Singh (Migration)

[2020] AATA 5088

Singh (Migration) [2020] AATA 5088 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amrinder Singh

CASE NUMBER:  1816915

HOME AFFAIRS REFERENCE(S):          BCC2016/4358918

MEMBER:Linda Holub

DATE:20 August 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 20 August 2020 at 2:57pm

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, ss 65,359
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
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 (is a national of India, born in 1993, he applied for his Partner (Temporary) (Class UK) visa on 24 December 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 primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d) because the delegate was not satisfied that the applicant’s circumstances justified a waiver of the Schedule 3 criteria.  The delegate did not consider the circumstances whether considered singularly or cumulatively to be compelling.

1. The applicant appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, although the applicant chose to converse in English at times throughout the hearing. He reverted to the interpreter on occasions where he felt the need to do so.

2. The Tribunal contacted the applicant to enquire whether he would like to participate in a video hearing through the platform Microsoft Teams. The applicant told a Tribunal Officer that he does not have a device to do video calls and preferred a telephone hearing. The applicant also emailed the Tribunal indicating his preference for a telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone due to in person hearings being suspended due to the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone.

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

BACKGROUND

1. The visa applicant provided the Tribunal with a copy of the delegate’s Decision Record. It provides an outline of his migration history. On 23 January 2014 the visa applicant was granted a Student (subclass 573) visa offshore. He first arrived in Australia on 31 January 2014, as a holder of this visa. The student visa was cancelled on 20 December 2016 for non-compliance of the visa conditions. He subsequently lodged the Partner visa application on 24 December 2016.

The applicant has submitted that he and his sponsor met on 31 December 2014 at a Christmas party on NYE party in Albury. He submitted written evidence that they married on 18 December 2016.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether there were compelling reasons for not applying the Schedule 3 requirement that the applicant be the holder of a substantive visa at the time of application.

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

1. 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.

Criterion 3001

11) 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.

12) According to the delegate’s decision record and Department records, on 23 January 2014 the visa applicant was granted a Student (subclass 573) visa offshore. He first arrived in Australia on 31 January 2014, as a holder of this visa. This student visa was cancelled on 20 December 2016 for non-compliance of the visa conditions. On 24 December 2016, the applicant lodged an application a Partner (subclass UK 820/BS 801). He is currently living in Australia as a holder of a Bridging visa.

13) As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

Criterion 3004

14) Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

15) The delegate having taken account of the applicant’s statement of 6 February 2017 provided to the Department found that the applicant had not met Criterion 3004. The delegate considered that the applicant more than likely lodged the partner visa application to seek a further visa to remain in Australia.

16) The Tribunal has considered whether Criterion 3004 applies and, if so, whether relevant requirements are met. The applicant’s last substantive visa (a student visa) was cancelled on 20 December 2016 for non-compliance of the visa conditions. He lodged his application for Partner (subclass UK 820/BS 801) visa on 24 December 2016. The applicant made no submissions regarding as to any factors that were beyond his control. Furthermore, the Tribunal has put significant weight on the fact that the applicants the last substantive visa was cancelled for non-compliance of the conditions of his Student visa.

17) The Tribunal is satisfied that for the above reasons, the applicant does not satisfy criterion 3004.

Compelling reasons

18) 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.

19) 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.

Information provided to the Department in support of the application

20) The parties provided the following information in support of their application, a joint tenancy agreement dated August 2016, three utility bills (one in joint names and two in the sponsor’s name), extract of a cheque account statement, two statutory declarations from friends, decorative marriage certificate and  a joint statements about their relationship.

21) On 7 March 2017, the Department requested further information in regard to Schedule 3 and compelling reasons. The Department also asked the applicant to provide further relationship evidence and outlined what kind of evidence that needed to be submitted. In response to this request the applicant submitted a statement on 30 March 2017.

