Singh (Migration)

[2020] AATA 5596

Singh (Migration) [2020] AATA 5596 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harvinder Singh

CASE NUMBER:  1837270

HOME AFFAIRS REFERENCE(S):          BCC2018/4004642

MEMBER:Justin Owen

DATE:24 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2020 at 9:29am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – extensive visa history including refusal of student visa and lengthy period as unlawful non-citizen – application made after sponsor granted permanent residency – long-standing, genuine and continuing relationship and valid marriage – best interests of Australian citizen child – potential hardship to sponsor and her business – COVID-19 travel restrictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d), Schedule 3, criterion 3001(2)(c)(i)

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Singh v MHA [2020] FCAFC 7
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 Home Affairs 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 29 June 2018 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 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 applicant did not satisfy cl.820.211(2).  The delegate found that the applicant was not the holder of a substantive visa at the time he lodged the Partner visa application.  The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the applicant, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria.

4. The Tribunal exercised its discretion to hold the hearing by MS Teams video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal via MS Teams video conference on 22 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Ms Dilraj Kaur Sangha. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing via MS Teams video conference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them. 

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

9. 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).

10. 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.

11. The applicant provided to the Tribunal a copy of the Departmental decision record.  It indicates the applicant arrived in Australia on 4 May 2008 on a Subclass TU-573 Student visa that ceased on 3 June 2008.  He was then granted a further TU-573 Student visa that ceased on 2 September 2010.  He lodged a TU-572 Student visa application on 2 September 2010, which was refused by the Department on 14 December 2010.  He then appealed this decision to the then Migration Review Tribunal on 13 January 2011.  The Department’s refusal was affirmed by the Tribunal on 13 September 2011.  The applicant subsequently applied for Ministerial Intervention on 12 October 2011, which was refused on 19 January 2012.  The applicant applied for Ministerial Intervention again on 2 February 2012, which was declined again on 20 February 2012.  The applicant was granted a Bridging Visa E on departure grounds on 27 February 2012.  He was granted a further Bridging Visa E on departure grounds on 5 March 2012.  The applicant did not depart Australia but remained as an unlawful non-citizen for over 6 years from 15 March 2012 until he was granted a Bridging Visa E on 3 July 2018 in association with this Partner visa application that was lodged on 29 June 2018.     

12. 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. 

    Criterion 3001

13. 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.

14. The Tribunal finds that the applicant last held a substantive visa on 2 September 2010 when his TU-573 Student visa ceased.  The Tribunal finds that that date is the ‘relevant day’ within the meaning of cl.3001(2)(c)(i) of Schedule 3.

15. The applicant did not lodge his Partner visa application until 29 June 2018, nearly 8 years since he last held a substantive visa.       

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

    Compelling reasons

17. 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.

18. 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.

19. The applicant was asked by the Tribunal to provide what he considered as compelling reasons to apply the waiver. 

20. The applicant has submitted that his claimed child – a girl, Miss Gurjind Kaur Khalsa, born October 2018- represented a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The applicant both orally at hearing and through his representative’s written submissions, has asserted that the departure from Australia by the applicant to lodge a further Partner visa application from offshore will have a detrimental impact upon both Miss Khalsa and the sponsor. It is asserted that the detrimental impact on both parties is a compelling reason for the Tribunal to exercise a waiver of the Schedule 3 criteria. 

21. The applicant, through his representative, wrote that it was in the best interests of the child as an Australian citizen to allow the family to remain together.  The applicant, through his representative, claimed the Commonwealth of Australia has an obligation to do so and stated that Australia, as a signatory to the United Nations Convention on the Rights of the Child, should allow the family to remain together.   The Tribunal rejects this argument concerning the Convention.  The issue before the Tribunal is whether the applicant, given he is not the holder of a substantive visa at the time of application, is able to demonstrate that compelling circumstances exist for a waiver of the Schedule 3 criteria in his Partner visa application.  If he is unable to do so then he is expected to lodge a valid Partner visa application offshore on the basis of his genuine and continuing relationship with his spouse, the sponsor. The applicant retains an ability to return and migrate to Australia on the basis of his relationship with his spouse if he is in a genuine and continuing relationship.  The Tribunal is of the view that these requirements represent adherence to the legislation contained in the Act and the Regulations rather than a breach of any of Australia’s international obligations as a signatory to the UN’s Convention on the Rights of the Child.  The Tribunal does not consider these arguments concerning the Convention on the Rights of the Child represent in any way a compelling reason for it to waive the Schedule 3 criteria.   Singh v MHA [2020] FCAFC 7 at [62].

