Harpreet Singh (Migration)

[2019] AATA 5689

Harpreet Singh (Migration) [2019] AATA 5689 (23 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr. Harpreet Singh

CASE NUMBER:  1905213

DIBP REFERENCE(S):  BCC2016/420146

MEMBER:  Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 October 2019 at 12:57 pm (VIC time)

DATE OF WRITTEN RECORD:                3 December 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 (Temporary)) visa:

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

Statement made on 03 December 2019 at 2:51pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – lengthy period of unlawful non-citizen status – inception of relationship and marriage – Punjabi customs – welfare of Australian citizen children – stress of long period separation – degree of hardship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211

CASES

Waensila v Minister for Immigration and Border Protection (2016) FCAFC 32

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 June 2016 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 October 2019 the Tribunal made an oral decision and gave an oral

   statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for a review of the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) Visa under Section 65 of the Migration Act.

4. The applicant applied for the visa on 25 January 2016 on the basis of his relationship with his sponsor. At that time (Class UK) contained only one subclass, 820 Partner (temporary). The criteria for the grant of this visa is set out in (Part 820) of Schedule 2 to the Migration Regulation. 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.

5. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy Clause 820.211(2)(d)(ii) because you could not satisfy the Schedule 3 requirements and the delegate found there were not compelling reasons to not apply them.

6. The applicant and his sponsor have appeared before the tribunal to give evidence with the

   assistance of an interpreter in the Punjabi language. The applicant was represented in relation to the review by his registered migration agent and he attended the hearing.

7. This matter is before the tribunal because it was remitted by the Federal Circuit Court on appeal. The remittal was by consent and was for the following reasons;

   The decision of [the Tribunal] of 27 June 2018 is affected by jurisdictional error, specifically that the second respondent [the AAT] failed to consider a integer of a claim that there were compelling reasons for not applying the criteria in Schedule 3 of the Migration Regulation and accepting relevantly, that on 12 May 2018 the applicant made submissions to [the Tribunal] in which he claimed that there were compelling reasons for the grant of the visa because, among other things:

   (a) his relationship with his sponsor was of more than two years duration

   (b) The Indian community had accepted the applicant and the sponsor as husband and wife and the applicant and his sponsor represented themselves as husband and wife to their own community; and

   (c) the refusal of the visa would cause deep stress to the sponsor and cause her severe mental breakdown.

8. The Department accepted that the Tribunal;

   (a) did not have regard to the duration of the relationship as a compelling reason

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(b) did not have regard to the claim that the parties had already represented themselves to the Indian community as being in a spousal relationship as a compelling reason and

(c) direct the negative impact on the sponsor as a compelling reason by reference to her financial dependency on the applicant but did not consider the claim or integer of the claim that the sponsor's mental health would be negatively impacted by the refusal of the applicant's partner visa application.

Consideration of claims and evidence.

Schedule 3 criteria

Clause 820.211(2)(d)

1. The question here is does the applicant meet Schedule 3 criteria or should those criteria be waived. 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 Regulation. 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. This is under Clause 820.211(2)(d). It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application.

2. 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.

   Criterion 3001.

3. In order to satisfy criterion 3001 the application for the visas must have been lodged within 28 days of the relevant day. The relevant day is defined in 3001(2). The applicant arrived in Australia on a (Subclass 572) visa on 31 March 2010 which ceased on 15 March 2012. He lodged an application for a further (Subclass 572) (Student) visa on 8 March 2012 and this application was refused on 27 April 2012. He unlawfully resided in Australia from 26 May 2012 until 20 January 2016. Therefore I have concluded that the condition here is not met and for the purposes of the review. The applicant last held a substantive visa on 26 May 2012 and as the visa application was made on 25 January 2016 it was not made within 28 days of the relevant day and the applicant does not satisfy criterion 3001.

   Compelling Reasons.

4. As the tribunal has found that the applicant does not meet the relevant Schedule 3 criteria he is required to consider whether there are compelling reasons for not applying the criteria. 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.