22) In that statement the couple submitted that the sponsor has children from previous marriage and since they came together the applicant has been helping her look after the household because he does not have permission to work. It states the family is dependent upon them and the sponsor and her children needs emotional support to deal with our current situation following the cancellation of the visa applicant’s Student visa. They submitted that the family would struggle if he visa applicant was to depart Australia and children would struggle to cope in his absence. It would be unfair to the kids if visa applicant goes offshore to lodge an application because of the length of time it would take. In addition, it states that the sponsor would need emotional and moral support and needs the visa applicant. No evidence was submitted in support of the claims.

Information provided to the Tribunal

23) The applicant did not make any submissions to the Tribunal.

Evidence provided at hearing

24) The applicant’s sponsor did not attend the hearing, despite the applicant advising the Tribunal that she would participate in the hearing. When asked why she is not attending, the applicant first stated that the sponsor’s parents are not well. When asked if it was both her father and mother, the applicant responded that it was only the sponsor’s mother. The Tribunal asked him to provide additional information regarding the situation, he responded that his sponsor just told him that she cannot attend even though she said earlier she would.

25) The Tribunal asked the applicant where he and the sponsor met. He responded that they met at a friend’s birthday party in Albury in December 2014. The Tribunal put information to the applicant in the terms required by s.359AA of the Migration Act. The information put to the applicant is that in his application, he had submitted that the couple met at a Christmas party on NYE. The Tribunal explained that the information put in oral evidence was inconsistent with what had previously been provided. The applicant stated that it was a combined birthday party and Christmas party.

26) The applicant stated that he and the sponsor live in Albury together. He stated that the sponsor’s children previously lived with them but no longer do so. He explained that from about February 2019 they have lived with their grandparents. The applicant stated that they live with their grandparents because his relationship with the sponsor had a lot of ups and downs. He stated that because of the refusal decision he became dependent on his wife which caused problems in the relationship.

27) The Tribunal asked the applicant what role he plays in the lives of the sponsor’s children. He stated that he meets up with them sometimes but is not involved in caring for them.

28) The applicant stated that for a period he did not have work rights, but he obtained them last year and started working as an interstate truck driver. He stated that he is a casual but now gets work every day. The applicant stated that the sponsor does not work. She was previously working casually in a packing factory.

29) The Tribunal invited the applicant to outline any compelling reasons he wished to put forward seeking a waiver of the Schedule 3 criteria. The applicant stated that he was not aware that he could not lodge this application onshore. He stated that his migration agent told him he would not have done so. He stated that his relationship with the sponsor was good at that time. The visa applicant stated that he paid the agent money and lodged the application but had received completely the wrong guidance. If he had proper knowledge he would not have.

30) The Tribunal put to the applicant that there is no evidence on his visa application that he engaged the services of a migration agent. The applicant stated that the agent used his log in. The Tribunal put it to the applicant that the agent, if engaged, could only have done so, the applicant had given him his log-in. The applicant reiterated that he used an agent, that the agent completed the documentation for him and submitted it to the Department using his log-in and that he had been advised badly.

31) The applicant stated that he could provide evidence of his payment to the agent. The Tribunal explained that it was prepared to accept that he paid someone to assist him and agreed to providing him until Monday 17 August 2020 to submit such evidence. The Tribunal also explained to the applicant that it is the Tribunal’s view that a visa applicant has responsibility for documentation lodged with the Department and for the advice an applicant obtains as to the most appropriate pathway for them. As at the date of this decision, no further evidence was received from the applicant.

32) The Tribunal asked the applicant if there were any other compelling reasons he wished to submit for consideration. He responded there were not.

33) The Tribunal put to the applicant that he made a number of claims in his statement to the Department including the emotional hardship it would cause the sponsor if he were to depart Australia, but he had made no reference to that during the course of the hearing. The applicant responded that at that time she wanted him to stay, but when his application was refused the sponsor was worried that he would be dependent on her. He stated that they still live together but that things have been difficult. He stated that he gets depressed.

34) The applicant stated that he had wanted to take the sponsor to India but was unable to do so because of the conditions of his Bridging visa.

35) The applicant stated that he takes care of the sponsor. When asked to describe in what way, the applicant stated that because they live together, they take of each other. He stated that when he is not working, he cooks food and helps her with household. When asked to explain what housework he does, the applicant stated he does the gardening and helps with the shopping. He stated that provide each other with general companionship and support. He stated these days he is mostly interstate.

