Khehra (Migration)

[2019] AATA 4918

Khehra (Migration) [2019] AATA 4918 (22 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagandeep Singh Khehra

CASE NUMBER:  1733276

DIBP REFERENCE(S):  BCC2014/2432792

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 August 2019 at 12:15 pm (VIC time)

DATE OF WRITTEN RECORD:                16 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 16 September 2019 at 11:32am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Federal Circuit Court remittal – relationship broke down – separated for 12 months – anonymous allegation – contrived relationship – no weight to allegation – health of mother – no compelling circumstances – decision under review affirmed

LEGISLATION

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 January 2015 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 22 August 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.

3. STATEMENT OF DECISION AND REASONS

4. This is an application for a review of a decision of the delegate for the Minister of Immigration – a visa application of 25 September 2014 and the decision was made by the Department on 23 January 2015 and it was the refusal under section 65 of the Migration Act.

5. The applicant made an application on the basis of his relationship with his sponsor and at that time the (class UK) contained only one subclass, and that was the (subclass 820) Partner (temporary). The criteria for the grant of the visa is set out in Part 820 of Schedule 2 to the Migration Regulations and the primary criteria must be satisfied by at least one applicant, other members of the family unit, if any – and there are not any – who are applicants for the visa, need to satisfy only the second criteria. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy at clause 820.211(2)(d).

6. The tribunal has heard this matter in its first instance, differently constituted, and made a decision on 21 April 2016 affirming the decision of the delegate to not grant the applicant a Partner (temporary) (class UK) visa. The applicant appealed this matter to the Federal Circuit Court of Australia and an order was made by that court on 22 December 2017, by consent, that the matter be remitted to the tribunal where the first respondent – that is the Department of Immigration – concedes that the second respondent – the AAT – denied the applicant procedural fairness and that this constituted a jurisdictional error where the delegate of the first respondent issued a certificate under section 376 of the Migration Act and the existence of that certificate was not disclosed to the applicant in the course of the review by the second respondent and at least some of the documents subject to the certificate were relevant or potentially relevant to the issues arising on the review by the second respondent.

7. The applicant has appeared before the tribunal today and the tribunal notes that the applicant, although technically still having a migration agent, is no longer using that migration agent and intends to notify the tribunal that he is now representing himself. 

8. The tribunal has endeavoured to explain the situation with the Migration Regulations in sufficient detail and in layman’s terms to the applicant, and the tribunal is satisfied the applicant understands the requirements of the visa clauses which are being referred to. The applicant did not require an interpreter in the hearing and the issue, in this particular case, is whether the tribunal can be satisfied there are compelling reasons why the Schedule 3 criteria should be waived.

9. The tribunal also examined the decision of former Member Wall of 21 April 2016 and has considered the procedural requirements of reconstitution of a matter before the AAT following a court remittal and the tribunal has decided that it will not have regard to the record of the proceeding before the tribunal as previously constituted and has intended to start afresh. The tribunal has communicated with the applicant that it intends not to have regard to the previous tribunal’s hearing and the previous hearing’s procedures undertaken have been now, considered by the tribunal, particularly 359AA procedures and section 376 Certificates, and the tribunal has indicated to the applicant that it is not fundamentally departing from findings of fact in regard to his visa history in Australia, his reasons for being in Australia, his studies and his marriage relationship. However, the tribunal departs from the previous decision of the tribunal in finding that his marriage situation was one that was entered into for reasons to do with companionship and also, support of the sponsor’s family and make findings accordingly.

10. The tribunal has discussed with the applicant his arrival in Australia, which first occurred in 2007 under a student visa.  He met his first wife and after studying in that period, the relationship came to an end; the applicant no longer sees his first wife.  The applicant made some studies for a diploma as NMIT institution and the applicant has had some financial struggles and has not been able to yet fulfil his dream of studying a master’s degree, particularly in social work.  The tribunal finds that the applicant has only from time to time worked and has struggled to support himself. 

11. The tribunal accepts the applicant’s evidence that he met his sponsor whilst she was working at a café and he was in a cleaning role at a station, and they met in 2010 and became friends.  The tribunal finds that, due to a loss of work rights, the applicant has not been able to work for a considerable period of time.  The tribunal finds from the applicant’s evidence that the parties married after becoming friends, getting to know one another and entering into a romantic relationship. 

