Lamichhane (Migration)

[2021] AATA 390

Lamichhane (Migration) [2021] AATA 390 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pramila Lamichhane

CASE NUMBER:  1934709

HOME AFFAIRS REFERENCE(S):          BCC2015/3049046

MEMBER:Kira Raif

DATE:19 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2021 at 10:29am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – holding a substantive visa at the time of application – compelling reasons to waive Schedule 3 criteria – previous genuine relationship with the sponsor – relationship ceased – financial hardship – parents’ whereabouts unknown – mixed religious marriage – divorce – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3

CASES

Babicci v MIMIA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2883
Elhendy v Minister for Immigration [2018] FFCA 1140
MZYPZ v MIAC [2012] FCA 478
Nazir v MIBP [2018] FCCA 861
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 (the Act).

2. The applicant is a national of Nepal, born in April 1989. She applied for the visa on 16 October 2015 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 found that the applicant did not meet Item 3001 and found there were no reasons to waive that requirement. The applicant sought review of the delegate’s decision.

3. On 23 February 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review and in November 2019 the Court remitted the matter for reconsideration.

4. The applicant appeared before the Tribunal on 11 January 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 decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

6. 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). 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).

7. 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.

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

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant first entered Australia in July 2009 holding a Student visa, which ceased in November 2011. The applicant then remained in Australia as an unlawful non-citizen until December 2012 when she made an application for another Student visa. That application was refused by the delegate and affirmed by the Tribunal in November 2013. The applicant made the application for the Partner visa in October 2015.

9. The Tribunal finds, having regard to that evidence, that the applicant last held a substantive visa when her Student visa ceased in November 2011. She did not have a substantive visa since that time and she was not a holder of a substantive visa at the time the application for the Partner visa was made. 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).

10. 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.

11. The Tribunal has found that the applicant ceased to hold a substantive visa when her Student visa expired in November 2011. 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 October 2015, 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.

12. 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

13. 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.

14. 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.

15. The applicant stated in her evidence to the delegate and the first Tribunal that she had a genuine and long-term relationship with the sponsor. The applicant provided a number of documents to the delegate and the first Tribunal concerning various aspects of the relationship and in her evidence to the present Tribunal the applicant described the development and the nature of her relationship with the sponsor. The Tribunal acknowledges that evidence. Without assessing the nature of the relationship, the Tribunal is prepared to accept, only for the purpose of this review, that prior to its breakdown, the applicant and the sponsor were in a genuine long-term relationship. However, in the Tribunal’s view, that is not sufficient to establish the existence of a compelling reason for not applying the Schedule 3 criteria because the existence of a genuine spousal relationship is the basic requirement for a partner visa application, the Tribunal is not satisfied that the genuineness, mutual commitment, emotional support, continuing nature and longevity of the parties’ relationship are on their own and without more, circumstances that should compel the Tribunal to not apply the Schedule 3 criteria. The In reaching this conclusion, the Tribunal has had regard to the reasoning in Chan v MIBP [2017] FCCA 2883 at [14] and Nazir v MIBP [2018] FCCA 861 at [29]–[30].

16. Importantly, the applicant’s evidence to the Tribunal is that the relationship has now broken down and the applicant told the Tribunal that her former husband had another relationship. The Tribunal does not consider that a past relationship which is no longer in existence constitutes a compelling reason for the waiver at the time of this decision.

17. In oral evidence to the Tribunal the applicant sought to explain the reasons for the late submission of her visa application. The applicant said that she had made a mistake but she relied on the advice of her husband and her financial situation was very bad. Her family did not accept her and she was facing financial hardship and had a lot of other problems and she did not know right from wrong at the time. It is not necessary for the Tribunal to consider why the application was lodged late, nor why the applicant remained in Australia as an unlawful non-citizen. The issue is whether at the time of this decision, there are compelling reasons for not applying the Schedule 3 limitations, not whether there were justifications for the late submission of the application.