22. The Tribunal has considered the applicant’s more general concerning the best interests of the applicant and sponsor’s claimed child as a consideration for the waiver of the Schedule 3 criteria.  The applicant has asserted that it is in the best interests of the child that the family stay together.  The Tribunal has carefully considered this broad claim in the context of the arguments that have been put forward justifying a waiver of the Schedule 3 criteria.  On the basis of its findings below, the Tribunal does not consider the best interests of the child, based on the circumstances of this particular matter, represent a compelling reason for it to waive the Schedule 3 criteria.   The Tribunal is of the opinion that the applicant will remain able to continue to provide his claimed child with emotional support if he is compelled to reapply offshore for a Partner visa.  The Tribunal is of the opinion the sponsor, on the evidence, will be able to physically provide for the child and access government financial assistance to support in the provision of services such as childcare as an Australian permanent resident.  The sponsor confirmed at the hearing she already receives Commonwealth Government financial benefits via the Family Tax Benefit.  She has her own business, run from the home, that appears on the testimony of the applicant and sponsor to be successful.  Notwithstanding COVID restrictions, the Tribunal notes the sponsor and the child retain the ability to apply to travel offshore to spend time with the applicant whilst his Partner visa is processed.  The Tribunal notes in October 2020 the Indian Government restored the right of Overseas Citizens of India (OCIs) and foreign nationals to travel to India (except on Tourist visas).  The sponsor and her child can apply to the Department of Home Affairs in Australia for a special exemption from the Department to travel to India on compassionate grounds:  The Tribunal accepts that the situation in the eyes of the applicant and sponsor is not ideal and they would prefer to remain together, and the parties may find the situation temporarily more challenging whilst the Partner visa is processed offshore. The Tribunal does not, however, consider on the evidence before it that the interests of their claimed child will be adversely affected in any significant way should the applicant, be required to reapply for a Partner visa offshore.  The Tribunal does not consider the general argument concerning the best interests of the child represents in the circumstances of this case a reason for it to waive the Schedule 3 criteria

23. The Tribunal notes that the applicant has supplied a copy of a Victorian Birth Certificate for Miss Gurjind Kaur Khalsa.  Miss Khalsa was born October 2018, meaning she is just over 2 years of age at the time of decision.  The applicant and sponsor are listed as the child’s parents.  Further medical evidence has been submitted naming the sponsor as the child’s mother.  For the purposes of this review, the Tribunal accepts that the applicant is the father and the sponsor is the mother of Miss Khalsa. 

24. The Tribunal explored the applicant’s daughter Miss Khalsa as a compelling reason with the applicant at the hearing.  The applicant stated that his daughter was born and brought up in Australia.  He stated that if the family had to return to India it would be difficult for his daughter to adjust to the new environment and life for children – with poor health care and bad pollution – was harder than in Australia.  The Tribunal accepts that Australia enjoys a higher standard of living than India and an advantage in areas such as universal health care and pollution.  The Tribunal notes, however, that there is no requirement for Miss Khalsa to go overseas.  She is an Australian citizen whilst her mother, the sponsor, also has the right to remain in Australia permanently.  The Tribunal notes that any decision for Miss Khalsa to travel to India is one for the applicant and sponsor collectively.  The Tribunal notes that even if she were to travel with her parents to India, she has the right as an Australian citizen to return with the sponsor (subject of course to existing COVID-19 restrictions and requirements pertaining to quarantine periods).  Any return to India to lodge a Partner visa application from offshore on the part of the applicant is likely to only be a temporary state of affairs should the relationship between the applicant and sponsor be genuine and continuing as claimed:  the Tribunal notes that 75% of offshore Partner applications are processed within 17 months The Tribunal recognises the existing restrictions on the entry of temporary visa holders to Australia at the time of decision due to COVID-19 but these are a temporary move and the Tribunal notes the Government’s expressed intention to reopen Australia’s international borders: On the basis of the evidence before it, the Tribunal does not consider the lifestyle and environment of India – and its potential impact upon the applicant and sponsor’s child – is a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The Tribunal does not consider the period of time that it may take to process the applicant’s offshore Partner visa application and any existing restrictions on temporary visa holders from entering Australia – and the potential impact of these factors on the relationship between Miss Khalsa and the applicant – as compelling reasons for a waiver of the Schedule 3 criteria.   