12. The tribunal finds that the sponsor has four adult children who are aged in their 20s.  The tribunal finds that the applicant and the sponsor lived together at an address in suburban Melbourne and there were some of the sponsor’s children or all of the sponsor’s children living in that home at that time and they lived as a family, or more or less as a family.  The tribunal finds that the parties moved to the city for a few months.  There was a return to a suburban location and the sponsor went on a holiday at a later point and, at that point, upon the completion of that holiday, the relationship began to become further and further apart. 

13. There was a changing of a telephone number by the sponsor, there were attempts to contact the sponsor’s family and children and phone numbers were not easily provided.  Ultimately the sponsor’s phone number was not answered, even though telephone calls were made and the relationship has gradually broken down.  The tribunal has established with the applicant that he has not heard from his wife for at least 12 months and he estimates that he had not heard from her or seen her in either 2018 or the year before that, though he was not able to give the precise date, which the tribunal accepts.

14. The tribunal has given notice of the fact that the applicant is still hopeful that he could resume his relationship one day with his sponsor.  He still has feelings towards her and he still has hopes about her and in having a reconciled family situation.  However, at this point, this does not seem to be eventuating and the tribunal finds that to all intents and purposes, the parties have been separated for at least 12 months.  The tribunal also notes that there has been no divorce proceedings or finalised divorce between the parties and they remain legally married.

15. The tribunal finds from the applicant’s evidence, which was consistent, that there was contact in the past with the sponsor’s children and, indeed, a form of friendship between the sponsor’s children and the applicant and, although they still occasionally speak, it has become a sparse level of contact and very occasionally, and these friendships have dwindled or have been reduced significantly.  I have asked the applicant whether the parties will get back together again, to which he said he would not know and he would leave it to God, but at this point he is unable to say whether they would or would not get back together again.

16. The tribunal has examined the original reasons given to the Department as to why this should be a compelling circumstances case and those reasons are as follows (as originally given to the Department):

    He has followed all Department of Immigration laws and regulations from the day he first obtained a student visa to the present; that his sponsor love one another and cannot be separated.  But his parents are very happy and proud of him finally settling down and getting a great lady; that they would one day visit the applicant’s parents and stay with them.  That the applicant’s mother was diagnosed with high blood pressure recently, that she has been suffering from heart disease for a long time, that if he went back home alone, his mother would have a heart attack or have high blood pressure, potentially ruining or claiming her life, and a doctor’s letter confirming those health issues was provided at that time.  That the applicant and his sponsor care for or are with four children of the sponsor.  Even though they are adults, the individuals live together and bond together emotionally, and everybody will suffer if the applicant goes back to India.  That the sponsor is a low-income earner and the applicant needs to take care of the family financially in a cultural sense, and he wishes to stay in Australia and secure work rights for that purpose.

17. The tribunal has gone into detail with the applicant about these particular grounds and has established from evidence that he maintains these grounds to the extent that he can in his current situation and did not substantially add additional grounds for why he believes there are compelling circumstances in his case. 

18. The tribunal deals with the grounds as follows; although he may have followed all departmental regulations and procedures, the tribunal notes that there is an expectation that migrants follow such rules and the compliance with the law is not a compelling circumstance.

19. I note that the parties ‘love one another and cannot be separated’; but the tribunal notes that in and of itself, the parties are emotionally close and cannot be separated is, whilst a highly worthwhile situation, is not in and of itself so powerful that it is a compelling circumstance.  The tribunal notes that this emotional attachment is the case for many people, possibly millions of people, and cannot in and of itself be viewed as being compelling circumstances.

20. The applicant’s point that his parents are very happy and proud of him and that the parties, once they settle down and receive a spousal visa, will allow visits to occur or visit the applicant’s parents.  Whilst laudable and indicative of good family life and procedures, these are not in and of themselves so powerful that they can constitute compelling circumstances.  Whilst a highly laudable goal, there would be many and many individuals who have good family life, strong family life, who visit their families and get to know one another and this can occur in the millions, maybe even the hundreds of millions of circumstances as a normal part of life.

