Gautam (Migration)

[2019] AATA 384

Gautam (Migration) [2019] AATA 384 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishal Gautam

CASE NUMBER:  1710726

HOME AFFAIRS REFERENCE:                BCC2016/4298915

MEMBER:Rosa Gagliardi

DATE:23 January 2019

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 23 January 2019 at 2:49pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – visa application lodged out of time – Compelling reasons to waive Schedule 3 criteria – applicant’s presence in Australia to assist sponsor both physically and emotionally – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3 Criterion 3001

CASES

Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 December 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because it was not accepted that there were compelling reasons for waiving the Schedule 3 criteria to enable the applicant to lodge an application onshore.

4. The applicant appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from his putative spouse,

   
   

   Ms Samantha Gautam.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

   Criterion 3001

9. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.  The applicant last held a substantive visa on 24 August 2011.  The applicant remained onshore illegally for a considerable period until he applied for a Bridging visa E on 22 December 2016 in association with his partner visa.  As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. 

10. In passing, the Tribunal asked how the applicant survived in the community without working for over 5 years and he stated that he relied on friends.  The Tribunal is not satisfied that the applicant did not also undertake illegal work during his extensive period of unlawfulness.

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

12. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

13. The Tribunal notes that at the time of application the applicant had provided limited evidence of the existence of compelling reasons for waiving the Schedule 3 criteria.  It was put forward that the sponsor suffered from epilepsy and needed the applicant to be in Australia.  At the time of review, however, the parties provided additional and persuasive evidence of the degree of the sponsor’s epilepsy and consequences, and evidence of her other medical conditions which impact on her daily life.  Further, it appears that since the time the Department made its decision the sponsor’s circumstances have changed substantially in that, other than the applicant, the sponsor does not have anyone to care for her.

14. The applicant suffers from generalised epilepsy as well as Grand Mal.  The risks to her safety of her “difficult to control epilepsy” and the significant interference with the sponsor’s independence have been documented by Professor Mark Cook MD FRACP FRCP (Lond), Neurologist & Epileptologist, in a report dated 22 September 2018.  Professor Cook states that the seizures are aggravated by stress and that her current situation was aggravated by persisting uncertainty about the immigration status of her partner.  He also wrote, “She has become very dependent on her partner for day-to-day activities and to ensure compliance with medication, as well as managing her safety concerns”. 

15. Other reports by Professor Cook detail the struggles the sponsor has had over the years in managing episodes of epilepsy and how she is unable to drive as a consequence.  He has also written that after a seizure she is very dependent on her “husband” (the applicant) for assistance with routine daily tasks, including shopping and that stress, sleep deprivation and overtiredness are important triggers.  Professor Cook confirmed that the applicant helps manage all these aspects of her health.

16. A detailed report has also been provided by a Consultant Neuropsychiatrist, Dr Patrick O’Brien, St Vincent’s Hospital, dated 3 September 2018, which also refers to the sponsor’s difficulties with depression which together with her epilepsy have been a problem for at least over the last 15 years.  Dr O’Brien has written, among other things:

    …Family relationships are a little complicated in that though she is closer with her sister who has a history of anxiety and depression herself, things are more complicated with her brother who has an erratic mood and ADHD and who has had behavioural problems for a long period of time.

    Unfortunately, her dad died of lung cancer, presumably with metastatic disease to his brain and had nine months of palliative treatment.  The children were not prepared for the poor prognosis of this until two weeks before he died.  He unfortunately had a head injury two days before his death whilst in Sam’s care and she blamed herself for a good four to five years after this.

    Things were complicated further when her brother had a motor vehicle accident, was airlifted to The Alfred with problems of head injuries and erratic behaviour since the age of 18, and he has needed ongoing surgery since that time.

    Mood has been on and off a problem and it took four years for her mood to stabilise after she was 14.  When she was 23, she was in a relationship in which her ex-partner was emotionally manipulative and playing games with her, unfaithful and then repentant but unreliable, and this lasted two years until Sam herself, at the age of 23, decided she wanted to move out and broke up the relationship and she noticed a dramatic improvement in her mood at that time.  There has been one self-harm attempt when she was going out with this ex-partner at the age of 23, by overdose, but nothing since that time and no intent since…

17. The Tribunal notes that Dr O’Brien also refers to some tensions within the marriage in that when the sponsor becomes agitated the applicant feels helpless and does not know what to do.  Medication appears to have assisted the sponsor in this regard.

18. A report by a Clinical Neuropsychology Registrar, Lib Yin Wong (which the Tribunal notes is undated and not on letterhead but the Tribunal does not doubt its reliability), refers to the applicant experiencing internal distress and that much of the time she lives with a sense of anxiety and dread.  It is recommended that the sponsor pursue counselling as well as exercise and relaxation to relieve stress and anxiety.

19. The Tribunal asked the sponsor at hearing whether, in the circumstances, anyone in her family could look after her.  The sponsor stated that her sister was now living in Tasmania and that her brother had his own difficulties (as documented) and that he was not in a position to assist her.  In terms of her mother, she had recently lost her second husband to cancer. Her grief response had been to embark on a travel plan that would mean she would be away for a significant period.  The sponsor stated that her mother was barely able to look after herself at the moment, let alone her. 

20. Given the sponsor’s support structures apart from the medical professionals treating her and the applicant are few, the Tribunal is persuaded that the applicant’s presence in Australia to assist the sponsor both physically and emotionally, constitutes compelling reasons for waiving the Schedule 3 requirements.  The sponsor is working four days a week when she can and she attributes this to the support of the applicant.  When queried as to why the applicant was needed if she was at work, the sponsor stated that she felt safe at work because she had people around her who knew how to respond to her seizures, but immediately they would call the applicant who would collect her and drive her home.  She stated that her work place was flexible and understanding of her condition.

21. Both parties also gave credible and consistent evidence that in some instances when the sponsor has a seizure, possibly Grand Mal, she is unable to perform simple tasks such as feeding herself because she would lose the ability to use her hands.  They both also gave credible evidence that the sponsor could not be medically treated in India in the way she was in Australia as ongoing medical costs could be prohibitive and the sponsor would lose access to Professor Cook who has managed her condition over many years.

22. The Tribunal considers that the applicant’s conduct in remaining in Australia unlawfully for a lengthy period is inexcusable.  At no time did he approach the immigration authorities to regularise his status after his student visa was cancelled in 2011 for, he claims, lack of funds.  But for the compelling nature of the evidence about the sponsor’s condition which outweighs any of the self-serving conduct of the applicant, the Tribunal would have reached a different conclusion.

23. 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).

24. 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

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

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

    Rosa Gagliardi
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

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

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

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

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

    (c)if the applicant:

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

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

    whichever is the later of:

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

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

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

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

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

    3003

    If:

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

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

    (i)       an illegal entrant; or

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

    the Minister is satisfied that:

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

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

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

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

    (ii)      any subsequent bridging visa; and

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

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

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

    3004

    If the applicant:

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

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

    the Minister is satisfied that:

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

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

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

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

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

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

    (B)any subsequent bridging visa; and

    (f)either:

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

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

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

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