18. The Tribunal has considered the applicant’s evidence insofar as she claims these circumstances continue to exist at present. The applicant states she experienced financial hardship. The Tribunal does not accept the applicant suffered financial hardship at the time, or prior to making the present application as her evidence to the Tribunal is that she had sought a Student visa. That visa would have required a substantial amount of funds to pay the tuition fees and other expenses. The fact that the applicant sought the Student visa suggests she was able to meet these financial requirements. The applicant explained to the Tribunal that she was working and saving on everything, even the food, and she was trying to find the cheapest course. That may be the case but in the Tribunal’s view the fact that the applicant was able to find the means to pay the tuition fees and other expenses associated with the Student visa application and ongoing residence in Australia, no matter how these savings came about, does not support the applicant’s evidence that she was experiencing financial hardship.

19. More significantly, there is no evidence before the Tribunal that the applicant continues to experience financial hardship. The applicant referred to her employment in her oral evidence to the Tribunal. She has not presented any financial records to show she is experiencing financial hardship at present and the Tribunal is not satisfied that she is. The Tribunal does not consider that any claimed financial hardship constitutes a compelling reason of the waiver.

20. The applicant claimed in her evidence to the delegate that she provided emotional comfort and support to the sponsor following the breakdown of his previous relationship. The Tribunal is prepared to accept that evidence. However, evidence before the Tribunal is that the relationship has ended and the applicant does not claim that following the cessation of her relationship with the sponsor, she continues to provide emotional or other support to him. The Tribunal does not consider that the provision of emotional support in the past in circumstances where the relationship has ended constitutes a compelling reason for the waiver.

21. The applicant’s evidence to the first Tribunal is that her husband suffers from arthritis, requires regular medical appointments and medication and that she provides care and support to her husband. As the relationship has now broken down, the Tribunal is not satisfied that the applicant continues to provide such support. The Tribunal finds that the sponsor’s health and medical condition do not amount to compelling circumstances for the waiver in circumstances where the applicant is no longer in a relationship with her husband.

22. The applicant states in her submission to the delegate that she lost her family home in Nepal in April 2015 and she is not aware of her parents’ whereabouts. The Tribunal does not accept that evidence as the applicant presented no probative evidence in support of her claim. The Tribunal is mindful that if the applicant’s claims were true, there should be supporting material readily available, such as photographic evidence of the property being damaged or ‘lost’, official records from a variety of organisations, statements from neighbours or other community representatives. None of this evidence has been made available by the applicant. She also claimed she was not aware of her parents’ whereabouts but the applicant presented no evidence of having searched for her parents and of having been unable to locate them. Again, there is no evidence from the local authorities, police reports, neighbours statements etc as to what has occurred in the area or to the applicant’s parents. There is no evidence of the applicant seeking to make contact with her parents. There are no police reports. There is no record of the applicant approaching the Red Cross to help locate her parents or any other organisation. The Tribunal is of the view that if the applicant’s claims were true, such evidence should be readily available to the applicant. The applicant explained to the Tribunal that she did not know she had to submit supporting evidence. The Tribunal does not accept that  explanation, given that the applicant has been represented by a migration professional in her application. On the evidence before it, the Tribunal does not accept that in the past, the applicant had lost contact with her parents or that she had lost her family home as the result of the earthquake. The applicant told the Tribunal that this is not a significant problem for her now. The Tribunal does not accept the applicant’s evidence and does not consider that these circumstances amount to compelling reasons for the waiver.  