5. Circumstances which constitute compelling reasons for not applying the Schedule 3 criteria can arise at any time including after the visa application is made. This is per the case of Waensila of 2016. When the decision was made by the Department in June 2016 it was not at that time possible to apply the case of Waensila. The tribunal nonetheless considers the circumstances that existed after the time of application to the present.

6. The tribunal does not overlook the fact that the applicant was in Australia as a non-lawful non-citizen for a lengthy period. The applicant said he was aware of his visa status however he was emotionally affected by the poor health of his father. He attempted to prolong his

Case Number 1905213  Page 3 of 5

stay in Australia by making another student visa application but he was unable to do so successfully.

1. The tribunal considers that he was able to earn small amounts of money, some of which he sent back to India to support his family but generally he was a young man who was depressed by his father's health condition. The tribunal noted that both the Department and the tribunal take a very dim view of persons who knowingly remain unlawful and some weight is placed on this conduct of the applicant.

2. The tribunal has also had regard to the decision of the tribunal previously constituted and notes that the basic factual circumstances outlined in that decision are accurate in terms of the arrival of the applicant, the meeting of parties and the compelling reasons that were put forward to the extent that they had been. Nonetheless the tribunal has taken a different view to the earlier constituted tribunal in relation to the inception of the relationship and the marriage of the parties.

3. The tribunal finds that the applicant and the sponsor did not consider the period between the inception of the relationship and the marriage to be a short period and culturally speaking, the tribunal is inclined to agree when considering Indian and specifically Punjabi customs.

4. Therefore the tribunal does not consider the circumstances of the parties to have been manipulated for migration purposes. The tribunal also notes now that the relationship is of several years duration. The tribunal notes that the parties married in January 2016 and accepts the parties' consistent evidence that they have lived together continuously since then. They were consistent about living at four different addresses in Melbourne and there have been no gaps in the relationship.

5. The tribunal notes that the Indian community has accepted the applicant and the sponsor as husband and wife. There are declarations on file to this effect. There are photos on file of the parties and their children in various family situations. The applicant's mother-in-law attended the hearing to assist with the parties' children and furthermore, the tribunal has considered possible financial dependency upon the applicant and vice versa, possible financial dependency upon the sponsor and finds that the parties are not people of means, they rely on the limited income of approximately AUD1,000 per week of the sponsor as a personal care worker. I find that the applicant and the sponsor would experience more stress than their currently high stress levels if the application in this case were refused and the applicant had to return to India going offshore to make application.

6. There is not expert evidence before me in detail on this point. The tribunal notes that there are birth certificates of two children born to the parties in Australia. These are Australian citizen children. They are both noted on their mother's Medicare card, which was provided. The tribunal finds that the applicant is a hands-on father. The parties provided consistent evidence about the duties he does with the children and around the home and the tribunal accepts this evidence.

7. The tribunal finds the applicant is not working at present. The parties receive Centrelink payments for parenting and that they struggle to make ends meet. The sponsor will return to work after approximately six months maternity leave in January 2020. She is effectively the breadwinner and despite support from family in Australia she would struggle to both work and look after two young children without the assistance of the applicant.

8. With wait times probably in excess of two years for making an offshore partner application, this would be a very stressful and possibly untenable situation for this family.

Case Number 1905213  Page 4 of 5

1. The tribunal has weighed up the evidence to do with the unlawful period of the applicant but nonetheless finds that there are compelling circumstances in this case for not applying the Schedule 3 requirements and these have become more apparent with the passage of time than was the case when the tribunal was previously constituted.

2. The existence of a long term relationship does not in itself mean that the tribunal had to find there are compelling reasons. The key factor here is the welfare of Australian citizen children and potential heavy stress on an Australian permanent resident should the parties be separated for a period, and this kind of hardship amounts to compelling circumstances in this case.

3. Although there has been significant evidence submitted to the tribunal about the genuineness of the relationship, the tribunal's decision is not specifically about whether the relationship is genuine or not, nonetheless the tribunal notes that when turning its mind to this matter it does not have any specific concerns on that point.

4. The tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets Clause 820.211(2)(d)(ii).

5. 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

6. 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 (Temporary)) visa:

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

   Justin Meyer
   Member

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