Singh (Migration)

Singh (Migration) [2021] AATA 1056 (7 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurpreet Singh
CASE NUMBER:  1809386
HOME AFFAIRS REFERENCE(S): BCC2016/496296 BCC2018/1555382 BCC2018/1555397
MEMBER:David Crawshay
DATE:7 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 07 January 2021 at 6:34pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant was not the holder of a substantive visa at the time of application – no sufficient compelling reasons to waive the Schedule 3 criteria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (the Act).
The applicant applied for the visa on 2 February 2016 on the basis of 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 delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d) because the applicant applied for the visa more than 28 days after his last substantive visa ceased and there were no compelling reasons to not apply the Schedule 3 criteria . A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 8 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. It was conducted remotely by means of Microsoft Teams video.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
EVIDENCE AT HEARING
The Tribunal first interviewed the applicant.
The Tribunal discussed with the applicant the parties’ financial situation. The applicant said that the sponsor had three separate loans – a car loan of around $30,000, a credit card loan of around $7,500 and a personal loan of around $15,000. The car loan was said to have been taken out for a car bought last year for around $36,000. The credit card loan was said to have been the result of purchasing household items such as furniture. The personal loan was said to have begun as a $20,000 loan the sponsor took out to help a friend in around 2013 or 2014. The applicant claims this friend ended up taking the money and running. The loan was paid down but then in 2016 the parties bought a car and the amount went back up to $20,000. As above, the remaining amount is now said to be in the order of $15,000. The Tribunal asked if the parties had applied the $10,000 the sponsor had withdrawn from her super in June 2020 to one of the debts in order to reduce the amount of interest paid. He said that they had not yet because there were still COVID-19 related issues. He said that the parties had saved money for a bad situation because they were both working casually. He said that the sponsor’s job as a rail protection officer for MCR is strict and she has been suspended before in 2019 for two-to-three months for not putting up flags for safety.
The Tribunal then discussed the sponsor’s employment and asked him why she had not decided to become a nurse. He replied that she has completed her studies but likes her current job. The Tribunal put to the applicant that nurses are needed and she would likely get paid more. He said that she will consider that option soon. The Tribunal asked how much the sponsor got paid and he replied that it was around $50,000-a-year. The Tribunal put to the applicant that nursing jobs on a job search website, including graduate positions, attract more and sometimes significantly more income than what the sponsor is currently on, and that would greatly help to pay down the debts. He replied that the parties will try to consider this.
The Tribunal asked that the basic minimum payments were for the parties. He replied that for the three loans the minimum is $440-per-week, comprising a car loan repayment of $140-per-week, personal loan repayments of $764-per-month and credit card loan repayments of $100-per-week. The applicant was asked where the parties live now, and he nominated a house in Claremont Meadows in which the applicant lives with the sponsor but with no one else. He said that the rent for the property was $520-per-week and the rental agreement was ongoing. The applicant was asked why the parties lived in a house and had not sought to find an apartment. The applicant replied that the house belongs to his uncle. He said that the rent for the property is less than the average for a four-bedroom house. The Tribunal asked the applicant what the parties were doing in a four-bedroom house. He said that they were living with a cousin, then a couple, and then a friend. He said that the parties had a pet dog. The applicant was asked if the rent reduced with more people living in the property, and he replied that it did.
At this point, the Tribunal put to the applicant that the parties have not chosen the cheapest options for living in terms of, for example, the purchase of a $36,000 car and renting a four-bedroom house and these were not wise decision to be made by people in debt. It put to him that there appeared to be scope for savings to be made in the sponsor modifying her lifestyle while the applicant was overseas. He replied that initially, when the parties moved into the house, there were only two loans and the parties shared rental payments with others. He said that now the parties have lots of debt, own a dog and therefore cannot move into a unit and own furniture that they have bought for the house. The Tribunal discussed whether the sponsor could move in with friends or housemates to lower the cost of rent, and he replied that she does not have many friends and that her friends live with their families. He said that it would be very hard for her to live with other people as she has had previous issues with the applicant’s cousin that he characterised as “little disputes” such as the allocation of housework, lack of food and preparing beef, and she was scared there would be personality differences. He said that people would not be comfortable with their dog scratching the furniture (their dog lives inside and outside). The Tribunal queried the parties’ wisdom in spending money on a dog, and the applicant replied that they went to the RSPCA with a friend and the parties got emotional because he was earmarked to be destroyed in 10 to 12 days.