23. The applicant’s evidence to the Tribunal is that she is in regular, albeit infrequent, contact with her mother. When asked if there was any period in the past five years when she did not have contact with her parents, the applicant said that she does not speak much with her father and siblings but she has had regular contact with her mother and she could not remember a period of time she could not speak to her mother. In the Tribunal’s view, the applicant’s evidence to the Tribunal contradicts her evidence to the delegate. When the Tribunal referred to the applicant to her earlier evidence to the delegate, the applicant changed her evidence to the Tribunal and said that there was a period of time after the earthquake when she could not contact her family but she has been able to contact them more recently. In the Tribunal’s view, if the applicant did lose contact with her family following the earthquake and if she was concerned about her parents’ safety, she would have recalled these events. The applicant’s statement to the Tribunal that she could not recall the time when she could not contact her family, coupled with the lack of supporting evidence, causes the Tribunal to question the veracity of the applicant’s claims and her general credibility. The Tribunal does not accept that the applicant lost contact with her family. The Tribunal has formed the view that these events, which were described by the applicant in her earlier evidence, did not take place. The Tribunal finds that these matters do not constitute compelling reasons for the waiver. 

24. The applicant provided a declaration to the delegate dated 3 September 2015 in which she stated that her family had disowned her because of her marriage and that she had no contact with her family since April. As noted above, the applicant told the Tribunal that she could not recall any period when she had no contact with her family. Again, the Tribunal is of the view that if the applicant had lost contact with her family as a result of her relationship or marriage, and the statutory declaration suggests that she has not had contact with her family for at least five months at the time of its writing, the applicant would have been able to recall such events. The applicant’s contradictory evidence causes the Tribunal to question the veracity of her claims. The Tribunal has formed the view that  the applicant has not been truthful in her evidence. The Tribunal does not accept the applicant was disowned by her family because of her inter-religious and inter-caste marriage and lost contact with them as a result. The Tribunal does not accept the applicant’s family would refuse to support her as a result of her marriage or divorce or that she would have nowhere to live because of the withdrawal of family support. The Tribunal has formed the view that the applicant has fabricated these claims to assist her with the visa application. The Tribunal has formed the view that the applicant is willing to provide whatever statement she believed would assist her in obtaining the visa. The Tribunal has formed the view that the applicant is not a person of credibility.

25. In her submission to the Tribunal of 18 January 2021 the applicant states that she was not in communication with her family after starting her relationship with the sponsor but as the relationship had deteriorated, she ‘managed to communicate’ with her mother who, due to family and societal expectations, would not be able to support the applicant. The applicant’s evidence does not explain why she provided contradictory evidence as noted above and the Tribunal does not accept the applicant’s evidence as truthful.

26. The applicant claims that she cannot return to Nepal because she was raised in a Hindu family with a dominant father and her family are religious and she had married a Muslim.  Her family do not support an inter-religious marriage. In her evidence to the Tribunal and her post-hearing written submission the applicant refers to the societal discrimination she would experience due to her inter-religious and inter-caste marriage and divorce and the applicant referred to general country information. The applicant claims that divorce would be unacceptable in the society and has created even more problems for her. Following the hearing, the applicant again referred to the fear of being an outcaste and persecuted by her family and society because of her marriage. The applicant referred to her family being religious and against her marriage and divorce. The Tribunal finds the applicant’s reliance on country information selective and highly subjective. The Tribunal acknowledges the information put forward by the applicant. However, the DFAT Country Information Report for Nepal, dated 1 March 2019, relevantly states

    3.24 Inter-religious marriage is reportedly increasing in popularity among young people. Such a marriage would commonly involve running away from disapproving families. There are no legal barriers to inter-religious marriage.

    3.25 Overall, DFAT assesses that people of different religions generally live side-by-side without incident in a richly multi-ethnic and multi-religious society. Incidents of tensions between groups, and discrimination against them, has been reported, mostly in localised events. These are described in the relevant section below. DFAT assesses that people involved in multi-ethnic marriages may be at risk from disapproving families, but this depends on the attitudes of individual parents.

27. And, with respect to inter-caste marriage,

    3.54 There are no legal barriers to inter-caste marriage. The government has even provided monetary incentives of 100,000 rupees (about 1,200 Australian dollars) to each inter-caste couple married since 2009. The risk of family disapproval and associated violence depends on individual circumstances, however disapproval of such unions, which may include acts of violence, remains a possible outcome.