36) The applicant acknowledged that there is no impediment in the sponsor undertaking those tasks herself and that she has family in the area.

37) The Tribunal referred to the availability of technology that would enable he and the sponsor to stay in touch and continue to provide each other with emotional support. The Tribunal acknowledged that it is not the same as being together but goes some way to bridge the divide. The applicant stated there is a world of difference being between actually being together and using technology.

38) The Tribunal also noted that in his statement he referred to the fact that if he were to return to India, he would be unable to look after the sponsor’s children. The Tribunal put it to him that based on his earlier oral evidence he no longer cares for them so that’s no longer an issue. He confirmed this is the case.

39) The Tribunal also referred to the applicant’s submission that he and the sponsor have been in a long -standing relationship. The Tribunal noted that on its own a long-standing relationship is not sufficient reason to waiver the Schedule 3 criteria and asked him if he wished to identify anything particular about his relationship that ought to be considered. The applicant stated that everything was good before the Department’s refusal of his application. He said that after the refusal they started having problems. He stated that some of the sponsor’s friends started telling her he was only with her to obtain a visa. He stated that he became depressed and was drinking at the time and not taking care of the kids. He stated that was why the children were now with their grandparents.

Findings

40) The Tribunal considered whether the fact that the applicant was provided with wrong advice by a person to whom he paid money is a compelling reason to waive the Schedule 3 criteria. The applicant did not provide a copy of the transfer of funds. Nevertheless, the Tribunal is prepared to accept he paid money to someone to assist him. However, the applicant did not explain how his use of the advice he claims to have received alters the fact that he lodged his Partner visa and that the Department found he did not satisfy Criterion 3004. As the Tribunal explained to the applicant it is the view of the Tribunal that it is the responsibility of visa applicants to obtain the advice they require to apply for the most appropriate visa for their circumstances. The Tribunal was not satisfied that this issue provides a compelling reason to waive Schedule 3 criteria.

41) The Tribunal has had regard to the applicant’s claim that he previously cared for the sponsor’s children. In his oral evidence, the applicant submitted that he no longer does so. The Tribunal finds the fact that the applicant may have previously cared for the children does not provide a compelling reason to waive the Schedule 3 criteria.

42) The Tribunal considered whether the applicant’s claim that his sponsor will suffer emotional hardship provides a compelling reason to waive the Schedule 3 criteria. The Tribunal is concerned that the sponsor did not attend the hearing. It could reasonably be assumed that if she held concerns regarding the impact of the applicant’s departure from Australia, she would have taken the opportunity of providing evidence at hearing. The Tribunal did not find the applicant’s explanation regarding her non-participation convincing. He first stated the sponsor’s parents were not well, and then stated it was only her mother and when pressed, he responded that she told him that she cannot attend even though she said earlier she would do so.

43) The Tribunal considered the applicant’s claim that the sponsor would suffer emotional hardship if he is required to go offshore to lodge an application. The Tribunal accepts that the couple may have lived together, and they have cared for each other. The Tribunal accepts that when the applicant was not working, he cooked and helped the sponsor with the gardening and the shopping. However, the Tribunal has put weight on the applicant’s testimony that he now works and “these days he is mostly interstate”. The Tribunal has also put weight on the applicant’s evidence that there is no reason the sponsor cannot undertake these tasks herself.

44) The Tribunal is prepared to accept the applicant’s evidence that he and the sponsor provided each other with general companionship and support. The Tribunal accepts that using some form of social media or technological solution is not the same as face to face contact. Nevertheless, it is a viable way in which the couple can continue to provide each other some companionship and support if the applicant returns to India to lodge an offshore application.

45) The applicant did not provide any evidence in support of claims that the sponsor would suffer emotional hardship or any difficulty with household tasks if he departs Australia.  While the Tribunal accepts that it may be an inconvenience for the sponsor and less than satisfactory for the couple to communicate electronically, the Tribunal was not satisfied that these provide compelling reasons to waive the Schedule 3 requirements.

46) 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).

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

DECISION

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

Linda Holub
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.