The Tribunal then discussed with the applicant the ongoing COVID-19 pandemic. He replied that there is an issue because there are lots of cases of COVID-19 in India and not many medical facilities. He said that there were people suffering from the disease that were not able to be treated and there was a good chance he would not be treated. He said that there were not many flights going to India and not a lot of certainty about how long the pandemic would go on for. He said that Amritsar Airport is closed. He said that there are protests from Punjabi farmers in Delhi and Delhi Airport is closed. He said that the situation could last for four-to-five months. He said that the farmers have been prepared to strike for six months. The Tribunal immediately put to the applicant information from open sources that showed Delhi Airport was, in fact, open to flights. He replied that every entry to the Punjab has been closed. The Tribunal queried whether every entry had been closed, and he replied that they had been closed by farmers who won’t move until the government listens to their concerns.
The applicant said that there was a chance the second wave of COVID-19 would flare up over there. At this point, the Tribunal asked the applicant if he suffered from any conditions, and he replied that he did not. The Tribunal asked if he specifically suffered from any respiratory conditions, and again he replied that he did not. The Tribunal put to him that the circumstances described might not be compelling reasons as he did not suffer from any respiratory conditions that would put him at particular risk and he could use his best judgment to protect himself. It also posed the question to him about whether it could be compelling reason if everyone from a country as large as India could say that they were unable to go back because of COVID-19.
The applicant replied that he knew from his own circle people who did not have conditions but who had COVID-19. He also told the Tribunal that people in India are not educated and that he could take precautions, but others would not and he could not avoid this. The applicant said that there would be a cost involved if he were to reapply and this would make it hard for him. He said that his father was involved in the farmers’ protest and he would need to help him financially. The Tribunal put to the applicant that he would be well-placed to avoid COVID-19 if he were living on a farm and not in a built-up area. He replied that the number of cases of COVID-19 was increasing day-by-day according to reports, and there are not many facilities to deal with it. He said he was concerned that if he developed a small fever there is no place he could go.
The Tribunal put to the applicant that the evidence suggests COVID-19 particularly affects the elderly and people with respiratory conditions and that he was neither of those. He replied that he did not trust the medical system because people with COVID-19 are not treated well. He said that there is a risk because India is in the top three in terms of COVID-19 cases. The Tribunal put to him that India is the second largest country by population by a long way (the Tribunal since understands that India is second in the world in terms of the number of COVID-19 cases, but third in terms of the number of deaths from or with COVID-19). He replied that it was a risk to his health. The Tribunal put to him that there would always be a risk to his health, but India is a big country and he did not have the risk factors that would make him suffer badly from the condition. He said that the situation is bad and that people with COVID-19 are having their kidneys sold. He said that there are no precautions and no social distancing.
The Tribunal discussed the parties’ plans to start a family. The applicant said that the parties had been in the relationship for more than five years and they plan to start a family. He said that they had begun consulting doctors. When questioned on this by the Tribunal, he replied that the information was that everything should be safe and normal. He confirmed that there were no issues with the parties’ fertility. He was asked what had stopped the parties from having children since the parties first began their relationship. He said that it was the sponsor’s full-time study and then their preoccupation with other things. He said that the parties are settled and will plan a family.