1. This information suggests that the applicant is unlikely to experience societal discrimination due to her inter-religious or inter-caste marriage. The Tribunal does not consider that the risk of such discrimination is such as to be of sufficiently powerful or compelling nature.

2. The Tribunal has also considered the applicant’s claim that she would experience harm from her own family. As noted above, the Tribunal has formed the view that the applicant’s evidence in relation to her interactions with her family is not truthful, and the Tribunal does not accept her claims about her family’s attitude to her marriage and divorce and the withdrawal of family support. The Tribunal has formed the view that the applicant is not a person of credibility and that she is willing to make claims only to assist with the visa process.

3. In her evidence to the Tribunal the applicant describes that her family encouraged her to marry and she felt subjugated to their wishes and after her divorce and remarriage, the applicant refers to receiving threats from her father and brother. The Tribunal is not satisfied the applicant is being truthful in this evidence. The Tribunal finds her claims vague and unsupported by any probative evidence. The Tribunal is also concerned that the applicant’s description of family harm she claims to be fearful of appears to have escalated from her earlier submissions. Thus, in her declaration provided to the first Tribunal the applicant refers to the family encouraging her to reconcile with her first husband and not approving of the second marriage. The applicant claimed that her family told her not to return to Nepal because she would be subjected to societal discrimination. The applicant made no mention of any threats from her father or brother. Similarly, in her declaration to the delegate of 3 September 2015 in which she outlined the waiver consideration, the applicant makes no mention of such threats. Indeed, the threats from the family appear to be a recent invention of the applicant. The Tribunal does not accept the applicant’s evidence that she received threats from her father and brother. The Tribunal has formed the view that the applicant has fabricated her claims to assist with the present application and that she is not a person of credibility.

4. The applicant claims she would experience discrimination and persecution from her family and society because of her divorce and being a separated / divorced woman in Nepal without family support and male protection. The applicant refers to the patriarchal structure of Nepalese society and the subjugated status of women. The Tribunal considers the applicant’s claims generalised and addressing general country information (such as her claims about the status of women), rather than addressing her particular circumstances. The Tribunal acknowledges that according to the country information, including the 2019 DFAT Report on Nepal, there is societal discrimination against women, although it also states that it is largely dependent on the personal circumstances. In this case, the applicant has been given opportunities that may not be readily available to many women in Nepal, such as to study and live in a foreign country. The applicant’s ability to pursue education in Australia suggests, in the Tribunal’s view, that the applicant’s family has provided her with opportunities that may not be available to other women and therefore her claims of discrimination and harm must be considered in light of the applicant’s particular personal circumstances and not very general country information. The Tribunal has rejected the applicant’s claim that she had been threatened or ‘disowned’ by her family. The Tribunal does not accept that she would be subjected to harm by her own family. As for general discrimination, the applicant has not satisfied the Tribunal that she would be subjected to such discrimination, given her specific circumstances. The Tribunal has formed the view that the applicant is not a person of credibility and that she has exaggerated or fabricated her claims. The Tribunal is not satisfied that the applicant would experience harm as a divorced woman or for any other reason, if she was to return to Nepal.

5. Further, the Tribunal is of the view that if these claims were true, the applicant would have used every opportunity to remain in Australia so as not to be returned to her home country. The applicant’s evidence to the Tribunal is that she has not sought the protection visa and that she was seeking the partner visa instead on advice of her migration agent. The Tribunal is mindful that the present application was refused several years ago and the previous Tribunal affirmed the decision under review close to three years ago. The applicant must have recognised that there was a possibility that she would not be granted the Partner visa after the primary refusal or the first Tribunal’s decision. This is particularly so as the applicant’s relationship with the sponsor has ended and her recent claim of family violence has not been assessed or accepted. Yet the applicant had not sought the alternative means of being able to remain in Australia through applying for a protection visa.

