria are set out in the attachment to this decision.

    Criterion 3001

14. 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.

15. The relevant day is the last date on which the applicant last held a substantive visa. The delegate’s decision records, and departmental systems confirm, that the applicant last held a substantive visa on 4 April 2018. The application for the visa was lodged on 23 May 2018, which means the application was not made within 28 days of the relevant day.

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

    Compelling reasons

17. 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.

18. 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.

19. While compelling reasons are not prescribed in the legislation, the Tribunal is required to consider the circumstances of the present matter when considering whether any exist. The primary decision emphasises that departmental policy is that the provisions of the waiver are not intended to facilitate persons who fail to comply with visa conditions, who deliberately manipulate their circumstances to give rise to compelling reasons, or who can leave Australia and apply for a partner visa outside Australia. The Tribunal accepts those policy parameters for the purposes of this decision.

20. As referred to earlier in these reasons, on 18 February 2022, the Tribunal wrote to the applicant inviting him to provide information on which he intended to rely to support his claims that he met the criteria for the partner visa under review. The applicant did not respond to the Tribunal and as earlier indicated, the applicant’s representative notified the Tribunal that she has been unable to contact the applicant, and that she is no longer representing him.

21. There is no contemporary information before the Tribunal concerning any compelling factors in applicant’s circumstances that may be capable of enlivening the Schedule 3 waiver. However the Tribunal has had the benefit of information on departmental files, provided with the visa application and in from the applicant. This includes a response to departmental correspondence to the applicant of 17 September 2019, concerning whether there were compelling factors for consideration.  Departmental files confirm that the applicant provided a  response on 15 October 2019, in which he stated he did not lodge his partner visa application on time because he made a mistake reading dates. He also indicated he had not been well; and had intended to apply for his partner visa by presenting in March 2018 at a departmental office. He claimed in the response that he had made an “unintentional and inadvertent mistake” and had thought his visa was finishing on 24 February 2018 rather than 4 February 2018. The department provided the applicant several more opportunities to provide information about his circumstances, the last of which was notified to him on 24 May 2021. On 18 June 2021, in a response to the department’s request, the applicant’s migration agent sought, on the basis the applicant was unwell as was seeing a doctor, an extension of time to respond. An extension was granted until 31 July 2021. By the time of the delegate’s decision of 4 August 2021, no response or further information had been received.

22. The Tribunal has carefully considered the Department’s requests, the applicant’s response time extension request and subsequent grant, and taken into account its own efforts, and those of the applicant’s representative, to seek information concerning whether the applicant meets the requirements for a partner visa.

23. The Tribunal has no response from the applicant on which to base a decision, other than the information provided with the visa application and the request for an extension of time, which he did not honour. In the absence of detailed or contemporary information about the applicant’s circumstances at the time of application or decision, the Tribunal does not have before it compelling reasons for not applying the waiver .

24. The Tribunal is not satisfied that compelling reasons exist in the present matter for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl 820.211(2)(d)(ii).

25. There is no evidence before the Tribunal that the applicant meets the alternative criteria in cl 820.211.

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

    DECISION

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

    Meredith Jackson
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

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

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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.