Kaur (Migration)

[2021] AATA 1933

Kaur (Migration) [2021] AATA 1933 (27 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sarbjit Kaur

CASE NUMBER:  2008749

HOME AFFAIRS REFERENCE(S):          CLF2014/90303

MEMBER:Kira Raif

DATE:27 April 2021

PLACE OF DECISION:  Sydney

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 27 April 2021 at 6:19pm

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 – genuine relationship – sponsor passed away – unable to make a new application offshore – mental health condition – lack of support in India – financial circumstances – length of time spent in Australia – 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
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 Immigration and Border Protection 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 is a national of India, born in October 1984. The applicant applied for the visa on 25 June 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant met Item 3001 and found that there were compelling reasons to waive that requirement. The applicant sought review of the delegate’s decision. In November 2015 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and in April 2016 the Federal Circuit Court remitted the matter for reconsideration. In November 2016 the Tribunal again affirmed the decision under review. Again, the applicant sought judicial review and the matter was remitted by the Court for reconsideration by the Tribunal in May 2020.

3. In March 2021 the Tribunal wrote to the applicant informing her of the key issues that are to be considered in this case. The Tribunal invited the applicant to provide evidence and submissions in relation to these issues. The Tribunal has done so as some of the issues that it considered arose on this review may not have been adequately discussed with the applicant previously and were not the subject of the delegate’s decision. The applicant wrote to the Tribunal on 18 March 2021 requesting the hearing to be postponed, stating that she required more time to gather evidence and referring to her poor mental state and lack of professional support. The Tribunal finds this claim problematic. The Tribunal is mindful that the application for the visa was made in June 2014 and had been through the Tribunal review previously, so in the Tribunal’s view the applicant had more than sufficient time to gather evidence in support of her claims.

4. The applicant appeared before the Tribunal on 27 April 2021 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. 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).

6. 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.

7. 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).

   Does the applicant meet Item 4004?

8. The Tribunal wrote to the applicant in March 2021 identifying Item 4004 as an issue for consideration.  The applicant was invited to provide evidence that she did not have outstanding debts to the commonwealth or that she had made arrangements for repayment. In her written submission to the Tribunal the applicant stated that she relied on her migration agent and others when receiving correspondence and was not familiar with the processes and requests made. The applicant states that she is not aware if she has a debt to the Commonwealth but stated that she was willing to pay it. It is not apparent to the Tribunal why, having received the Tribunal’s correspondence, the applicant had not made inquiries about the possibility of the debt and had not taken steps for repayment, if such a debt exists.

9. In the course of the hearing  the applicant said that she did not have a job and once she is able to work, she can make arrangements to repay. However, the Tribunal is of the view that  Item 4004 requires the existence of arrangements, not an undertaking to make arrangements some time in the future when the applicant feels she is able to.

10. Following the hearing, the applicant provided evidence to the Tribunal of having contacted the Department to make arrangements for repayment of the debt. In the circumstances, the Tribunal makes no finding on this issue, to enable the applicant to make the necessary arrangements for debt repayment.

    Does the applicant meet Schedule 3 criteria?

11. The applicant provided to the first Tribunal a copy of the primary decision record. It indicates the applicant entered Australia holding a Student visa in 2008. The applicant was granted another Student visa in Australia and that visa was in effect until 15 March 2012. The applicant then made an application for another visa, which was refused by the delegate and affirmed by the Tribunal. The applicant sought Ministerial intervention in September 2012 and that application was finalised in December 2012. The applicant then remained in Australia as an unlawful non-citizen for a period of time. The application for the Partner visa, that is the subject of this review, was made in June 2014.

12. The Tribunal finds that the applicant last held a substantive visa when her Student visa expired in March 2012. She was not the holder of a substantive visa at the time she made the application for the Partner visa in June 2014. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).

13. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii). There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that 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.

14. The Tribunal has found that the applicant ceased to hold a substantive visa when her Student visa expired in March 2012. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in June 2014, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

15. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

16. 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.

17. 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.

18. The applicant outlined her circumstances in her evidence to the first Tribunal and in her written submission of 26 April 2021.

19. The applicant provided a number of claims in relation to the existence of compelling reasons. The applicant submits that  she had a genuine relationship with her partner before his death. The Tribunal is prepared to accept, for the purpose of the waiver only, that such a relationship did exist. However, at present, the sponsor has passed away and such a relationship no longer exists. In such circumstances, the Tribunal does not consider that the past existence of a genuine relationship constitutes a compelling reason for the waiver.

20. The applicant claims she is unable to lodge the application offshore given the death of her partner. The Tribunal accepts that unless the waiver is applies and the present application can proceed, or unless the applicant enters another relationship, she will not be able to make an application for a Partner visa offshore. The Tribunal accepts that this may cause considerable hardship to the applicant in the particular circumstances of her case, particularly given her psychological state, her relationship with family in India and the length of time the applicant has spent in Australia.