6. On the limited evidence before it, the Tribunal is not satisfied the applicant would experience societal discrimination or family discrimination other form of harm or hardship if she was to return to Nepal. The Tribunal does not accept that the applicant will experience hardship and discrimination in Nepal due to her inter-religious or inter-caste marriage, her claimed conversion, the divorce or any other matter to which the applicant refers. The Tribunal further finds that the applicant has a right to seek protection in Australia if she genuinely believes she would be subjected to harm and the veracity of her claims and the likelihood of persecution would be assessed through that process. In these circumstances, the Tribunal finds that such matters do not give rise to the compelling reasons for the waiver.

7. The applicant claims she has been shunned by the community in Australia who ‘talk behind her back’ and that she has withdrawn from the community. Even if that was the case, the Tribunal does not consider that this level of societal discrimination amounts to compelling reason. This is because the applicant appears capable of independent living without the community support and she does not suggest she is dependent on the community. Importantly, the applicant is seeking a visa to remain in Australia with or near the community that she claims shuns her. It is unclear how the waiver, which would enable the applicant to obtain her visa onshore, would help the applicant avoid problems with the community in Australia. The Tribunal does not accept that this is so.

8. The applicant claims to the present Tribunal that she has been subjected to family violence and she provided a psychological report, her own declaration and medical evidence to establish the claim of family violence. The Tribunal is mindful that for the purpose of Schedule 3 waiver, it is not necessary to provide the prescribed evidence of family violence, as may be the case with cl. 820.221 and for the purpose of this provision, the Tribunal is prepared to accept that the applicant may have been subjected to family violence. The Tribunal has considered whether the existence of family violence constitutes a compelling reason for the waiver and in the circumstances of this case, the Tribunal has formed the view that it does not. The applicant’s evidence is that the relationship has broken down. She is no longer living with the sponsor and is no longer subjected to family violence. She now lives independently. The applicant’s evidence to the Tribunal is that following the marriage, her husband travelled overseas and had another relationship. There is no suggestion that family violence or threat of violence continues. The applicant does not claim to have any ongoing contact with her former partner. Considering all these circumstances, the Tribunal does not consider that the past family violence constitutes a compelling reason for the waiver.

9. The applicant told the Tribunal that she cannot return to Nepal because she is suffering from anxiety and depression and takes medication and she is seeing a psychiatrist. The applicant outlines the nature of violence she had experienced at the hands of her husband, stating that degrading and inhumane treatment to which she was subjected caused deterioration in her mental health and impacted on her daily functioning and working ability. The Tribunal notes the applicant’s evidence that she has been gainfully employed, so it has not been satisfactorily explained how her claimed poor mental state affects her working ability and mental functioning. Nevertheless, the Tribunal acknowledges various evidence from health professionals which refers to the applicant’s condition and the Tribunal accepts the professional opinion offered in the medical reports. The Tribunal accepts that the applicant has been receiving regular counselling and treatment. However, the applicant has not established that she would be unable to receive adequate treatment in her home country. When asked why some arrangements cannot continue in Nepal, the applicant told the Tribunal that there are no women rights there and she would not experience the same freedoms as she does in Australia. The Tribunal is not satisfied, however, that the applicant will not have access to adequate health care, including mental health. There is simply no evidence to support that  assertion, if that is the applicant’s claim. The Tribunal is not satisfied that the applicant would have no access to adequate treatment in Nepal (whether it is the same as in Australia) and, as such, the Tribunal does not consider the applicant’s condition to constitute a compelling reason for the waiver.

10. The applicant refers to the reasoning in Elhendy v Minister for Immigration [2018] FFCA 1140 and submits that a distinction must be made between general hardship resulting from departing Australia and offshore application and the specific mental health concerns in circumstances where such had been diagnosed. In the Tribunal’s view, the circumstances of that case may not be readily applicable here because the applicant’s relationship with the sponsor ended and the applicant may not have an opportunity of seeking another Partner visa offshore on the basis of the family violence provisions. The Tribunal accepts the medical evidence and accepts the professional opinion of how departure from Australia would affect the applicant. the Tribunal acknowledges the applicant’s claim that she has no support in Australia or Nepal. However, the Tribunal has formed the view that she may be able to access health support in Nepal and the Tribunal has rejected the applicant’s evidence concerning lack of family support and general discrimination in Nepal.