The Tribunal put to the applicant that although the parties would need to defer having children for around two years (a figure that met with agreement from the applicant’s agent based on her experience), physically they would be able to do it. He said that the relationship was already a long one and there is pressure from his family. The Tribunal put to the applicant that it might be a tough thing for him to withstand, but his family would be understanding given that he would be in India with them. He said that it would be hard for the sponsor to deal with things.
The Tribunal discussed the sponsor’s family situation. He said that her biological parents are separated, that her father and brother live in Fiji and that he mother lives with a de-facto partner in Greenway whom she has had since the late-1990s. [Information deleted]. He said that the mother also did not accept the applicant as a son-in-law because he was a Sikh and the sponsor was Hindu. He said that the sponsor’s relationship with her mother was not good, and that her mother controlled her and she was not allowed to go out alone when she was living at home. He said that the sponsor and her mother only have contact over the telephone and not in person. He said that the sponsor only converses with her biological father over the telephone, and that he does not provide financial support to her.
The Tribunal asked the applicant if he considered there were any compelling reasons related to the claim that the parties had been in a long-standing relationship. He said that the parties are attached to each other and have a good bond with each other both emotionally and physically.
The Tribunal then proceeded to question the sponsor.
The sponsor confirmed the information given by the applicant in relation to the three loans, including the quantum of money still owing in each. She also spoke to the same details as given by the applicant regarding the alleged fraud she suffered at the hands of a friend. When asked by the Tribunal how she was able to secure such a loan given her youth, she said that she showed the bank her pay slips.
The sponsor confirmed that she was employed as a rail protection officer. When asked why she did not decide to become a nurse after her study finished, she said that she applied for jobs as a new graduate but was knocked-back for these positions. She said that if she leaves her current job, she did not know if she would be offered a job. She said that, for example, there are 4,000 people applying for 200 places at Liverpool Hospital. The sponsor said that with her basic salary and overtime (typically 42 hours at a rate of $34-per-hour) she earns around $50,000-a-year in her current job.
The sponsor told the Tribunal that the parties are just treading water financially. The Tribunal put to her that she could find savings in her lifestyle by moving to another place by refinancing the vehicle, by selling some assets and by putting the $10,000 against the loans and not incur so much interest. She said that the parties moved into their current place because she wanted to leave her family, and his family (being his uncle, aunt and cousins) were living in the same street. She said that the parties have a dog and it is hard to find a cheaper place or a unit. She said that she has no emotional support and his family is her support. She said that the parties would not be able to refinance the car loan as they already have a favourable interest rate. When it was put to her that the parties could sell their assets, she replied that they would not get more than around $10,000. The Tribunal put to her that she may have to settle with what she can get. The sponsor told the Tribunal that it would be hard for her to support herself, which would entail paying $350 to $400-a-week at a minimum. She said that she might also need to support the applicant if he were to return to India. The Tribunal asked about the potential for her to take in friends or housemates, noting the proximity of her current address to Western Sydney University. She said that her friends live with their families and she has issues with strangers. She said that had issues with previous co-tenants that accumulated.
The Tribunal asked the sponsor if her mother was still in a relationship with her [stepfather], and she replied yes. She said that she did not have a good relationship with her mother.
The Tribunal asked the sponsor if there were any compelling reasons relating to the parties’ relationship. She replied that at the beginning of the relationship she was going through a lot of issues and the applicant was the only support network she had. [Information deleted]. The sponsor said that she cannot live without the applicant. She said that she cannot trust strangers because of what she has been through.
POST-HEARING SUBMISSIONS
At the end of the hearing, the Tribunal agreed to the request by the applicant’s representative for additional time to provide more evidence and gave her seven days in which to do so
By email of 14 December 2020, the parties provided several documents by way of post-hearing submissions. These documents comprised a media report dated 11 December 2020 concerning the farmers’ protests in Delhi, as well as statutory declarations from both parties dated 14 December 2020.