25. The applicant, through his representative, made a written submission dated 18 October 2020 asserting that Miss Khalsa requires the joint care of both parents.  It was asserted that parents play a positive and important influence on the child’s life and both needed to be actively involved.  It was claimed that Miss Khalsa will feel the negative impact of the absence of her father on days like birthdays, Christmas and other major events.  The Tribunal accepts that the applicant and sponsor would prefer to remain together and with their daughter whilst the applicant’s Partner visa application is processed.  The Tribunal notes, however, that any absence of the applicant from Miss Khalsa will only be a temporary state of affairs – as the Tribunal has noted, 75% of offshore Partner visa applications are processed within 17 months -  if his relationship with the sponsor is genuine.  Whilst the Tribunal accepts there is a degree of hardship for the period that the applicant is offshore, the Tribunal does not consider this to be an unusual or onerous state of affairs in a situation where an applicant is lodging an offshore Partner visa.  The Tribunal has noted the applicant’s written submissions which state that maintaining contact by telephone or social media is inadequate as distant relationships have ‘emotional detachment.’ It is claimed by the applicant’s representative that ‘warmth and love cannot be transmitted over the telephone or through social media’.  The Tribunal disagrees with this view.  The Tribunal is of the firm view that individuals can provide each other with genuine and strong emotional care and support via regular social media and telephonic communication thanks to technology today.  The applicant can maintain daily or even more frequent contact with his daughter if he so desires. Whilst this may not be the same as his physical presence, the Tribunal notes that this need only be a temporary state of affairs with the vast majority of offshore Partner applications being processed within 17 months and 90% in less than two years.  Notwithstanding COVID restrictions and the current need to seek Australian Government permission, the Tribunal notes that the sponsor and his daughter can choose to travel to India or a third country offshore should she desire to rendezvous with the applicant. Notwithstanding COVID restrictions, the Tribunal notes the sponsor and the child retain the ability to apply to travel offshore to spend time with the applicant whilst his Partner visa is processed.  The Tribunal notes in October 2020 the Indian Government restored the right of Overseas Citizens of India (OCIs) and foreign nationals to travel to India (except on Tourist visas).  The sponsor and her child can apply to the Department of Home Affairs in Australia for a special exemption from the Department to travel to India on compassionate grounds:  The Tribunal accepts there is a degree of hardship for the applicant’s daughter but the Tribunal does not consider it to be unusual, onerous or, on the circumstances before the Tribunal, a compelling reason for it to waive the Schedule 3 criteria.

26. It was claimed by the applicant in his written submission that there would be no one to look after Miss Khalsa if the sponsor becomes unwell or incapacitated.  The Tribunal notes that the sponsor is an Australian citizen.  Whilst the Tribunal notes Miss Khalsa is not currently attending childcare, her mother, the sponsor, has access to heavily subsidised childcare through the Commonwealth Government that can be utilised to provide support during the day should the sponsor be incapacitated through work or illness. Day care can be accessed on an ongoing basis or in some cases on a short-term basis.  Whilst noting the claims of the very limited family support available to the sponsor, the applicant also stated at the hearing the sponsor’s brother resides in Australia, meaning that family support may potentially be occasionally obtained if a situation necessitated this.  The Tribunal furthermore notes that the potential of a carer/parent becoming unwell or temporarily incapacitated is a risk familiar to most parents of young children.  The Tribunal does not see this risk as unusual and does not see it as representing a compelling reason its own right for a waiver of the Schedule 3 criteria.   

1. The applicant also asserts the hardship that the sponsor will face if she is required to both work as the ‘bread winner’ and look after Miss Khalsa is a compelling reason for the waiver of the Schedule 3 criteria.  It is asserted that the applicant is currently playing an ‘important parental role in the child’s caretaking and upbringing’.  The Tribunal has considered the matter of hardship and the impact any requirement for the applicant to depart Australia will have upon her.  The Tribunal accepts there will be a degree of hardship on the sponsor should the applicant be compelled to depart Australia to lodge a new Partner visa application from offshore.  The Tribunal notes that hardship on the sponsor can in some cases constitute a compelling reason for the exercise of the waiver.  The Tribunal has considered the hardship – financial, emotional and practical – that the sponsor may face if the applicant is required to depart Australia.  It does not, on the evidence before it, consider this hardship to be a compelling reason for it to waive the Schedule 3 criteria. 

