HARPREET SINGH (Migration)

[2018] AATA 2748

HARPREET SINGH (Migration) [2018] AATA 2748 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARPREET SINGH

CASE NUMBER:  1610310

DIBP REFERENCE(S):  BCC2016/420146

MEMBER:Ian Garnham

DATE:27 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2018 at 11:28am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Spousal relationship – Lodgement date of application – Compelling reasons – Threats from sponsor’s ex-husband – Sponsor’s prolonged travel to home country – Family support in home country – Sponsor’s willingness to pay security bond – Postponement of travel by sponsor – Birth of a child – Decision under review affirmed

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 of a delegate of the Minister for Immigration on 24 June 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The review 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: Subclass 820 (Partner (Temporary)). 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 they did not meet the Schedule 3 criterion 3001 and there were not compelling reasons for waiving the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 17 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his sponsor and wife, Kamaljeet Kaur Mahli.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

7. On 12 May 2017 the review applicant provided a submission[1] and associated documentation.  

   [1] At FF: 64-66 (AAT)

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicant meets the Schedule 3 criteria, and, if not, whether there are compelling reasons to waive the schedule 3 criteria?

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

10.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).

11.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:

12.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.

13.In this case, it is agreed that the visa applicant’s last substantive visa ceased to have effect on 15 March 2012.  In this case this is the relevant day. 

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

Compelling reasons

15.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.

16.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.

Policy considerations:

17.The relevant Departmental policy guidelines are contained in the Procedures Advice Manual (PAM3).  

18.The policy stresses that; …the provisions are not intended to give, or be perceived to give an unfair advantage to persons who:

·Fail to comply with their visa conditions or

·Deliberately manipulate their circumstances to give rise to compelling reasons or

·Can leave Australia for a partner visa outside Australia.

19.In this case the delegate found that the visa applicant had failed to comply with the conditions of their last substantive visa and made no attempts to contact immigration in the extensive period whilst unlawful; 16/03/2012 – 21/01/2016. 

Relevant background:

20.The sponsor is 31yo and has had two previous spousal relationships.  She first married on 13/08/2008 and then divorced on 30/08/2011.  She then married on 26 November 2012 and divorced on 30 June 2015.  She first came to Australia from India on 10/02/2009 on a subclass 572 (Vocational Education and Training Sector) visa that was effective until 17/06/2011.  On 17/06/2011 she was granted a further subclass 572 visa that was effective until 20/07/2012.  On 20/07/2012 she was granted a subclass 457 (Temporary Work (Skilled)) visa that was effective until 01/07/2015.  On 01/07/2015 the sponsor was granted a subclass 186 (Employer Nomination Scheme) permanent visa.  On 09/03/2017 the sponsor became an Australian citizen.

21.The review applicant is 27yo and came to Australia on 11/07/2008 on a subclass 571 (Schools Sector) visa that was effective until 15/03/2010.  On 31/03/2010 he was granted a subclass 572 (Vocational Education and Training Sector) visa that was effective until 15/03/2012. 

22.The review applicant claims that prior to his subclass 572 (Vocational Education and Training Sector) visa ceasing to have effect he was asked by his migration agent to provide further documentation but did not do so because his father was ill and hospitalised and therefore he was unable to pay the required fees.  At the hearing the review applicant said that his father had a heart attack on 14/03/2012 and that he passed away on 14/04/2012.  As a result the review applicant said he went into a state of depression.  

23.He claims that by the time he got back in touch with the migration agent the visa had been refused and his review rights had ended. At the hearing the review applicant said that he then decided that his best option was to continue working illegally and provide funds to his family in India. 

24.He then said that after a time he wanted to return to India and stopped working after 2 years for 1½ years and was supported by friends who he claims he lived with in Point Cook.  He also claimed that he lived in Point Cook all of this time and that for the approximate 2 years that he did work he worked on-call at a 711 in Frankston.

25.The parties claim that they were introduced by a common friend/cousin and they began talking on the telephone.  The sponsor was living in Brisbane at the time and they first met in person on 2 November 2015 when the review applicant travelled from Melbourne and they claim to have spent 2 nights together. 

26.They claim that they planned for the sponsor to move to Melbourne after a trip to India for her brother’s marriage, she was planning to travel to India on 16 January 2016.  On this day the review applicant was picked up by police for a defective vehicle after travelling from Brisbane with his best friend with some of the sponsor’s belongings to relocate to his home.  He was detained by the department (DIBP) and the sponsor postponed her trip to India and travelled to Melbourne to assist the review applicant.

27.On 21 January 2018 the review applicant provided a security bond of $20,000 (paid by the sponsor) and a bridging visa was granted on the basis that he …will apply for a new travel document, purchase a ticket and depart to India. (cl.050.212)

28.On 24 January 2016 the parties married and this application was lodged the next day.  On 27 January 2018 the parties opened a joint bank account and the sponsor departed for India.  She returned to Australia on 9 March 2016.

29.On 15 March 2016 the security bond was refunded to the parties and on 2 January 2017 their first child (Mannat) was born.[2]

[2] At F: 39 (AAT)

30.At the hearing both the review applicant and the sponsor said that the review applicant told the sponsor he did not have a visa before they met in person.  Curiously, the sponsor’s undated statement received by DIBP on 27/01/2016 implies that she was unaware of this:

I was shocked after knowing this.  But then I felt that if Harpreet has accepted me knowing all my past, I should let this factor go so that it didn’t affect our relationship.  I stood by him during this difficult time.[3]    

[3] At FF: 142-144 (DIBP)

31.In the same statement the sponsor says that the review applicant also visited her on 12 December 2015 and they discussed marriage with their families.  They claim to have done so in light of threats by the sponsor’s ex-husband that he would ruin their reputations and threatened harm to their families in India.  The sponsor states that initially the review applicant’s family did not agree to the marriage because of potential harm to him.