21. The tribunal turns to the issue of the applicant’s mother being diagnosed with high blood pressure recently and suffering from heart disease for a long time.  The tribunal notes the applicant’s opinion that, if he went back home, his mother would have a heart attack and her blood pressure would potentially claim her life.  The tribunal notes that the applicant is very concerned about his mother.  The tribunal notes that the applicant has been reluctant to give all of the details of his issues and challenges and travails in Australia and the tribunal understands that children often wish to spare their parents details of difficulties in their life to preserve their health, to preserve their emotional welfare and to preserve their frame of mind. 

22. Nonetheless, whilst this maybe the case, the tribunal does not find this situation to be compelling or so powerful as to compel the tribunal to find that it is a circumstance as specified under the Regulations.  Many people try to spare their families unpleasant details and, whilst this may be an advisable course in some cases, it is difficult to see the link that this will necessarily or automatically or even be likely to spur a heart attack or an episode of high blood pressure that is dangerous to her life.  Various stressors can affect individuals, particularly those with heart conditions, and it is usually the management of those heart conditions through medical means that control a patient’s life and control a patient’s quality of life; and to link a return back to India to make an offshore application is tenuous and cannot, in the tribunal’s eyes, amount to a compelling circumstances.  Even though I have considered the medical written evidence on this point, the linkage is not sufficient to satisfy me that there is a compelling circumstance.

23. I note the point about the parties having four children together; however, I do also note that they are adults; they have partners of their own and, more importantly the individuals have either not seen the applicant for a considerable period, contacted him very lightly, if at all, and appear to be emotionally managing without the presence of the applicant in their life.  Although they may wish to have the presence of the applicant in their life, at this point, I do not have any evidence before me that is so compelling and so powerful that this should lead the tribunal to conclude that the applicant should be permitted to make the application which he seeks to make onshore in Australia.

24. The tribunal also notes that the sponsor is a low-income earner and the applicant felt a need or feels a need to earn an income to support his family.  This too, the laudable goal; nonetheless, there are many people who are low-income earners and, furthermore, the sponsor does not seem to be economically dependent on the applicant in any way today and does not seem to rely upon the applicant for her livelihood.  I note she has been on a holiday some time ago, she is potentially assisted by family, she has lived together with family in the past and I do not find that it is so compelling that she is reliant upon the applicant and I find the situation to be not so powerful that it amounts to a compelling circumstances for the applicant and the sponsor.

25. The tribunal also has taken into account the evidence that the applicant gave about the former partner of the sponsor: according to his appeal documents in his oral evidence, that particular individual was murdered.  I do not have independent documentation to support that proposition, although I am prepared to accept it on the evidence involved. This occurred apparently before 2016 and a printout of a news article was annexed and it is in Annexure B.  The tribunal notes, though, that it does not appear that emotional support since the parties have separated has been required or has been forthcoming from the applicant and I do not have any evidence to suggest to me that she requires this emotional support or it is advantageous that she receives any potential emotional support from the applicant at this time and, therefore, I do not find that to be a compelling circumstance for the purposes of this case either.

26. When I asked whether there were any other compelling circumstances at the moment at the hearing, the applicant said that the parties were a good couple, that the sponsor had disappeared; that he had experienced back luck in this regard in Australia and in regard to his studies.  He wanted to do the right thing and he wanted to be somebody who could finish his studies and fulfil his dream. 

27. The tribunal has giving regard to all of these, however, they are more of a general nature and reflect a situation that does not appear to be particularly linked to the sponsor, particularly as the parties are separated.  So, the tribunal has given consideration for all of these factors and finds that there are not compelling reasons or circumstances in this particular case to not apply the criteria.

28. The tribunal also put to the applicant a certificate under section 376 of the Migration Act. This information was also placed under a 359AA process where the applicant was informed that the certificate in the view of the tribunal was valid that is because the certificate stated that there was certain information that was on the Department file which was in a certificate that was dated and signed by a delegate of 17 April 2015, which notified that disclosure of this material be contrary to the public interest; that folio 143 contained an allegation from a source wishing to remain anonymous, claiming that the applicant has been working illegally in Australia and has entered into a contrived relationship for migration purposes. Although is not explicitly stated, the tribunal has come to the conclusion that this certificate was validly issued to identify the public interest’s purpose and that is that individuals who wish to anonymously inform the Department of situations of concern, would be prevented from doing so if their identity were to be revealed.

