Gureet Singh (Migration)

[2021] AATA 5068

Gureet Singh (Migration) [2021] AATA 5068 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurjeet Singh Gureet Singh

CASE NUMBER:  1918428

HOME AFFAIRS REFERENCE(S):          BCC2018/3206007

MEMBER:Nicholas McGowan

DATE:19 November 2021

PLACE OF DECISION:  Melbourne

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

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

Statement made 2:49pm on 19 November 2021

CATCHWORDS:

MIGRATION – Partner (Class UK) (Subclass 820) (Spouse) visa – whether the applicant satisfies Schedule 3 criteria – application was made more than 28 days after last substantive visa held ­– waiver of criteria ­– decision under review remit with direction
PRACTICE AND PROCEDURE – reconsideration of an earlier decision made by the Tribunal – earlier decision was to affirm – request to reopen the matter – Tribunal exercised its power to reconsider its earlier decision

LEGISLATION:

Migration Regulations 1994 (Cth), Schedule 2 cl 820.211, Schedule 3

WRITTEN STATEMENT OF DECISION AND REASONS

1. On 24 August 2018 the applicant lodged applications for subclass 820/801 visas on the basis of his relationship with Carol-Ann Bernard who is the applicant’s Australian citizen partner (and sponsor for the visas).

2. On 2 June 2019 a delegate for the Minister refused to grant the applicant the visas on the basis the applicant did not satisfy the Schedule 3 criteria or the ‘waiver’ available under law. 

3. At the time (2 June 2019), the applicant applied for the subclass 820/801 visas the applicant was required under law to hold a ‘substantive visa’. The applicant did not (this aspect is not in contention). Accordingly, the Minister’s delegate found the applicant did not meet the Schedule 3 requirements, or the Schedule 3 ‘waiver’ provisions which (in effect) allow an applicant to have a partner visa application considered onshore, rather than requiring an applicant to go offshore.

4. On 9 July 2019 the applicant appealed the visa refusals to this Tribunal.

5. In this matter, the Tribunal notes the applicant and sponsor are not represented in respect to the review.

6. The matter was constituted, and a hearing conducted by this Tribunal on 4 January 2021, at which the applicant and his sponsor provided oral evidence.  A decision was published on 4 January 2021.

7. On 15 January 2021 the applicant wrote to this Tribunal expressing concerns in respect to the hearing conducted 4 January 2021. The applicant wrote subsequently, including most recently on 3 November 2021 with a specific request to re-open the matter.

8. The Tribunal considered the request, as it is appropriate to do so.

9. The Tribunal considered whether there were any difficulties experienced during the Tribunal’s hearing conducted 4 January 2021, and in particular the proceedings as interpreted (through an interpreter provided by this Tribunal) and including the applicant’s responses to questions asked by the Tribunal.

10. The applicant’s initial post-hearing concerns were not raised directly with the Member when they were first provided. At that time an initial request for a re-opening was denied in the absence of that information. When the letter from the applicant was later brought to the Member’s attention, the Member reviewed the audio recording of the hearing conducted 4 January 2021. Having considered the matter carefully, the Member is satisfied that a level of confusion did occur during the hearing such that it denied the applicant the opportunity to fully present all his arguments before the Tribunal. While inadvertent, at one point during the hearing the interpreter explicitly asked the applicant to “cut” (that is, reduce) his oral evidence, which the applicant did. Although it appears what was sought from the interpreter was that shorter sentences be provided by the applicant to allow for accurate interpretation, ultimately the Tribunal has concluded the direction resulted in the oral evidence of the applicant being truncated. As a direct consequence, the applicant’s arguments and oral evidence in respect to his claims of compelling reasons cannot be said to be complete.

11. In addition to the above, it is clear to the Tribunal Member that an integer of the applicant’s claim in respect to his not being able to return to his own country because of familial difficulties had also not been considered. They were, in the applicant’s opinion, a central circumstance advanced by him in respect to the Schedule 3 waiver. In the Tribunal’s assessment, this was an omission on its part, which could most appropriately and fairly be remedied by re-opening the matter, which this Tribunal has done given the clear jurisdictional errors identified above, and including, not considering a relevant claim.

