Sandhu (Migration)

[2018] AATA 1483

Sandhu (Migration) [2018] AATA 1483 (27 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh Sandhu

CASE NUMBER:  1705103

DIBP REFERENCE:  CLF2013/223206

MEMBER:Rosa Gagliardi

DATE:27 March 2018

PLACE OF DECISION:  Melbourne

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 (Temporary)) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 27 March 2018 at 11:49am

CATCHWORDS
Migration – Federal Circuit Court remittal - Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Whether compelling reasons exist for not applying Schedule 3 criteria – Length of relationship – Difficulty of relocating offshore while application is processed – Decision under review remitted with direction

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211(2)(d)(ii), Schedule 3, Criterion 3001

CASES
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32
MZYPZ v MIAC [2012] FCA 478
Babicci v MIMIA (2005) 141 FCR 285

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 18 August 2014 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 applied for the visa on 9 September 2013 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 it considered that at the time of application there were no compelling reasons for waiving the Schedule 3 requirements to enable the applicant to lodge a Partner visa onshore.

4. The Tribunal gave an oral decision in this matter and affirmed the departmental decision on 10 November 2016. On appeal, however, the Federal Circuit Court held on 20 April 2016, that the Tribunal had fallen into error in construing clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations as confining the decision-maker’s satisfaction of whether there are compelling reasons to circumstances which only exist at the time of application.  These errors were identified in the decision in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

5. Given the time that has elapsed in this case and given the broader considerations the Tribunal is required to have regard to as per Waensila, the Tribunal has decided to make a decision in this case on the papers.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SCHEDULE 3 CRITERIA (cl.820.211(2)(d))

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

7. 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).

8. 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

9. 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.  Departmental records show that the applicant’s last substantive visa ceased on 15 March 2013. This application was lodged on 9 September 2013.

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

    Compelling reasons

11. 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.

12. 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.

13. The Tribunal notes that the applicant has had a lengthy history in Australia. He arrived on 24 February 2009 on a subclass 572 student visa which ceased on 28 February 2011. Departmental records indicate that he was granted two further subclass 573 student visas and the final visa ceased on 15 March 2013. He was included in his previous spouse’s subclass 485 Graduate Skilled visa lodged on 6 September 2012. This application was refused on 24 April 2013 as he was no longer in a relationship with his former spouse. The Tribunal affirmed the refusal on 21 May 2014. The applicant has appeared before the Tribunal on two occasions previously in relation to his subclass 820 visa on the basis of his claimed relationship with the current sponsor, arguing that there were compelling reasons for waiving the Schedule 3 criteria to permit him to lodge a Partner visa onshore. The most recent hearing was held on 10 November 2016.

14. The applicant at the previous hearing held on 10 November 2016 stated that he could not return home to his parents in India because he had now been married on three occasions and his current wife had a child.  His parents had disowned him and this meant that he had no right to any resources they might otherwise have provided him.  His circumstances were not culturally acceptable to his parents.  If he lived independently from them in India he would have no emotional or financial support and he would be significantly disadvantaged. 

15. He stated that he would find it difficult to transfer his claimed wife and her child to India for any period because she was studying.  In any event, his parents have disowned him and they would have nowhere to go in India, even though the Tribunal noted that it was necessary for his spouse and her child to go offshore. 

16. The applicant also held concerns that if he went offshore he may not be permitted to return to Australia. 

17. The sponsor also gave evidence.  She stated that they needed to be together to support one another.  Everything was really hard for them at the moment.  He had no job and she was not working either.  The sponsor has her own child who is 14 years of age, from a previous relationship.  The father of the child provided no assistance in rearing her son as he had not been involved in their lives for a lengthy period.  The sponsor was also not working.  She looked forward to the applicant being able to work to support her and assist her as a family.

18. The sponsor stated, when asked, that sometimes they lived together, however, he lived with his brother and she lived with her brother and her nanny; the woman who helped her look after her child.  The parties saw each other often but not on a 24 hour a day basis.

19. The applicant’s brother also gave evidence indicating that the applicant was concerned at the strong disapproval expressed by his parents in terms of the way he was living his life.  The applicant stated that his parents had only recently disowned him to explain why he did not mention the issue of his parents’ disownment of him at previous hearings. 

20. The sponsor stated that she had lost a baby during her relationship with the sponsor when she went to Thailand.  However, little probative medical evidence has been submitted to this effect.  The applicant submitted an invoice from Capital Radiology dated 13 December 2013, which indicates that the sponsor was having an ultrasound in relation to a pregnancy less than 12 weeks gestation.  The issue of the paternity of any such child is also an open question.

21. The Tribunal has had regard to the evidence individually and as a whole.  The Tribunal has serious concerns about the relationship itself.  The parties still live apart.  The sponsor was honest in stating that she was living with her brother and a nanny who assisted her with her child.  Her son did not have a relationship with the applicant, leaving the Tribunal to query the extent to which the parties are seen as a family unit.  The applicant lived with his brother.  Other anomalies arose during the course of the hearing held on 10 November 2016. 

22. The applicant’s marital history is also confused.  He states that he has married on three occasions but the Tribunal has not been able to identify the evidence to support these claims.  Furthermore, the parties have submitted very limited evidence regarding whether they are in a genuine and continuing spousal relationship.

23. In any event, the Tribunal is not assessing whether the parties meet the other requirements for a Partner visa (subclass 820). It is focussed merely on whether there are compelling reasons for waiving the Schedule 3 criteria.

24. The Tribunal notes that the parties married on 7 July 2013. The parties claim to have been in a relationship now for almost 5 years. While the Tribunal has reservations about the true nature of that relationship, prima facie they continue to present as spouses. This is an issue which policy guidelines state the Tribunal is required to have regard to, in making its decision as to whether there are compelling reasons for waiving the Schedule 3 criteria. The Tribunal places weight on the longevity of the claimed relationship in favour of the applicant.

25. The Tribunal is also prepared to accept that the applicant’s parents have recently disowned him and he is overwhelmed as he has no family to turn to, were he to return to India, even if he could relocate and start afresh.  While not by any means impossible, the Tribunal considers that it would be harsh for the applicant to make temporary arrangements offshore while his visa is processed, particularly as he has now been in Australia for such a lengthy period. 

26. The Tribunal accepts that the uncertainty of living in temporary circumstances in India somewhere outside his home town of the Punjab would be extremely difficulty.  The sponsor gave persuasive evidence that she considered that the applicant did not have the resources to survive on his own in his country.  This is not a matter that the Tribunal had given enough consideration to in its previous decision and which may have also led to the finding that the case ought to be remitted for reconsideration by the Tribunal.

27. 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).

28. 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

29. 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 (Temporary)) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

    Rosa Gagliardi
    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.