29. This certificate was shown to the applicant and the applicant accepted the proposition that the certificate was validly issued.  The tribunal then went on to treat the certificate as validly issued and relayed the information, which is mentioned in the certificate as described in the Department’s file.  A summary without identifiers was provided: that the allegation was made by an anonymous individual that the applicant made an application for sponsorship for a visa for the sum of $20,000, that it was a fake sponsorship, that the Immigration department has rejected the sponsorship, that he is now, in a marriage with an old lady or an older lady and that he has paid an instalment and will pay the rest of the instalment, the following $10,000 that is, upon the receipt of the visa.

30. The tribunal put this information to the applicant and the applicant said that this information was all false.  He said that this must be his ex-wife; it must be her working against him from India.  He said that his friends here in Australia were very close.  He said that his former wife had taken away his money, had harmed his family and that in a divorce procedure in India, half of your property can be removed, and this had occurred to him and he found that this was another allegation that was completely false that was made in this bad spirit by his ex-wife.  The tribunal has given regard to this information and explanation and have no reason to doubt that it may in fact be so.  The tribunal gives no weight to the allegation and find that it is anonymous and finds that it does not specify particular knowledge of the applicant’s life, details or any other information and the tribunal gives the information under that section 359AA material and the certificate mentioned information no regard.

31. The tribunal now, moves on to the policy consideration; whether the applicant meets the Schedule 3 criteria or should those criteria be waived.  So: 

    An applicant who is not the holder of a substantive visa at the time of the application must meet certain criteria in Schedule 3 of 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 under clause 820.211(2)(d). 

1. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of the application.  The tribunal notes from the decision record of the delegate is that the last substantive visa held by the applicant was on 17 November 2012.  His date of visa application was 25 September 2014, therefore, did not hold a substantial visa at the time of his application – this is not in dispute.  Considering the criteria earlier mentioned, the relevant day is set out in this decision and the relevant day is the day that the applicant last held a substantive visa and the tribunal finds that no application was made within 28 day so that date. 

2. The tribunal has given consideration to policy considerations where the relevant policy of the department requires consideration in this case because of the review applicant’s migration history.  The policy stresses that the provisions are not intended to give to 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.  The tribunal has considered the evidence and has come to the conclusion the third of the above circumstances ‘can leave Australia for a Partner visa outside Australia’, accurately describes the situation of the sponsor and the applicant. 

   “The purpose of the Schedule 3 criteria are three-fold:

   To encourage persons to apply for a further substantive visa before their existing visa ceases to have effect; 

   To discourage persons from overstaying their visas; and

   To prevent non-citizens from benefiting by remaining in Australia unlawfully.”

3. I do not have any concern about the applicant’s conduct and that he has made efforts to hold a visa lawfully living in Australia.  However, the tribunal’s decision about the compelling reasons is the fundamental basis of the decision. 

4. There are also no Australia citizen children from the relationship.  The applicant and the sponsor were in a partner relationship which has been in existence for two years or longer, according to the applicant.  However, that in and of itself does not leave me to find that there are compelling circumstances here.  My consideration of this evidence is from the period of the visa application, all the way until the present day and the date of this decision and I have given consideration to all update evidence as submitted to the tribunal.

5. The tribunal notes that there was not written evidence submitted to the tribunal after the remittal of the case from the Federal Circuit Court, only oral evidence.  Therefore, the tribunal is therefore not satisfied that there are compelling reasons for not applying the Schedule 3 criteria.  Accordingly, the applicant does not meet clause 820.211(2)(d)(2).  For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

6. The tribunal makes the following decision; the tribunal affirms the decision not to grant the applicant a Partner (temporary) (class UK) visa.  That is the end of the tribunal’s decision.

   DECISION

7. The Tribunal affirms the decision under review.

   Justin Meyer
   Member