2. The Tribunal discussed the issue of hardship with the applicant and the sponsor at the hearing.  The applicant stated that he and the sponsor currently share looking after their household.  He stated that he spends considerable time with his daughter, especially due to the sponsor being focused on her own work which is a home-based trucking business that also requires her to be out of the home checking on work from time to time.  He stated that the business was taking 6 to 8 hours per day of the sponsor’s time. 

3. The Tribunal asked the applicant what specific support he provided the sponsor.  He replied whatever she needs, he helps.  The sponsor stated that the applicant spends most of the day with Miss Khalsa.  The applicant claimed he did everything for their daughter as the sponsor was on call due to her business.  The Tribunal found the applicant’s testimony as to the assistance he provides – and the hardship the sponsor will face should he be required to depart Australia - both vague and tenuous.    

4. The Tribunal nevertheless accepts that the applicant provides some support to the sponsor both in relation to their household, the care their daughter requires and with the sponsor’s business, as the sponsor states the applicant also works for up to 15 hours per week. The Tribunal, however, considered the evidence of the support the applicant provides to the sponsor – and the hardship she will face should he be required to depart Australia and reapply for a Partner visa from offshore -  to be limited and notes that the separation, if this is a genuine relationship, will only be temporary with the vast majority of offshore Partner applications being processed within 17 months and 90% in less than two years.   The Tribunal does not consider the physical support the applicant claims to provide the sponsor and the child Miss Khalsa – and the hardship the sponsor may face - to be compelling reasons for it to waive the Schedule 3 criteria. The Tribunal is of the view that some degree of hardship is to be expected when applying for an offshore Partner visa application.  The Tribunal accepts that the sponsor will be taking on greater responsibility for the child if the applicant is compelled to return offshore temporarily to lodge a Partner visa application and this may include further household duties and greater challenges juggling running a business and a household. The Tribunal accepts she has very limited family support who can provide care.  The Tribunal is also of the opinion that, as discussed in this decision, there are a range of measures available to the parties to mitigate this temporary hardship such as government and community assistance and the applicant’s ability to continue to provide emotional support from offshore.  In relation to the work the sponsor states the applicant provides to her business, the Tribunal notes there is no actual evidence of the work the applicant actually undertakes for the sponsor.  The Tribunal does not consider, in these particular circumstances, that the loss of the applicant’s support in Australia to the sponsor to be a compelling reason to waive the Schedule 3 criteria.  

5. The Tribunal has considered the potential impact upon the sponsor’s business by the applicant’s departure from Australia as a compelling reason for the exercise of the waiver.  There is little corroborative evidence pertaining to this trucking business before the Tribunal beyond the testimony of the applicant and sponsor, though for the purposes of this review the Tribunal accepts there is a business.  The sponsor stated that the business has been operating for around 4 years and usually has around 6 employees (the impact of Covid notwithstanding).  The sponsor stated plainly that if the applicant is required to depart Australia then she will leave too.  She stated that the departure of the applicant will be essentially fatal to her business as she would be unable to focus both on her child and the business together. 

6. The Tribunal has considered the submissions of the applicant and sponsor in relation to the sponsor’s business but does not consider they are compelling reasons for it to waive the Schedule 3 criteria.  Any decision the sponsor makes to travel with the applicant to India is a question that she and the applicant must decide.  There is no requirement for the sponsor and Miss Khalsa to travel with the applicant to India whilst he lodges an offshore Partner visa application: that is purely a personal decision for them to make.  The sponsor may remain in Australia and continue operating her business if she so desires.  Whilst the Tribunal accepts there will be greater hardship in relation to also providing greater care of her daughter Miss Khalsa whilst the applicant is offshore, the Tribunal considers there is a range of Commonwealth Government help available that can mitigate the hardship and assist the sponsor with the ongoing care of her daughter.  The sponsor stated at the hearing that she already received Family Tax benefits through the Commonwealth Government.  The applicant and sponsor stated that they did not currently utilise childcare and they subsequently do not receive Childcare benefits.  The Tribunal notes the Childcare Subsidy - covering in cases up to 85% of childcare fees may also be available if the sponsor needed to utilise childcare in assisting in the care of her daughter whilst she is working.  The Tribunal has considered the potential and claimed impact of the applicant’s departure from Australia on the sponsor’s business.  It does not consider it represents a compelling reason for the Tribunal to waive the Schedule 3 criteria.      