32.When I put to the sponsor that it seems unlikely if she was seriously threatened by her ex-husband that she would have travelled to India for 3 months at that time, especially immediately after marrying; she said she travelled to India secretively for this reason.  The review applicant also said that he married the sponsor to protect her rather than to enhance his application.  Quite simply I consider this is untrue, I accept that they may well have been discussing or contemplating marriage in the future, but, based on their own evidence, had not the review applicant been detained the sponsor would have been in India and they could not have married when they did.

33.Indeed in contradiction to the review applicant’s evidence on this point, the sponsor said that they were originally planning to marry in August 2016.  Had the review applicant left Australia as he said he would do in his bridging visa application (see paragraph 27) the parties may have fulfilled this plan.      

34.The delegate was also sceptical about the rapid development of this relationship and the parties’ inability to clearly demonstrate its development in the 2 months prior to lodging the application.

35.I accept that because; the review applicant was transporting the sponsor’s belongings to his home when he was detained, and the sponsor postponed her trip to India and provided a significant security bond to secure his release from detention, that this demonstrates that some sort of relationship existed at that time.

36.Similarly, the subsequent birth of Mannat demonstrates an ongoing relationship between the parties.  When I asked the parties about the strategy behind having a child when the review applicant’s immigration status was uncertain they said they attempted to have a child due to the sponsor’s age.  The parties said that they began trying to have a child when the review applicant returned from India in March 2016.

37.Once again I do not accept that this would have occurred so early in the relationship especially when the sponsor has had two previous failed relationships unless the primary motivation was to give rise to further compelling circumstances.                    

38.I am satisfied that the visa applicant and sponsor have deliberately, significantly manipulated their circumstances in an attempt to give rise to compelling reasons for not applying the Schedule 3 criteria. I am also satisfied that the review applicant’s period of almost 4 years of unlawfulness constitutes a significant breach of his visa conditions.

Putative compelling reasons:

39.In the submission and at the hearing the review applicant and his sponsor put forth putative compelling reasons as to why the Schedule 3 criteria should be waived. They confirmed at the hearing that, if the review applicant is required to go offshore, the reasons may be summarised as follows:

·This will cause a significant negative impact on the review applicant who is an Australia citizen

·This will cause a significant negative impact on the parties child who is also an Australia citizen

40.Firstly, at the hearing the review applicant said that she is not working and dependent on the review applicant for income as she has little savings.  At the hearing the review applicant said he is currently working at a car wash earning $1,000 - $1,200/week.  I have also noted that with the documentation provided, the sponsor receives Family Assistance of approximately $350/fortnight in April/May 2017 rising to approximately $420/fortnight in late May 2017.

41.At the hearing the review applicant said he did not attend pre-natal classes with the sponsor but he did take her to hospital when she went into labour.  He said his mother in law attended the birth and has remained in Australia to help them organise life with Mannat.  I have accessed the sponsor’s mother’s Movement Details and note she arrived in Australia on 02/01/2017 and departed on 14/07/2017.  The review applicant said that he organised the transport capsule and brought the sponsor and Mannat home from hospital 4 days after the birth.

42.The review applicant said that he is attached to Mannat and that he feeds her and changes her nappy. 

43.Due to the passage of time I sought an updated understanding of the review applicant’s family circumstances as Mannat would now be approaching 1½ years and the family are entering a new phase in her care and development.  To this end I wrote to the review applicant on 7 June 2018 requesting specific information about the families current circumstances:

The tribunal shall be making a decision in this matter. The tribunal requires an update of your current circumstances as discussed at the hearing on 17/05/2017.

You are invited to provide the following information in writing:

·Evidence of your current living circumstances including your family income.

·Evidence about your child’s care provision and health

·Information about any relevant changes in you, your sponsor’s or your child’s circumstances

The information should be received by 21 June 2018.

44.In response, on 21 June 2018 the review applicant sent the tribunal a copy of his probationary driver’s licence advising that his current living apartment has changed.

45.This response provides virtually no further information about the current circumstances of the parties and based on the information they have provided I do not consider their circumstances, as I understand them, powerfully drive me to a conclusion that the Schedule 3 criteria should be waived. This is particularly the case as I consider they have grossly manipulated and described their circumstances in an attempt to give rise to compelling reasons to waive the criteria.

46.Furthermore, and despite the statements made by the sponsor[4] and her mother[5] claiming they are subject to threats by the sponsor’s ex-husband in India; I am not convinced that any of the family would be in any danger if they were to all spend a period in India prior to the application being processed.  If this was really the case I do not consider the sponsor would have travelled to India for a prolonged period immediately after marrying the review applicant and lodging this application.  In addition, based on the sponsor’s mother’s actions in respect of Mannat’s birth and early development it is clear that they have significant family support in India.

[4] At F: 56 (AAT)

[5] At F: 57 (AAT)

Conclusion:

47.The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

48.The tribunal is also satisfied that the circumstances of the review applicant do not meet the requirements of the alternative sub-clauses cl.820.211 (5), (6), (7), (8) or (9).

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

DECISION

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

Ian Garnham
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.