11. The applicant claims there is no work for women and no women’s rights. The Tribunal finds such statements to be very generalised and vague. It is not sufficient to state that there are no women’s rights and no work for women in Nepal. The Tribunal must consider the applicant’s particular circumstances. The applicant has not satisfied the Tribunal that she would be unable to find employment, even if she claims to have no family links and no education. The applicant presented no evidence of having sought and denied any employment in Nepal and her evidence to the Tribunal is that she had never made a job application in Nepal. The Tribunal is not satisfied the applicant would be unable to find employment and support herself. The applicant has also not presented evidence that the claimed absence of women’s rights would affect her in particular. The applicant has not satisfied the Tribunal that the women’s circumstances in Nepal would have adverse effect on her personally. The Tribunal has found the applicant’s claims too vague. The Tribunal is not satisfied the applicant’s claimed circumstances in Nepal would cause hardship to the applicant of the magnitude as to amount to a compelling circumstance and the Tribunal does not accept the applicant’s claim that she would be unemployable. The Tribunal does not accept the applicant would be unable to support herself if returned to Nepal.

12. The applicant states that her mother told her that because she has had two divorces, she would not have many opportunities to remarry. The Tribunal does not consider that  the applicant’s marriage prospects in Nepal to constitute a compelling reasons for the waiver, particularly in circumstances where the applicant has not indicated an intention to re-marry and when she claims the situation in Australia is no different (being shunned by the community) to the situation in Nepal.

13. The applicant states that she has been living in Australia for a long time, she likes many things in Australia, including women’s rights and she has many aspirations she has for the future. The applicant refers to her future study prospects and education aspirations. The Tribunal acknowledges that  the applicant has been living in Australia for a number of years and may be settled in Australia and that she has a preference to remain in Australia. However, the Tribunal is mindful that the applicant has never been granted a permanent visa. She initially held a visitor visa, she was unlawful for a period of time and she held a series of bridging visas. That is, despite her lengthy stay in Australia the applicant held a substantive visa for a fairly brief period of time. As such, she can have no expectation of remaining in Australia permanently. The Tribunal does not consider that the length of the applicant’s stay in Australia and her settlement in Australia, in the circumstances of this case, constitutes a compelling reason for the waiver.

14. In her submission of 18 January 2021, the applicant refers to Covid-19, the risk of infection in Nepal and her inability to travel. The Tribunal acknowledges that the applicant may be unable to leave Australia immediately but it is likely that if the applicant is precluded from travelling due to Covid-19, she may seek a Bridging visa or another temporary visa from the Department and permitted to remain in Australia until such time as she is able to travel overseas.

15. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has rejected many of the applicant’s claims, including those that she would experience harm or discrimination in Nepal and that she would receive no family support and would be harmed by the society or her family. The Tribunal has formed the view that these claims have not been truthful. The Tribunal is also of the view that many of the applicant’s claims are exaggerated or unsupported by evidence, such as her general claims of discrimination against women and low employment opportunities and the Tribunal also found that some of the applicant’s claims had been fabricated. The Tribunal has formed the view that the applicant is not a person of credibility and has rejected many of her claims. The Tribunal accepts that the applicant prefers to remain in Australia and may experience a degree of hardship if she returns to Nepal and the Tribunal has had particular regard to the applicant’s health issues. However, the Tribunal does not consider that these circumstances , whether taken singularly or cumulatively, are of sufficiently compelling nature. The Tribunal has formed the view that the matters put forward by the applicant are not of sufficiently strong nature as to constitute compelling reasons for the waiver.

16. 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).

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member