Singh (Migration)

[2021] AATA 1085

Singh (Migration) [2021] AATA 1085 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasjot Singh

CASE NUMBER:  1924137

HOME AFFAIRS REFERENCE(S):          CLF2013/101726

MEMBER:Russell Matheson

DATE:12 April 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 12 April 2021 at 5:39pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – application made more than 28 days after last substantive visa held – compelling reasons for not applying criterion – relationship ceased – no contact, care or support to former partner or Australian citizen child – some degree of financial hardship if refusal affirmed – applicant’s uncorroborated claim of family violence by sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 male national of India born in November 1984. He applied for the visa on 9 May 2013 based on his relationship with his sponsor. At that time, 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). 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. On 4 May 2015 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because he did not meet the Schedule 3 criteria and there were no compelling reasons to not apply that criteria.

4. On 9 May 2016, the Tribunal affirmed the decision on the basis that the applicant did not meet the Schedule 3 criteria and there were no compelling reasons to not apply that criteria.  The applicant subsequently appealed to the Federal Circuit Court. 

5. On 10 February 2017, the Federal Circuit Court remitted the matter for reconsideration, on the basis the Tribunal erroneously found that being in a long standing genuine relationship, on its own, is not sufficient to establish compelling reasons for the waiver requirement to satisfy Schedule 3 criterion 3001.

6. On 18 May 2018, the Federal Circuit Court for a second time remitted the matter for reconsideration, on the basis the Tribunal fell into jurisdictional error because the Tribunal failed to engage in an active intellectual process of assessing the applicant’s evidence as to whether there was an Australian citizen child to the applicants relationship with the sponsor.  

7. The applicant appeared before the Tribunal on 14 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s cousin (Lavina).  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

9. The applicant is a national of India and he was previously married, from February 2009 to April 2012, with that marriage ending in divorce.  There were no children from that union.

10. The applicant first arrived in Australia in October 2009 on a student visa, which ceased in November 2011. He has not held a substantive visa since that date.

11. The ‘Sponsorship for a partner to migrate to Australia’ form states the parties first met on 1 September 2012 in Sydney, NSW.  The ‘Application for migration to Australia by a partner’ form states the parties first met on 6 January 2012 and they married on 12 September 2012.

12. The applicant claims that there is an Australian citizen child from that union. The applicant provided a copy of the child’s birth certificate from Blacktown Hospital dated 19 March 2018 indicating the applicant was the father and the sponsor the mother.

    FCCA

13. The previous decision made by the Tribunal on 18 May 2018 was remitted by consent by the Federal Circuit Court of Australia (FCCA) because the Minister conceded that the Tribunal fell into jurisdictional error because the Tribunal failed to engage in an active intellectual process of assessing the applicant’s evidence as to whether there was an Australian citizen child to the applicants relationship with the sponsor. In particular, the Minister concedes that the Tribunal’s reliance on the absence of DNA testing meant that it did not properly engage with the evidence submitted in support of the applicant’s claim to be the father of an Australian citizen child, which included:

    ·The applicant and sponsor’s oral evidence regarding the pregnancy;

    ·A NSW birth certificate indicating the applicant was the father of the sponsor’s child;

    ·A letter from Blacktown Mt Druitt Hospital dated 28 November 2017 indicating the sponsor and the applicant, as a pregnant couple, had attended an antenatal clinic to book an appointment for further antenatal care;

    ·A NSW Health Department antenatal care record indicating the sponsor had attended an ultrasound on 5 December 2017 and recording the name of the sponsor’s “husband” and “person for notification”; and

    ·A statutory declaration of the applicant setting out the extent of the applicant’s care arrangements and costs in respect of the sponsor’s child.

14. The Tribunal accepts on the oral and documentary evidence provided there is an Australian citizen child to the applicant’s relationship with the sponsor and is satisfied that there is no need for the applicant to provide DNA to ascertain if he is the child’s biological father. 

    Relevant law

15. 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).

16. 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.

17. 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).

18. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, who is an Australian citizen.

    Does the applicant meet Schedule 3 criteria?

19. The evidence before the Tribunal indicates the applicant travelled to Australia holding a Student visa in October 2009. That visa expired in November 2011 and his application for a further Student visa was refused by the Department and affirmed by differently constituted Tribunals on two occasions.

20. The Tribunal finds that the applicant last held a substantive visa when his Student visa expired in November 2011. He was not the holder of a substantive visa at the time he made the application for the Partner visa in May 2013. 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).

21. The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl.820.211(d)(ii).

22. 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 decided to set aside and substitute the cancellation decision.

23. The Tribunal has found that the applicant ceased to hold a substantive visa when his Student visa expired in November 2011. The Tribunal finds that that date is the ‘relevant day’ within the meaning of cl.3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in May 2013, 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.

24. Clause 820.211(d)(ii) allows for an exception to not meeting relevant Schedule 3 criteria, if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

25. 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.

26. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.

