Rahi (Migration)

[2019] AATA 5361

Rahi (Migration) [2019] AATA 5361 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gourav Rahi

CASE NUMBER:  1705938

DIBP REFERENCE(S):  BCC2016/1937110

MEMBER:Nicholas McGowan

DATE:24 July 2019

PLACE OF DECISION:  Melbourne

DECISION:Applicant meets clause 820.211(2)(d)(ii).

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – no substantive visa at time of application – applicant used visa system to prolong stay – multiple visa applications – compelling reason to apply Schedule 3 waiver – Australian born child with sponsor – best interests of child – DNA evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211, Schedule 3

1. The applicant, Gourav Rahi, lodged a temporary partner visa application (subclass 820) on 3 June 2016 on the basis of his de facto relationship with his Indian citizen partner Madhuri Annapureddi who was an Australian permanent resident (at that time).  A delegate for the Minister refused to grant the applicant the temporary partner visa on 7 March 2017. Seventeen days later, the applicant appealed that refusal decision to this tribunal. The applicant’s case was assigned to a member of this tribunal on 8 February 2019. At the time the applicant applied for the subclass 820 visa he was required under law to hold a ‘substantive visa’. He did not. Therefore he did not meet the requirements spelt out in schedule 3 of the migration regulations. He was also not able to meet an alternate criterion (which was not relevant to this case). The waiver of schedule 3 was also not applied as the delegate was not satisfied ’compelling reasons’ existed. The waiver of the schedule 3 criteria allows the applicant to have a partner visa application considered onshore, rather than requiring him to leave Australia and progress it offshore.

2. On 1 March 2019 this tribunal requested DNA evidence from the applicant to confirm the claimed parentage of his child (Neisha Rahi, born 4 April 2018) with his sponsor. On 5 April 2019 the applicant provided DNA evidence which concludes the applicant is the biological father of Neisha Rahi. The sponsor has one other daughter, Anshi Sunkara born 1 December 2008, from her previous marriage.

3. In this case the Minister’s delegate found the applicant had “…manipulated his circumstances in order to extend…” his stay in Australia. This tribunal agrees. One visa after the other was applied for and the criteria not met. This included two failed applications for student visas, tribunal merits review, judicial review and ministerial review. It is clear that the delegate placed ‘significant weight’ on the applicant’s migration ‘history’ (meaning the delegate had a dim view of the applicant’s repeated meritless applications) when considering whether or not to apply the schedule 3 waiver. While this tribunal understands the delegate’s concerns, it has reached a different conclusion. While the applicant has clearly used the system to prolong his stay, it allows for such. The applicant simply availed himself of every opportunity, even in instances where there was no merit; to appeal each negative decision he received from each authority. He thereby prolonged his stay in Australia. There is nothing illegal about it. The morality is a separate question, and one appropriately pondered by law makers should they wish. Importantly, for this tribunal, there’s nothing in the law or regulations which forbids it or provides for any kind of ‘punishment’ or ‘sanction’ including importing any ‘negative weighting’ when coming to a decision about whether or not to grant a class of visa.

4. So what are the facts of the case, and do ‘compelling’ circumstances exist such that this tribunal applies (or not) the schedule 3 waiver? In short, the applicant and his sponsor met in August 2014. They began a de facto relationship in March 2015. There is third-party evidence they care jointly for the sponsor’s daughter, who is now ten years old, and attends primary school. The child’s school principal has also provided evidence. The applicant and sponsor also have a 15-month-old Australia citizen infant daughter. It is clear in this case that the interests of this family unit are best served where the young child continues her schooling, uninterrupted, and the infant child is raised in her native Australia with all the rights and privileges available to her. Moreover, it has long been an established pillar of Australian society that the best interests of a family-unit, and the Australian community at large, are well served when families stay together and are not dislocated or forcefully separated, even if only for a period of months, unless there are strong countervailing reasons to do so. No countervailing reasons are apparent in this case. Moreover, the interests of retaining and providing an uninterrupted family environment to the children (and schooling in the case of the elder child), compels this tribunal to apply the schedule 3 waiver. It follows therefore that this tribunal remit this decision with the finding the schedule 3 waiver applies and the application be further considered by the Minister including an assessment of the parties’ claimed relationship. 

Statement made on 24 July 2019 at 2:56pm