Singh (Migration) - [2022] AATA 1579

Singh (Migration) [2022] AATA 1579 (23 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jassa Singh
REPRESENTATIVE:  Mr Ejaz Khan (MARN: 0213478)
CASE NUMBER:  2109787
HOME AFFAIRS REFERENCE(S):          BCC2017/1508951
MEMBER:Kira Raif
DATE:23 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 February 2022 at 1:57pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant did not have a substantive visa at the time of application – existence of hardship does not necessarily equate to the existence of compelling reasons – not satisfied that there are compelling reasons for not applying the Schedule 3 criteria –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
Chan v MIBP [2017] FCCA 2883
MZYPZ v MIAC [2012] FCA 478
Nazir v MIBP [2018] FCCA 861
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India, born in April 1981. He applied for the visa on 21 April 2017 on the basis of his relationship with his sponsor. The delegate refused to grant the visa, finding that the visa applicant did not satisfy cl 820.211, because the delegate was not satisfied the applicant met the Public Interest Criterion (PIC) 3001 and found there were no compelling reasons for not applying that criterion.
The applicant sought review of the delegate’s decision. In January 2021 the Tribunal (differently constituted) affirmed the decision under. The applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal for reconsideration.
The applicant appeared before this Tribunal on 15 February 2022 to give evidence and present arguments. The applicant has nominated his wife to give oral evidence but she had left the premises before giving evidence and, despite the Tribunal spending some time waiting for her to become available, she has not made herself available to give oral evidence. In the course of the hearing, the applicant suggested that his step-daughter could also give oral evidence. The applicant had not previously nominated her as a witness (the Tribunal notes that the applicant is legally represented). The Tribunal decided not to take oral evidence from the step-daughter but invited the parties, including the sponsor and her daughter, to provide written statements. The applicant’s representative provided a written submission dated 21 February 2022. It was not accompanied by written statements from the sponsor, her daughter or any other witness. No request has been made by the representative or the applicant to conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2022] AATA 1579
Case: [2022] AATA 1579
Decision Date: 23 February 2022

CaseChat Overview and Summary

The applicant, Mr. Singh, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal to grant him a Partner (Temporary) (Class UK) visa (subclass 820). The central issue before the court was whether the AAT had erred in law by failing to find that compelling reasons existed to waive the Schedule 3 criteria for the visa application, given that Mr. Singh did not hold a substantive visa at the time of his application.

The court was required to determine whether the AAT had correctly applied the relevant provisions of the *Migration Regulations 1994* (Cth) and the principles established in case law concerning the assessment of "compelling reasons" for the purpose of Schedule 3. Specifically, the court considered whether the AAT had given adequate weight to the applicant's circumstances and whether its conclusion that no compelling reasons were established was a reasonable one, or if it had misconstrued the nature of "compelling reasons" by equating hardship with such.

The Senior Member of the AAT reasoned that while the applicant may have experienced hardship, this alone did not satisfy the requirement for "compelling reasons" to waive the Schedule 3 criteria. The AAT found that the applicant had not demonstrated circumstances that were so exceptional or unusual as to warrant the waiver. The court affirmed this reasoning, concluding that the AAT had not erred in law and that the applicant had failed to demonstrate the existence of compelling reasons as required by the regulations.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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