27. At the beginning of the hearing the Tribunal informed the applicant that he had not provided any additional information to the Tribunal to consider regarding compelling reasons for not applying the Schedule 3 criteria. The applicant responded that he has provided all the relevant information regarding compelling reasons to waive the Schedule 3 criteria to differently constituted Tribunals. He further stated that he had no other evidence and wanted the Tribunal to consider the information he has previously provided to differently constituted Tribunals.

28. The applicant informed the Tribunal that he was no longer in a relationship with his sponsor and had separated from her between July and September 2018. The Tribunal questioned the applicant if he has any contact with the sponsor and his child and whether he is providing any care and support to them. The applicant responded that he has no relationship whatsoever with the sponsor or his child and he does not provide any care or support, financial or otherwise to them.

29. The applicant stated although his relationship with the sponsor has ceased the Tribunal should consider the longevity of their relationship and the emotional support they provided to each other during the ups and downs during the relationship and the fact they have a child together are compelling reasons to waive the criteria. The applicant has previously provided a written submission the parties were married in September 2012 and were in a genuine and committed relationship. The applicant has provided a significant number of documents to previously constituted Tribunals addressing various aspects of his relationship with the sponsor and outlined the history of the relationship. The Tribunal accepts that the parties were in a relationship for approximately six years. 

30. The Tribunal notes the claim of the applicant and sponsor to be in a genuine relationship before the relationship ceased and the documents provided as evidence are supportive of their claim.

31. While a genuine spousal relationship is considered the basic requirement for a partner visa application, the Tribunal accepts that a genuine relationship could be a compelling reason for not applying the Schedule 3 criteria. However, the Tribunal in this case is not satisfied when considering all the circumstances that the genuineness, mutual commitment, emotional support and longevity of the parties’ relationship are, on their own, circumstances that should compel the Tribunal to not apply the Schedule 3 criteria given the relationship has now ceased to exist.

32. The Tribunal accepts on the evidence provided there is an Australian citizen child of the relationship. As previously stated, the applicant gave evidence that he is not providing any care or support to the child or mother and he has no relationship with them whatsoever. He further stated that there are no court custody orders in relation to the child. There is no evidence before the Tribunal of any custody or parental orders being obtained by the applicant to gain access to the child or any financial support being provided by the applicant towards the mother or child. Based on the evidenced provided it appears the sponsor is raising the child on her own as a single mother without the support of the applicant. The Tribunal is of the view that the existence of an Australian citizen child from the applicant’s relationship with the sponsor in this case does not constitute a compelling reason for not applying the Schedule 3 criteria because the applicant has no contact with the mother or child and he does not provide any parental care or support or financial support towards the child.

33. The Tribunal acknowledges that the applicant requested the Tribunal to consider previous compelling reasons to waive the Schedule 3 criteria that were provided to other constituted Tribunals. The Tribunal finds this problematic as the relationship has ceased. The applicant raised issues such as supporting the sponsor during pregnancy, the sponsor’s mental health issues related to adverse childhood circumstances, her medical conditions and termination of a past pregnancy (miscarriage) due to health concerns. The Tribunal accepts the termination of the sponsor’s pregnancy at an early stage. The Tribunal accepts these experiences would have been distressing for the applicant and sponsor but is also mindful that miscarriages or pregnancy related difficulties during the early stage of pregnancy are not uncommon. Additionally, the Tribunal accepts that the applicant has provided some degree of care comfort and emotional support to the sponsor during illness and her mental health issues due to her upbringing and considers this would be considered to be the basic elements of being in a genuine relationship. The Tribunal does not consider these circumstances individually or cumulatively constitute a compelling reason for not applying the Schedule 3 criteria.

34. The applicant has previously stated to the Tribunal that he would suffer financial hardship if he had to return to India. The Tribunal asked the applicant if he would suffer any financial hardship if he had to return to India and apply for a visa to return to Australia. The applicant informed the Tribunal he has investments in India and has transferred AUD 50,000 to his Indian bank account because he receives a better interest rate and he also has other savings in Australia. He further stated that he would not suffer any financial hardship and is currently driving trucks for a living now. The Tribunal accepts the applicant’s evidence that he has investments in India and can see no plausible reason the applicant could not access the financial assets and other savings he may have, if he had to apply for another visa offshore. The is no evidence before the Tribunal that the applicant could not apply for or obtain employment in the transport industry in India to supplement his financial assists. The Tribunal accepts that the applicant would suffer some degree of financial hardship regarding the income he could earn in India in the Transport industry compared to what he could earn in Australia. The Tribunal does not consider financial hardship in these circumstances a compelling reason to waive the criteria.