The media report is considered below. It suffices to say that it confirmed that large-scale protests have been taking place in Delhi by farmers from the Punjab region (among others). The sponsor’s statutory declaration repeated her claims at hearing that she needed the applicant’s emotional and financial support. The applicant’s statutory declaration centred on the parties’ financial situation and presented some calculations about the sponsor’s potential ability to cope financially while the applicant was overseas.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the Schedule 3 criteria at the time of application and, if not, whether there are compelling reasons to not apply those criteria.
Does the applicant meet Schedule 3 criteria, or should those criteria not be applied?
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).
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
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 and is relevantly the last day when the applicant held a substantive visa.
The evidence in front of the Tribunal is that the applicant ceased to hold a substantive visa following the expiry of his student visa on 1 August 2014, and the present partner visa was lodged on 2 February 2016 which was more than 28 days after the relevant day.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
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.
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.

The Tribunal has based its findings on the information submitted by the parties and the applicant’s representative at the Department and Tribunal stages, along with the parties’ testimony and the oral submissions of the applicant’s representative at hearing.
Genuineness of the relationship
Much of this evidence is related to the parties’ relationship itself, and the Tribunal acknowledges the presence of countless utility, telephone and other bills and various other pieces of correspondence addressed to one or both parties at their claimed address. It does not doubt that the parties have been living at this address and it acknowledges that this evidence and the parties’ consistent testimony at hearing appear to demonstrate that their finances are integrated to a significant degree. The Tribunal also notes evidence to show that the parties have represented themselves to third parties as being in a relationship with each other and are recognised as such – their social media accounts list them as being in a relationship with each other since September 2014, and they have provided a number of declarations from friends and acquaintances attesting to the genuineness of their relationship.
However, and to the extent that the parties rely on this evidence to demonstrate the genuine and continuing nature of their relationship and how this would be counted as a compelling reason, the Tribunal has chosen not to make a finding on this aspect. The Tribunal notes in this regard that a genuine relationship between the parties would not, of itself, satisfy it that compelling reasons exist for not applying the Schedule 3 criteria – not least because a necessary criterion for the grant of a partner visa under cl.820.211(2)(a) is that the relationship between the parties be genuine (among other things). Moreover, while there may be some level of hardship experienced by parties who are separated due to the applicant applying for a partner visa offshore, such separation and hardship is common to most if not all parties in this situation and, frankly, it would be unusual if there were not some level of hardship involved. In this way, the mere fact of the parties being separated or even the presence of hardship would not, of itself, satisfy the Tribunal that compelling reasons exist for not applying the Schedule 3 criteria unless there was something about the separation or hardship that made it so.
Long-standing relationship?
Although the Tribunal has above chosen not to make a finding on the genuineness of the parties’ relationship, it is mindful that a relationship that is a long-standing relationship of two years or more may justify not applying the Schedule 3 criteria due to the hardship that results if those criteria were applied: Explanatory Statement, Migration Regulations (Amendment) 1996, No. 75, cl.10. A cursory glance over the evidence of the parties’ claimed relationship, including the evidence mentioned above, shows that they claim to have met on social media and then in person in September 2014. They married in August 2015 and claim to have committed to a shared life together to the exclusion of all others in September 2015. The Tribunal finds that, at the time of application in February 2018, the parties’ relationship had been long-standing.
Notwithstanding, while the Tribunal accepts that the parties have been in a long-standing relationship, it is not satisfied that this fact alone amounts to compelling reasons to justify not applying the Schedule 3 criteria. Other incidents of the separation and hardship, either individually or cumulatively, must cause the Tribunal to be satisfied that those compelling reasons exist. These are explored below.
The financial impact of the applicant’s absence
As above, the parties gave evidence that the sponsor has three separate debts which are currently being paid off. The applicant said that the minimum payment for these three debts combined is $440-per-week. The parties told the Tribunal that they pay $520-per-week in rental payments for their current address. Through questioning, the Tribunal discovered that the sponsor is employed in a security job for which she earns around $50,000-a-year. Through evidence submitted pre-hearing, the Tribunal learnt that she had a taxable income for FY2018/2019 of $76,133, comprising salaries from her jobs in security and as an employee of a supermarket. In a statutory declaration of 6 June 2020, the applicant said that the parties had been struggling financially because his working hours had been reduced to around 20 hours-per-week due to COVID-19. He stated that he also worked in a security job.