21. The applicant provided a psychological report which refers to the applicant suffering form severe anxiety, severe depression and stress, affecting her cognitive ability and memory. The applicant states that she has been prescribed depression medication. The medical report from Dr Wang indicates that the applicant has been diagnosed with a number of conditions, including anxiety and depression in 2019. The applicant told the Tribunal that she did not have the money for specialist treatment but her condition became worse, so she had approached a specialist. Having regard to the medical evidence, the Tribunal accepts that the applicant suffers from depression, anxiety and other conditions. The applicant’s evidence to the Tribunal is that she would not have the money to seek treatment in India and submits that there is very limited mental health treatment available in India. The Tribunal accepts that the applicant’s ability to access appropriate treatment would be more limited in India than in Australia.

22. The applicant states that she married a person from a different caste and her family in India did not approve. Her mother warned her not to return home or she would be killed by her father or brothers. The Tribunal does not accept that evidence. Firstly, the applicant told the Tribunal that she has not had any contact with her father or brothers for some years and there does not appear to be any probative basis for the suggestion that they still wish to harm her. The applicant claims that her friends tell her that she may be harmed and anything can happen in her country but in the Tribunal’s view, that is not sufficient to form a probative basis for the applicant’s assertions.

23. Secondly, the applicant’s evidence is that she had travelled to India twice, once during her mother’s treatment and the second time when she learned she would not have a share of the property and she wanted to speak to a lawyer. The applicant told the Tribunal that she stayed in India for about two months but she did not tell anyone where she was staying because she was fearful of harm. The applicant’s evidence suggests that she can avoid harm (even if there was any risk of harm which the Tribunal does not accept) by living away from her family and not declaring her place of residence to her family. The applicant claims that she must live in a familiar area and her family could find her and kill her. The Tribunal does not accept that to be the case. The applicant may live in any area, and even if she lives in the local region, in the Tribunal’s view there is very little likelihood, given the size of the population, that the applicant would be located by family members.

24. Thirdly, the applicant had previously sought a visa on the basis of these claims and she told the Tribunal that application was made on the same basis and refused. The applicant told the Tribunal she was not properly represented, was unfamiliar with the process and did not properly present her case. The applicant submits that if all the information was before the delegate or the RRT, the outcome may have been different. The Tribunal acknowledges that there may have been deficiencies in the applicant’s first substantive visa application but the Tribunal is of the view that the applicant had the opportunity to present her case, she did so to the best of her ability and her claims had not been accepted. Having regard to that information, as well as the concerns set out above, the Tribunal does not consider (for the purpose of this application only) there is a real chance or a real risk of the applicant being harmed by her family upon her return.

25. The applicant claims that her family had disinherited her. The applicant provided to the Tribunal a number of country reports and other materials and the Tribunal is prepared to accept that  if the applicant was to return to India, she would not have family support. The applicant claims that due to the length of time she has spent in Australia, she no longer has friends in India and no family support as she has been disinherited. As noted above, the Tribunal accepts that considerable hardship would be caused to the applicant if she was required to return to India.

26. The applicant refers to the length of time she has spent in Australia and the presence of her friends here. The applicant states that she has no contact with her family in India and has no friends, so her ties to Australia are stronger than her ties in India.

27. The Tribunal has found many of the applicant’s claims not to be of compelling nature. In particular, the Tribunal does not accept the applicant’s evidence that she would face harm from the family in India. Other claims are not, in the Tribunal’s view, of compelling nature on their own, such as the claimed lack of support in India, the applicant’s financial circumstances and the length of time she has spent in Australia. However, the Tribunal has formed the view that the combination of some of these matters are of compelling nature. In particular, the Tribunal accepts the applicant’s evidence that there would be considerable hardship if she was required to live in India because the applicant would have no support and no means to support herself. The Tribunal accepts that given the applicant’s mental health, she would find it difficult to survive without ongoing support of others, which may not be available to her in India. The Tribunal accepts that should the waiver not be applied, the applicant would be unable to make another application for the Partner visa offshore, given the death of her partner. The Tribunal accepts that it would be more difficult for the applicant to access adequate mental health treatment in India, given her particular circumstances. The Tribunal also places weight on the fact that the applicant would be unable to seek another Partner visa offshore. Overall, the Tribunal has formed the view that the combination of such matters does amount to compelling reasons for not applying the Schedule 3 criteria.

28. 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).

29. The applicant provided to the Tribunal evidence of her ties to Australia, including several statements from former employers and friends. The applicant claims she has close personal and employment ties in Australia. The Tribunal acknowledges that evidence but makes no decision as to whether the applicant meets cl. 820.221(2)(c).

    Conclusion

30. 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

31. 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

    Kira Raif
    Senior Member