35. The applicant at the Tribunal hearing claimed his relationship with the sponsor had ceased and that he is the victim of Family Violence. He presented a signed and witnessed Federal Circuit Court of Australia (FCCA) Affidavit (File No: SYG1614) dated 25 August 2018. The Tribunal questioned the applicant as to the purpose of the Affidavit. The applicant stated that he wanted to let the court know what his wife was like and to show that he had been the victim of family violence. The applicant stated in the affidavit that his wife is addicted to drugs; she was arrested for stealing and fraud matters, charged with assault and she blackmailed him for money and threatened to deport him and she threatened to make arrangements for her friends to beat him up. The applicant also provided screen shots of a number of text messages exchanged between him and the sponsor as evidence of family violence. The applicant’s cousin gave evidence that she is living with the applicant and that she believed the applicant had suffered family violence because he had shown her the text messages on his phone. The Tribunal places little weight on her evidence as the Tribunal finds that it would be natural for the applicant’s cousin as a relative who is also living with the applicant to believe that the applicant had been a victim of family violence.  Perusal of the text messages shows the sponsor requesting and demanding sums of money ( $60, $100 and $250) for the care and support of her child and the money was for the purchase of baby formula, nappies and the child’s vaccination needs because she is unable to get  parental support from Centrelink because the applicant’s income is too high. The sponsor also states in the text messages that the applicant can call this ‘blackmail or whatever you want’ but she calls it duty of care. The sponsor also refers to a friend ‘getting out soon’ and tells the applicant he can explain the situation to him as to why he is not providing care and support to the child. The Tribunal finds some of the evidence somewhat problematic regarding family violence being perpetrated by the sponsor against the applicant. There is little corroborative evidence that supports the sponsor’s drug use and criminal convictions and the threat to have the applicant beaten up by friends of the sponsor, as she only refers to a person getting out soon. The Tribunal places little weight on the claims by the applicant and is not satisfied the sponsors alleged drug use and criminal convictions are relevant to the claims of family violence made by the applicant.

36. The Tribunal accepts that the sponsor had requested the applicant to explain to her friend why he was not providing financial support.to his child. The Tribunal accepts that the sponsor has made demands for small amounts of money but each time it appears the money is for the basic needs of her child as it appears that she is unable to receive Centrelink parenting payments. The Tribunal does not accept that these demands are blackmail and considers it reasonable for the sponsor to assume that the applicant would provide some financial support of their child as the biological father. The Tribunal is not satisfied that the affidavit provided by the applicant meets the statutory evidence requirements for either a judicially determined or non-judicially determined claim of Domestic/Family Violence and there is no other evidence before the Tribunal to corroborate his claims of family violence or that the applicant is going to meet the threshold required to determine if family violence has occurred. When questioned about the affidavit provided the applicant stated that he wanted the courts to know about his wife’s drug use and criminal history. The Tribunal asked the applicant why he had never raised the issue of family violence prior to the hearing and he responded that he was unsure of what family violence constituted. The Tribunal does not accept the applicant’s claims of family violence or ignorance of what family violence constituted. The Tribunal is of the view he initiated a claim of family violence to obtain a beneficial visa outcome and for the purpose of establishing consideration of compelling reasons by the Tribunal. The Tribunal is not satisfied it is compelled to grant the visa to the applicant as he has taken no further action to support his claim of family violence prior to or post hearing. The Tribunal does not find there is any substance to the applicant’s family violence claim and is of the view it is a bare assertion made by the applicant to strengthen his case for the grant of the visa. The Tribunal is not satisfied when considering the above circumstances either singularly or cumulatively, that there are compelling reasons to waive the Schedule 3 criteria.        

    Conclusion

1. Having considered the evidence before it, the Tribunal is not satisfied that there are, either separately or cumulatively, compelling reasons for not applying theSchedule 3criteria in this case. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

2. There is nothing to indicate that the applicant meets any of the alternative criteria cl.820.211(5) – (9).

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

   DECISION

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

   Russell Matheson
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.15A     Spouse

   (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

   (2)If the Minister is considering an application for:

   (a)a Partner (Migrant) (Class BC) visa; or

   (b)a Partner (Provisional) (Class UF) visa; or

   (c)a Partner (Residence) (Class BS) visa; or

   (d)a Partner (Temporary) (Class UK) visa;

   the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

   (3)The matters for subregulation (2) are:

   (a)the financial aspects of the relationship, including:

   (i)       any joint ownership of real estate or other major assets; and

   (ii)      any joint liabilities; and

   (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

   (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

   (v)     the basis of any sharing of day to day household expenses; and

   (b)the nature of the household, including:

   (i)       any joint responsibility for the care and support of children; and

   (ii)      the living arrangements of the persons; and

   (iii)     any sharing of the responsibility for housework; and

   (c)the social aspects of the relationship, including:

   (i)       whether the persons represent themselves to other people as being married to each other; and

   (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

   (iii)     any basis on which the persons plan and undertake joint social activities; and

   (d)the nature of the persons’ commitment to each other, including:

   (i)       the duration of the relationship; and

   (ii)      the length of time during which the persons have lived together; and

   (iii)     the degree of companionship and emotional support that the persons draw from each other; and

   (iv)    whether the persons see the relationship as a long term one.

   (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).

   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.