7. The Tribunal has considered the issue of emotional hardship that may be faced by the sponsor.  The Tribunal accepts there will be a degree of emotional hardship faced by the sponsor if the applicant is required to depart Australia.  The Tribunal, however, notes the oral testimony of the sponsor that she would depart Australia with the applicant if he was compelled to depart offshore to lodge a new Partner visa application.  The Tribunal notes in October 2020 the Indian Government restored the right of Overseas Citizens of India (OCIs) and foreign nationals to travel to India (except on Tourist visas).  The sponsor and her child can apply to the Department of Home Affairs in Australia for a special exemption from the Department to travel to India on compassionate grounds:  The Tribunal again notes this is a personal decision for the sponsor and applicant to make.  She is not required to depart Australia.  The Tribunal does not consider this a compelling reason to waive the Schedule 3 criteria. 

8. The applicant stated at the hearing that should he, the sponsor and their daughter depart Australia, then they would be forced to sell everything and return to India.  He stated that they would lose all of what they have built up over the past decade.  The Tribunal does not consider this a compelling reason to waive the Schedule 3 criteria.  There is no requirement for the sponsor and their daughter to relocate to India: that is a personal decision for the family to make.  There is no requirement to divest themselves of the sponsor’s trucking business: whilst operating it may be more challenging with extra family responsibilities whilst the applicant is offshore, the Tribunal does not accept on the evidence that the sponsor is unable to continue operating her business.  There is no reason before the Tribunal as to why she could not bring into the business some external assistance if necessary, given she may be facing extra caring responsibilities on a temporary basis whilst the applicant lodges an offshore Partner visa application.

9. Further to this, the applicant has submitted in his written submission that the impact on repayment of the family’s home loan is a compelling reason justifying the waiver of the Schedule 3 criteria.  The applicant stated that their family home is mortgaged with ANZ Bank with a loan balance of almost $656,968.  The current monthly repayment is $2,258.  Various bank statements confirming the mortgage and ownership have been supplied and are accepted by the Tribunal. 

10. The applicant has submitted that if the sponsor has to look after their daughter Miss Khalsa by herself in Australia, then that will reduce her capacity to earn a living for the family and the family will fall short of making monthly repayments to the bank.  The applicant states that this will mean the loan is in default and the sponsor will find it very difficult to maintain repayments to the bank. 

11. The Tribunal does not accept that the home loan and the repayments that are required represent a compelling reason for it to waive the Schedule 3 criteria.   The Tribunal accepts ownership of property and a mortgage is a significant commitment.  The Tribunal notes that the mortgage and title of the property is in the name of the sponsor.  It is her responsibility for meeting the mortgage obligations to the ANZ Bank.  The loan appears to have been made to the sponsor on the basis of her income.  The Tribunal accepts that there would be greater pressure on her employment should she also have to balance an increase in caring responsibilities for Miss Khalsa whilst the applicant is offshore.  The Tribunal considers this is not an unusual state of affairs.  Individual parents and carers that have to work full-time whilst also caring for a child are not an unusual occurrence in contemporary Australian society.  The applicant and sponsor stated to the Tribunal that they do not currently utilise childcare and their child Miss Khalsa instead remains with the applicant.  The applicant and sponsor stated that they receive the Commonwealth Government’s Family Tax Benefit.  They do not however receive the generous Childcare rebate scheme the Commonwealth Government also provides that could potentially cover a significant amount of any childcare costs the sponsor may need to incur should she be required to utilise care for Miss Khalsa while working in her business.  The Tribunal does not consider the situation pertaining to the ANZ mortgage is a compelling reason for the waiver of the Schedule 3 criteria. 

12. The Tribunal furthermore notes that the sponsor entered into the mortgage and the purchase of the property in the full knowledge that the applicant had no lawful right to remain in Australia permanently.  The sponsor and applicant were aware that there was a genuine possibility that the applicant might be required to depart Australia and lodge a new Partner visa application from offshore.  The sponsor (with the applicant’s support) decided to nevertheless purchase the property and take out a significant mortgage despite the applicant’s delinquent migration history and very real possibility he would ultimately be required to depart Australia and lodge a new offshore application.  Any decision to purchase property – or in the sponsor’s position take on the responsibility of paying down the cost of such property via a long-term mortgage -  whilst the applicant had no existing legal right to remain in Australia permanently - illustrates a presumption concerning the applicant’s migration outcome. The Tribunal does not consider the sponsor’s decision to take such a risk in making such a purchase and taking out a mortgage is a compelling reason for it to exercise the waiver.  In the specific circumstances of this case, a voluntary decision by the sponsor and applicant to purchase real estate and take out a 30-year mortgage – with all the significant ongoing responsibilities - when the applicant had no legal right to remain in Australia permanently does not become a compelling reason for the waiver of the Schedule 3 criteria. 