The Tribunal acknowledges the difficult financial situation the parties find themselves in. However, it also finds it concerning that the parties had shown little if any willingness to reduce their living costs, at least over the last two years, in response to these circumstances. The twin decisions, both taken relatively recently, to buy a reasonably large and expensive vehicle in 2019 and to take on a pet whom they now need to spend money on and who limits their chances of moving into a smaller residence are extremely unwise for people who are living under the strain of three sizeable debts. The Tribunal also notes that these decisions were taken well after the visa was lodged and even after the visa was refused by the delegate. In that sense, the parties were undoubtedly on notice of the very real possibility of the applicant having to return to India. To the parties’ credit, they have acknowledged their lack of insight into the effects of these decisions in their statutory declarations received post-hearing.
Additionally, the Tribunal finds that the parties at hearing had given very little thought to the sponsor either moving to a smaller residence with cheaper rent or taking on one or more housemates at her current residence in order to defray rental costs in the event of the applicant returning to India. It considers that the former option is open to her and would be relatively painless given that the parties are currently on an ongoing lease and there would be little if any cost involved in breaking the lease. The latter option is a very real possibility given the proximity of their current residence to Western Sydney University and the fact that the residence has four bedrooms. The Tribunal acknowledges evidence from the parties that the sponsor in particular may have experienced some minor issues with co-tenants in the past that “accumulated”. It has also considered that the sponsor may not be comfortable with strangers given the abuse she claims to have experienced. However, the Tribunal does not accept that these factors address its concerns at least in relation to her unwillingness to bring housemates into her current residence – with a degree of diligence on her part or on the part of a third party acting on her behalf potential housemates can be profiled and screened for suitability and compatibility.
The Tribunal has considered that the sponsor took the opportunity to withdraw $10,000 from her superannuation account but has not applied it towards one or more of the debts. While the Tribunal acknowledges that the parties may wish to use the money for a contingency related to COVID-19 or the sponsor’s job, which the applicant told the Tribunal entailed some strict provisions, it considers that the applicant’s absence from Australia should be seen as a more present and pressing contingency for which the sponsor should be planning. The Tribunal has no doubt that the interest repayments would become more manageable for the sponsor if at least part of the money, let alone all, were used to pay down one or more of the debts. She would, for instance, be able to eliminate her credit card debt at a stroke, ensuring she would no longer need to pay interest on that sum, and still have money left over. Alternatively, she could pay down her personal loan which cost her over $3,200 in interest repayments in FY2019/2020 alone (at a rate of 15.5 per cent in that financial year).
In his statutory declaration received post-hearing, the applicant addressed the Tribunal’s concerns above somewhat by providing it with some itemised calculations of the likely effect of his absence on the sponsor’s finances. The calculations are reasonably detailed and appear to take into account some contingencies like the sponsor moving into other accommodation. Importantly, they advert to the fact that the sponsor could enter into shared accommodation in order to minimise expenses, something which seemed unreasonable for the sponsor to consider at hearing. The sums purport to show that the sponsor would suffer from a shortfall of at least $262-per-week based on a salary of $1,000-per-week.
The Tribunal is mindful of not getting bogged down in the minutiae when it comes to an assessment of compelling reasons. It takes the bulk of the applicant’s sums as being a reasonable estimate of expenses, although it does find it speculative to say that the sponsor would need to set aside $50-per-week to support the applicant if the applicant was being supported in India (see below) and finds it implausible without more evidence why she would need to spend $200-per-week on groceries if she were to share a house with others but only $100 if living by herself. However, its main concern is that the applicant did not base any calculations on the sponsor sharing her current residence with housemates, remembering that the residence has four bedrooms and can therefore accommodate another three sources of rent. Managed well, the Tribunal reasonably believes that this has the potential to greatly lessen the amount she would need to pay in rent and could by itself lessen or even eliminate the shortfall based on the applicant’s own sums. Moreover, the parties did not present any evidence as to why the sponsor could not work a second job in addition to her main security job. While this may be difficult for her, the Tribunal notes that she did so during FY2018/2019 when she made over $76,000 in taxable income according to her tax return.