12. At the second hearing into this review (conducted on 18 November 2021) the applicant, with the assistance of an interpreter, discussed the parties’ present situation and circumstances.

13. The applicant was able to share with this Tribunal that he and his sponsor are now married and have not only been in the relationship for some six years but advise that it is now a married relationship.

14. During the hearing the applicant discussed with this Tribunal the parties’ present financial situation and circumstances, including his reliance upon his sponsor for financial support.

15. The applicant was also provided with an opportunity to outline and expand upon the difficulties he has had with his family abroad.

16. In addition to the above, the applicant provided oral evidence at the Tribunal’s hearing which illustrated to this Tribunal the high priority both he and his wife (the sponsor) presently place on improving their health and well-being, including their efforts to have a child together. The applicant discussed their efforts to conceive, including seeking medical advice in respect to IVF treatment.

17. Throughout both hearings the applicant’s oral evidence was spontaneous, candid, and consistent throughout. The sponsor’s oral evidence provided earlier was also considered spontaneous and sincere and was expressed candidly and therefore genuinely.

18. Accordingly, the Tribunal found both the applicant and sponsor to be credible witnesses and their oral evidence reliable for the reasons given. 

19. Post-hearing (19 November 2021) the applicant has provided a copy of his marriage certificate with some photographs of the wedding occasion to follow. These pieces of evidence were discussed during the hearing conducted 18 November 2021, and a copy requested by this Tribunal. The wedding, according to the applicant’s oral evidence was a large celebration with many friends and family in attendance. Pertinent documentary evidence will be shared with the Secretary of the Department as the Tribunal is required to do under the Act, particularly as much of the documentary evidence speaks to the ongoing and genuine nature of the parties now married relationship.

20. Having considered the parties’ oral evidence, provide previously and including at the second hearing conducted by this Tribunal on 18 November 2021, which when taken together with all their documentary evidence, has satisfied this Tribunal that the parties are in a genuine and continuing (now) married relationship.

21. And so, this Tribunal turns its mind to the critical question before it. Are there ‘compelling’ circumstances such that this Tribunal is satisfied it should apply the schedule 3 ‘waiver’?

22. The Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of a ‘waiver’ provision, reflects law-makers recognition of the hardship that may result in circumstances where an unlawful non-citizen seeks to apply onshore for a residence on partner grounds, but would otherwise be forced to leave Australia and apply offshore. Relevantly, Clause 10 – Schedule 2, Part 820 (Spouse), in the Explanatory Statement to the Statutory Rules states:

23. “It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.”

24. At the time of this decision, the applicant and his sponsor have been in a partner (and more recently married) relationship for some six (6) years.

25. The duration of the applicant and his sponsor’s relationship is entirely consistent with a circumstance law-makers envisaged may give rise to the ‘waiver’ (including importantly the continued emotional support the applicant provides his sponsor as outlined by her previously), and well in excess of the ‘long-standing relationship which has been in existence for two years or longer’ referred to in the Explanatory Statement as detailed above.

26. Given all the above, the Tribunal finds the longevity of the applicant and sponsor’s partner relationship is a circumstance which is a compelling circumstance in this matter. Some three (3) years have now passed since the applicant applied for the visas, and since that time, he has married his sponsor, their married relationship and mutual commitment continues, they have established and maintained a well-established home and life together and they have shared goals and aspirations for their future together.

27. Given all the above, it follows that the applicant satisfies clause 820.211(2)(d)(ii).

28. Further, given all the above, the appropriate course is to remit the applicant’s subclass 820/801 visa applications to the Minister for further consideration with the finding the applicant meets clause 820.211(2)(d)(ii).

    Statement made in Melbourne on Friday 19 November 2021 at 2:49pm

    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.