13. Notwithstanding the claim by the sponsor that she would depart Australia with the applicant if he were required to depart Australia, the Tribunal furthermore notes that the sponsor is currently operating a home-based business.  Whilst she claims to do some external work, it is predominantly home-based and is for 6 to 8 hours a day according to the applicant.  The Tribunal is not convinced on the evidence before it that the sponsor will be unable to continue operating such a business even if she needs to utilise some external assistance and care to help with looking after Miss Khalsa whilst the applicant lodges a Partner visa application from offshore. The Tribunal considers that this suggests the sponsor may in fact be able to continue generating income to service her mortgage whilst the applicant is offshore. 

14. The Tribunal also notes that the sponsor has the ability to rent out their property to assist in servicing the ANZ bank mortgage if they so decide. A more affordable property could potentially be rented by the sponsor if she so determined whilst the applicant lodges a Partner visa application from offshore and income generated by incoming rent could go towards continuing to pay down her mortgage.  The Tribunal has noted the applicant’s submission that renting the property out and renting elsewhere is not plausible as it will result in minimal cost savings.  The Tribunal disagrees.  The Tribunal, on the evidence before it, is not satisfied that the sponsor is not able to continue operating her business whilst providing support and care to her daughter with some external assistance through areas such as childcare.  The Tribunal subsequently considers the sponsor can continue to generate at least some of her income whilst generating other income through renting out her own property and residing in a more affordable rented home.  The Tribunal does not consider that the sponsor’s mortgage – and her obligations in servicing this mortgage - is a compelling reason for it to waive the Schedule 3 criteria. 

15. The applicant submitted that the impact of COVID-19 and the situation in India represented a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The applicant in his written submissions has pointed out the DO NOT TRAVEL advisory from the Commonwealth Government in March 2020 in relation to overseas travel.  He has also pointed out that up until 18 October 2020 over 7.5 million cases of COVID-19 had been reported in India and there were over 114,000 deaths.  The applicant pointed out that there had been over 55,000 cases reported in the previous 24 hours and there would be a significant death toll due to India’s size and dense population. 

16. The applicant also asserted that there would be mental health issues faced by the sponsor and applicant if they had to stay home due to another COVID-19 wave and they may feel isolated, lonely and under financial stress. 

17. The Tribunal notes that the Government of India has extended the nation-wide lockdown until 30 November 2020 and a general ban on international flights currently remains in place unless exemptions are granted.  The Tribunal recognises the pandemic but does not consider, in the circumstances of this case, that it represents a compelling reason to waive the Schedule 3 criteria.  The Tribunal notes that the applicant can take a range of precautions to limit any exposure to COVID-19 such as avoiding crowded public spaces and mass gatherings and wearing a face mask and maintaining 1.5 metres distance from others whilst in all public spaces.  The Tribunal notes that COVID-19 is a global pandemic and no nation is immune from the virus.  The Tribunal acknowledges that as at 16 November 2020 there are 6,539 per million of population COVID-19 cases in India compared to 1,110 per million of population in Australia (  The Tribunal has noted the various data on new cases and deaths in India the applicant has supplied and acknowledges the current data suggests a higher risk of contracting COVID-19 in India.  Nevertheless, the Tribunal does not consider this is a compelling reason for it to waive the Schedule 3 criteria.  The Tribunal acknowledges that the COVID-19 situation remains fluid and the various lockdowns in place can change frequently and quickly.  The applicant can take a range of precautions to mitigate and limit any exposure to COVID-19 such as avoiding crowded public spaces and mass gatherings and wearing a face mask and maintaining 1.5 metres distance from others whilst in all public spaces.  There is no evidence or claim before the Tribunal that the applicant is suffering from any co-morbidities that represent any particular vulnerability to COVID-19.  The Tribunal recognises COVID-19 remains a health risk.  The Tribunal does not, however, consider that it represents a compelling reason in the circumstances of the applicant to waive the Schedule 3 criteria. 