Overall, the Tribunal finds that while the sponsor may suffer from not having the applicant onshore to support her financially, this hardship could be lessened significantly through measures that are reasonable and open to her to take, such as through modifying her lifestyle by either downsizing to a new residence or taking on housemates in her current residence, selling assets such as furniture and appliances, taking on a second job and by applying the $10,000 she had taken from her superannuation to one or more debts. The Tribunal reasonably believes that such measures would ensure the sponsor could service her debts during the period when the parties are physically apart while allowing her to live away from her mother and step-father which does not appear to be a reasonable option for her.
The Tribunal is not satisfied that the circumstances related to the financial impact of the applicant’s absence are compelling reasons for not applying the Schedule 3 criteria.
The applicant’s support in India
The applicant raised a submission at hearing, albeit not very well-developed, that he would need to support his family while in India because, as he claims, his father has been involved in the protests by farmers from the Punjab region. The applicant gave evidence that the protests could continue for another six months. An article of 11 December 2020 was provided by way of post-hearing submissions which confirmed that large protests involving tens of thousands of famers from the Punjab region, Haryana and Uttar Pradesh had been taking place in Delhi.
While the Tribunal acknowledges the applicant’s evidence that protests have been taking place and may well continue for the foreseeable future, there is no evidence in front of it other than the applicant’s testimony at hearing to show that the applicant’s father has ever taken part in the protests. Even if the Tribunal were to accept that the applicant’s father was involved in the protests, there is no evidence to show that the applicant has been supporting his father or his family in India during the time he claims his father was protesting, which is significant in itself as large-scale protests have been taking place in some form or another since September 2020 according to open sources.[1]
[1] “Farmers observe Bharat Bandh in protest against agriculture bills; cops in Punjab, Haryana on standby”, The Statesman, 25 September 2020.
Relatedly, the Tribunal notes evidence given by the sponsor that she would need to support the applicant while he is in India. It has not seen any other evidence to suggest that the applicant’s family would be unable to support him while he is over there, and again notes that there is no evidence other than the applicant’s testimony to show that his father is involved in protests. Absent such evidence, the Tribunal is not satisfied that the applicant could not be supported financially by his family and would require support from other sources such as the sponsor.
The Tribunal is not satisfied that the circumstances claimed by the applicant amount to compelling reasons.
COVID-19 pandemic
The Tribunal has considered whether circumstances related to COVID-19 in India are compelling reasons. A claim was put forward in pre-hearing submissions that the applicant was worried for his health if he were forced to go back to India during the COVID-19 pandemic, where the pandemic was “out of control”. The submissions continued by stating that “[i]t is likely that the Review Applicant would be exposed to Covid-19 and his health would be affected”. This submission was discussed in a more detailed manner at hearing, with the applicant’s arguments including that there are a lot of cases in India with few medical facilities, meaning that people were not able to be treated, and that even people without pre-existing conditions can develop COVID-19.
The Tribunal has considered this evidence but is not satisfied that the circumstances detailed amount to compelling reasons. Although India is suffering from rising cases of COVID-19 (but they have yet to experience a “second wave”), the applicant is a young male who told the Tribunal that he suffers from no conditions, let alone any respiratory conditions. While this fact alone does not discount the risk of his developing COVID-19, it is reasonable to conclude based on this that he is at a very low risk of developing serious symptoms that would entail him needing extensive medical support in the event that he developed the condition. The Tribunal also considers that he would be able to exercise his better judgment in, for instance, avoiding areas of high-risk activity – in this regard, it believes he is well-placed to manage his movements given that his family lives in a rural setting and not in a more built-up area. The Tribunal does not accept that he would be unable to travel to his home in the Punjab region because of the farmers’ protests and blockades of the land routes. At least at the time of this decision, Amritsar Airport is open and receiving flights from Delhi and from some international ports.