18. In relation to the mental health issues faced by the sponsor and the applicant from any further wave of COVID-19, the Tribunal notes that the applicant and sponsor reside in Melbourne and were part of a 112-day lockdown that ended only weeks ago.  The lockdown was one of the longest in the world:       The Tribunal accepts the lockdown was very challenging to the mental health of residents of Melbourne generally.  The Tribunal however does not consider the threat of a further COVID-19 lockdown – and any mental health issues the applicant and sponsor may subsequently face – is a compelling reason for the exercise of the waiver.  The COVID-19 pandemic can change rapidly in various and ever-changing hotspots across the world: future lockdowns could potentially occur in either India or Australia.  The Tribunal is not satisfied that there is any greater chance of a residential lockdown in India as opposed to Australia.  It will not waive the Schedule 3 criteria on the basis of speculation.  The Tribunal furthermore notes that there is no evidence before the Tribunal – or claim made – of any existing mental health treatment or conditions by the applicant or sponsor.  The Tribunal has considered the applicant’s claims pertaining to potential mental health issues faced by the sponsor and applicant if they had to remain home due to a further COVID-19 outbreak and does not consider it represents a compelling reason for it to waive the Schedule 3 criteria. 

19. The Tribunal notes the long-term relationship claimed by the applicant and sponsor.  The applicant claims to have known the sponsor since 2007, committed to a long-term relationship in 2010, become engaged in February that year and married in November 2011.  The Tribunal has considered whether the long-standing partner relationship the applicant claims with the sponsor is a compelling reason for the Tribunal to waive the Schedule 3 criteria.

20. The Tribunal has considered the applicant and sponsor’s relationship in its own right and its duration as a reason for the Tribunal to waive the Schedule 3 criteria.  The parties claim to have known each other for well over a decade and this month celebrated their ninth wedding anniversary.  The long term, genuine and continuing nature of the spousal relationship between the applicant and sponsor was articulated in support of the application and in favour of an exercise of the waiver by the applicant.  The Tribunal has reviewed a wide range of materials the applicant provided concerning his relationship with the sponsor.  The evidence includes a Schedule 3 submission to the delegate dated 3 September 2018; a contract for the sale of a property in Caroline Springs in the name of the sponsor and applicant; photographs of the applicant, sponsor and child Miss Khalsa and other family and friends; medical documentation pertaining to the sponsor’s pregnancy with Miss Khalsa; correspondence from the Sikh Welfare and Cultural Association dated 20 August 2018 attesting to the contribution of the applicant and sponsor to the Sikh community and their attendance at worship every week since July 2014; joint Commonwealth Bank account statements in the name of the applicant and sponsor; a Commonwealth Bank personal loan account in the name of the sponsor; power bills in the name of the sponsor; correspondence addressed to the sponsor from the ANZ Bank dated 2 June 2020 pertaining to her 30 year mortgage; a Land Title confirming land in the name of the sponsor in Hillside, Victoria; ANZ Loan Statements in the name of the sponsor; a Heavy Vehicle licence in the name of the applicant; a Commonwealth Bank Youthsaver account in the name of Miss Khalsa; and health records pertaining to the applicant and sponsor’s daughter.    

1. The Tribunal accepts on the evidence that the applicant and sponsor have been known to each other for some years and there has been a married relationship between the parties since 2011. The Tribunal notes that the parties, in their statement to the delegate (that they supplied to the Tribunal), conceded that they separated in 2015 due to the applicant’s problems at the time with alcohol but reunited in November 2016 according to the decision record the applicant also supplied. The parties claim to have been together since that period.   The Tribunal notes that a criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor.  The definition of a spousal relationship relevantly requires that the relationship be “genuine and continuing”. The Tribunal has considered the evidence submitted by the applicant and sponsor and the circumstances of the parties’ claimed relationship.  The Tribunal is of the opinion that there is nothing in the individual circumstances of their particular case that should compel the Tribunal to not apply the Schedule 3 criteria on this basis.  The Tribunal is not prepared to waive the Schedule 3 criteria on the basis of the applicant’s claimed long-term relationship with the sponsor.  There is nothing in the nature of the applicant and sponsor’s claimed relationship itself that amounts to a compelling reason to exercise the waiver of the Schedule 3 criteria. 

2. The Tribunal furthermore notes that the applicant and sponsor’s relationship developed in Australia whilst he was here unlawfully.  The Tribunal notes that the applicant’s Student visa ceased in September 2010 and further applications were refused by the delegate and affirmed by the Tribunal.  Multiple unsuccessful Ministerial Interventions were then made in 2011 and 2012 before the applicant was granted a Bridging Visa E on the basis of his departure from Australia in March 2012.  The applicant instead did not depart Australia but waited for a further 6 years before finally lodging his Partner visa application in July 2018 – at a time when the sponsor had been granted Australian permanent residency  - and was now pregnant with their first child. 

3. The Tribunal notes the applicant at the hearing stated he was unable to depart Australia as required due to ‘cultural reasons’.  The applicant did not elaborate on what these reasons were other than he and the sponsor needed to remain together, hence he decided to remain in Australia as an unlawful non-citizen for over 6 years.  The requirements of the Act and the Regulations are not determined by an applicant’s cultural background.  Australia’s migration laws are not applied according to an applicant’s culture.  The Tribunal considers the desire for partners to remain together is not something specific to any particular culture.  The Tribunal does not consider the applicant’s claim of ‘cultural reasons’ represents a compelling reason for the Tribunal to waive the Schedule 3 criteria. 

4. At the hearing, the Tribunal discussed the timeframe of the applicant and sponsor’s relationship with both parties.  The sponsor made it clear she was well aware of the applicant’s unlawful status.  The parties nevertheless developed their relationship over many years in Australia despite both parties being fully aware that the applicant was an unlawful non-citizen with no legal right to remain permanently in the Commonwealth.  The Tribunal has considered the length and duration of the parties’ claimed relationship, including the circumstances in which the claimed relationship has developed and the relationship break-up the parties have stated occurred in for a significant period of time in 2015 and 2016.  The Tribunal does not consider that the length and duration of the parties’ relationship in the circumstances of this case is a compelling reason for the waiver of the Schedule 3 criteria in the circumstances of this case. 

5. The Tribunal discussed the circumstances of the applicant’s lengthy non-compliance with him at the hearing.  The applicant claimed he had issues with his Student visa and his studies where he received the wrong advice from his migration agent.  He stated that his father told him to remain in Australia despite his desire to return home. The Tribunal asked the applicant about his Bridging Visa E and why he failed to return to India despite it being granted on the grounds of his departure from Australia in 2012.  He stated that he didn’t understand immigration matters and was totally dependent upon his agent.  He stated that he finally knew about his migration status in 2012 and knew he was required to return offshore.  The applicant said he instead remained in Australia as he didn’t want to leave his wife who was at that time on a Student visa.  He stated that he and the sponsor were supporting each other in Australia and his father was telling him to remain in Australia.  The applicant stated that the sponsor knew his immigration status by the time she arrived in Australia in 2012.  The applicant said cultural factors meant that he and the sponsor – at that time in Australia on a temporary Student visa – could not leave and be without each other.  He stated that they investigated him returning to India and returning as a dependant on the sponsor’s then Student visa but there was no guarantee he would be granted the visa.  The applicant apologised for the events of 2012 and stated he regretted the situation. 

6. The Tribunal notes its role in this review is to consider whether compelling reasons exist for a waiver of the Schedule 3 criteria.  The Tribunal raises the applicant’s delinquent migration record as it directly pertains to a range of the reasons the applicant has submitted for a waiver of the Schedule 3 criteria.  These include the length and genuineness of the applicant and sponsor’s relationship in its own right as a compelling reason to waive the Schedule 3 criteria as well as their child, Miss Khalsa.  The Tribunal notes that the applicant and sponsor were able to build their relationship in Australia over many years and conceive a child whilst the applicant remained in Australia as an unlawful non-citizen.  Both parties were aware of his migration status.  The parties were aware the applicant was in breach of Australia’s migration laws.  The applicant never attempted over 6 years to voluntarily regularise his migration status and instead waited until both the sponsor had Australian permanent residency and was pregnant to finally contact the Department, apply for a Partner visa and subsequently claim that compelling reasons existed that justified a waiver of the Schedule 3 criteria.  Despite the fact the Tribunal considers the applicant has manipulated his circumstances to give rise to what he submits are compelling reasons for the exercise of the waiver, the Tribunal has nevertheless considered each matter the applicant has submitted as compelling reasons on their own merits both individually and cumulatively. 

7. The Tribunal has considered the totality of the applicant’s circumstances.  Having considered the circumstances singularly and cumulatively, 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).

8. There is no evidence or suggestion the alternative criteria in cl.820.211 (2A), (2B), (5)-(9) apply.

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

   DECISION

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

    Justin Owen
    Senior 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.