The Tribunal finds no compelling reasons here.
The parties’ plans to start a family
In a pre-hearing submission, the applicant’s representative stated that the parties are trying to conceive a child. The submission stated that there would be hardship flowing from the applicant needing to travel overseas owing to the delay in family planning for “over two years” until the visa is approved, as well as the fees associated with a further visa application and a delay in repayment of the existing debts.
At hearing, the applicant told the Tribunal that there were no problems identified with the parties’ fertility, including by doctors whom the sponsor attended who in fact said that everything should be “safe and normal” according to the applicant. The Tribunal reasonably believes that a delay of around two years would not pose problems for the parties’ physical ability to conceive a child. In terms of the need for the applicant to pay another application fee, the Tribunal acknowledges that this is another cost on top of existing debts and expenses, but one which could be managed with prudent financial management. In relation to the delay in repayment of the existing debts, the Tribunal accepts that this may in-turn delay their plans to start a family but again does not consider such a delay unreasonable given the absence of any problems associated with their fertility.
The circumstances related to the parties’ plans to start a family are not a compelling reason.
The applicant’s emotional support to the sponsor
The Tribunal has considered whether compelling reasons exist based on the emotional support given by the applicant to the sponsor.
The Tribunal considers that the sponsor gave very forceful and emotional testimony in relation to the parties’ relationship and particularly in relation to the emotional support that the applicant has offered her. The Tribunal accepts that the applicant’s support has been a reason why she was able to move out of the family [home]. This is certainly not insignificant. The Tribunal also accepts that the applicant’s support has been important to the sponsor in circumstances where she has been effectively shut out by her mother and stepfather and where her father and brother are offshore in Fiji.
It is to the applicant’s credit that he has been able to assist the sponsor in this way over the course of the parties’ relationship. However, the Tribunal does not consider this support to be a compelling reason in itself for not applying the Schedule 3 criteria. It considers that the parties would have the technical means by which to communicate with one other during their physical separation from each other, and in that way would be able to continue their relationship and the applicant continue to offer the support that he has given. The Tribunal also notes that the parties have endured frequent periods apart, such as during times when one party had taken an overseas trip without the other, but significantly when the sponsor travels and works in remote locations for two-week periods every month as part of her job (as stated by the applicant in his post-hearing declaration). It reasonably considers that these regular periods apart from each other would have given the parties ample opportunity to experience living separately while offering support to one another.
The Tribunal is not satisfied that there are compelling reasons related to the support given by the applicant to the sponsor.
CONCLUSION
The Tribunal has read the evidence and submissions of the parties and the applicant’s representative and has heard the parties’ testimony at hearing along with further oral submissions by the representative. Having considered all the evidence and the parties’ circumstances and for the reasons above, it is not satisfied that they constitute compelling reasons for not applying the Schedule 3 criteria on an individual basis.
The Tribunal is mindful that although each matter does not individually give rise to compelling reasons, it must also consider whether the evidence and the parties’ circumstances amount to compelling reasons when taken together. Having considered them in combination, including especially the fact of the relationship being a long-term relationship, the claimed financial and emotional impacts of the applicant’s absence and the COVID-19 situation in India and its likely effect on the applicant, it is not satisfied that they constitute compelling reasons for not applying the Schedule 3 criteria.
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).
The Tribunal is not satisfied that the applicant meets any of the alternative subclauses in cl.820.211. Specifically, there is no evidence that the applicant has been the holder of a Prospective Marriage visa (TO-300).

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.
David Crawshay
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.

[2021] AATA 1056

7 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction