Singh (Migration)

[2020] AATA 917

Singh (Migration) [2020] AATA 917 (24 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arshdeep Singh

CASE NUMBER:  1900386

HOME AFFAIRS REFERENCE(S):          BCC2017/3251457

MEMBER:Steven Griffiths

DATE:24 March 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 24 March 2020 at 1:25pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – spouse – validly married – financial, household and social aspects of relationship – nature of commitment – applicant’s support for Australian citizen sponsor’s physical and mental health – application not lodged within 28 days of last day applicant held substantive visa – compelling reasons for waiving criterion – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 349

Migration Regulations 1994 (Cth), r 15A(3), Schedule 2, cl 820.211(2)(d)(ii), 820.221(1), Schedule 3, criteria 3001, 3003, 3004

CASES

Babicci v MIMIA (2005) 141 FCR 285

He v MIBP [2017] FCAFC 206

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, Mr. Arshdeep Singh, applied for the visa on 7 September 2017 on the basis of his relationship with his sponsor, Ms. Teddy Gloria Ekisa. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The applicant appeared before the Tribunal by telephone on 23 March 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor by telephone. The Tribunal hearing was conducted with the assistance of an interpreter, by telephone, in the Punjabi and English languages.

5. The applicant was represented by his registered migration agent, who attended the Tribunal hearing by telephone.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant and the oral evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND OF THE EVIDENCE

9. Mr. Singh was born in Narangwal, Punjab, India in 1981. His parents, born 1948 & 1947, and sister and two brothers, born 1974, 1979 & 1981, live in India other than one brother who lives in Australia.  He married in January 2014 and divorced in March 2017, with no children. He arrived in Australia as a partner to a Student visa holder in November 2014, with the substantive visa ceasing in July 2016.

10. Ms. Ekisa was born in Uganda in 1982. Her father is deceased, with her mother, born 1964, living in Australia. She has 3 sons, born 1997, 2001 & 2008. Her mother and oldest son arrived in Australia in 2004. She arrived in Australia on 17 January 2011 on a humanitarian visa with her 2 youngest sons, and she and the children became Australian citizens by grant on 18 November 2016.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Parties motel accommodations in NSW for January 2019

    Migration Agent submission, 18/3/20, including request for waiver of Schedule 3 criteria

    Joint names electricity accounts, January 2019 to January 2020

    Form 888 Statement, John Krause, friend of sponsor, 6/3/20

    Sponsor psychologist report, 10/3/20

    Parties ANZ account, March 2020

    Parties invitation to friend wedding

    Documents on proof of address

    Applicant telephone records February & March 2020

    Parties flight in Australia, May 2019

    Form 888 Statement, Mercy Kaurirai, friend of sponsor, 11/3/20

    Form 888 Statement, Anthony Loffler, employer of applicant, 10/3/20

    Parties ANZ account, transactions 13/1/20 to 4/3/20

    Parties, ANZ Access account, transactions 13/9/19 to 13/1/20

    Parties Telstra accounts November 2018 to November 2019

    Parties Accountant invoice, September 2019

    Sponsor medical discharge summary, 6/12/19

    Form 888 Statement, Onyinyechi Onuigbo, friend of sponsor, 6/3/20

    Sponsor telephone records, February and March 2020

    Parties home rental agreement, November 2019

    Parties home rent transactions, 3/2/17 to 26/2/20

    67 Photos of parties with family and friends

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the documented evidence of the sponsor becoming an Australian citizen on 18 November 2016.    

    Whether the parties are in a spouse or de facto relationship

13. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

14. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

15. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Certificate of Marriage dated 15 May 2017.

16. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

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

    (ii)any joint liabilities; and

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

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

    (v)the basis of any sharing of day‑to‑day household expense

17. The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties do not have joint ownership of real estate or other major assets.

18. The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties do have any joint liabilities.  

19. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

20. The Tribunal accepts the documented and oral evidence of the applicant working seasonally on a farm property.     

21. The Tribunal accepts the documented and oral evidence of the sponsor working 2 jobs being carer for an aged care facility and a health service.      

22. The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of holding a joint names bank account from early 2017 in to which the wage income of the applicant, when working, is deposited and to which the sponsor makes transfers, with the sponsor having an individual name bank account in to which her wage income is received and loan commitment withdrawn, and determines, at the time of application and this decision, these accounts and their use to represent the pooling of financial resources, especially in relation to major financial expenses and the sharing of day-to-day household expenses.

23. The Tribunal notes the oral evidence of the applicant that he has an individual name bank account, from prior to his relationship with the sponsor, for which no transactions have been conducted for 3 years.

24. The Tribunal accepts the documented and oral evidence of the parties on a joint name savings account, to which transfers are made from the individual name account of the sponsor and the joint name account of the parties, which is being used to save for the purchase of a house, and which has a current balance in excess of $ 91,000.

25. The Tribunal accepts the documented and oral evidence of the parties on the joint names account being used to pay for household expenses and holidays of the parties and the youngest son of the sponsor, and determines this joint account represents, at the time of the visa application and this decision, the pooling of financial resources, especially in relation to major financial expenses and the sharing of day-to-day household expenses.

    Nature of the household aspects that must be considered include:-

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

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework

26. The Tribunal accepts the physical, photographic, documented and oral evidence from the parties of the sponsor having 3 sons, born 1997, 2001 and 2008, noting the eldest 2 children do not living at home while the youngest child lives with the parties.

27. The Tribunal notes the oral evidence of the parties that the applicant does not have children.

28. The Tribunal accepts the photographic, documented and oral evidence of the parties of the oldest son of the sponsor having been, at the time of the visa application, at university in Adelaide and had attended the wedding of the parties, while at the time of this decision he is in jail until 2021 for sexual assault, noting the applicant travels to Adelaide monthly with the sponsor and cares for the youngest son elsewhere while the sponsor visits her son.

29. The Tribunal accepts the oral evidence of the parties of the second son of the sponsor not living with the sponsor at the time of the visa application, and not attending the wedding of the parties, due to a dispute with the sponsor on the way he was living his life, and that in recent times drug taking issues have resulted in him being placed in hospital in Adelaide.

30. The Tribunal accepts the evidence of the parties on the daily care provided by the applicant to the youngest child of the sponsor, who lives with the parties, and determines, at the time of the visa application and this decision, the parties to have joint responsibility for the care and support of the 3 children. 

31. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together since February 2017, in a joint name rented home in Loxton, South Australia, in which the applicant, sponsor and youngest child of the sponsor live.       

32. The Tribunal accepts the documented, photographic and oral evidence, confirmed by the parties independently, on the roles each undertakes in the household and determines, at the time of application and this decision, the parties share the responsibility for housework.

    Social aspects of the relationship that must be considered include:-

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

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

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

33. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married in Australian on 15 May 2017, with family and friends in attendance, and represent themselves to other people at all times as being married to each other. 

34. The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

35. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (i)the duration of the relationship; and

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

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

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

36. The Tribunal accepts the documented and oral evidence of the parties initially meeting on 16 June 2016, living together from February 2017, becoming engaged on 22 April 2017 and marrying on 15 May 2017. 

37. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together since February 2017.  

38. The Tribunal accepts the documented evidence of treating medical professionals and oral evidence of the parties of their relationship and determines, at the time of application and this decision, and in particular noting the mental health issues the sponsor has dealt with as a result of the attacks upon her and separation from the resultant children while living in Uganda, that a high level of companionship and emotional support is provided by the applicant to the sponsor.

39. The Tribunal accepts the oral evidence of the parties of their relationship and determines, at the time of the visa application and this decision, the sponsor to provide emotional support to the applicant.

40. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.

41. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

42. The Tribunal accepts that the parties have been in a relationship since 28 June 2017, engaged on 22 April 2017, married on 15 May 2017 and determines, at the time of the application and this decision, the parties live together.  

    Any other circumstances of the relationship

43. The Tribunal notes the oral evidence of the parties, confirmed independently, of the intention to have two children together after they have purchased a home.

44. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision. The Tribunal is further satisfied that the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

45. The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as he was not the holder of a substantive visa at the time of application, cl.820.211(2)(d) applies. As subsequently discussed, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1). 

46. The Tribunal notes the request of the applicant, contained in the submission of the registered Migration Agent dated 18 March 2020, that the Tribunal “not only consider the genuineness of the relationship, but also make a direction under Section 349 of the Migration Act 1958 on whether there are compelling reasons such that the Arshdeep (applicant) and Gloria (sponsor) satisfy Regulation 820.211(2)(d)(ii).”

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

47. 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).

48. 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

49. 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.

50. The Tribunal notes the substantive visa of the applicant ceased on 26 July 2016 and the visa application lodged on 7 September 2017.

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

    Compelling reasons

52. 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.

53. 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.

54. The Tribunal accepts the documented evidence of treating medical professionals and oral evidence of the parties on the long term impact on the mental health of the sponsor that attacks she endured, and the forced separation by forces from her children, while living in Uganda and the importance the applicant plays in her life of supporting her and her children.  

1. The Tribunal accepts the documented evidence of treating medical professionals of the periods in which the sponsor has required treatment for her mental health issues, with the most recent hospitalization being November / December 2019, and the concerns expressed for the continued physical and mental health of the sponsor if the applicant was to be required to leave Australia.

2. The Tribunal accepts the oral evidence of the sponsor on the importance of the applicant to her physical and mental health, expressing that if the applicant was required to leave Australia she is fearful that she would suffer another mental health episode, require hospitalization, not be able to care for her youngest child, not be able to provide comfort and support to her oldest 2 children who are dealing with incarceration and treatment for their offence and issues respectively, not be able to work and she and her children would become a burden on Australia.

3. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii) at the time of the visa application and this decision.

4. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

5. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.211(2) of Schedule 2 to the Regulations

   ·cl.820.221(1) of Schedule 2 to the Regulations

   Steven Griffiths
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.15A     Spouse

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

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

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

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

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

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

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

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

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

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

   (ii)      any joint liabilities; and

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

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

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

   (b)the nature of the household, including:

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

   (ii)      the living arrangements of the persons; and

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

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

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

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

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

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

   (i)       the duration of the relationship; and

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

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

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

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

   Schedule 3

   3001

   (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

   (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

   (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

   (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

   (c)if the applicant:

   (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)      entered Australia unlawfully on or after 1 September 1994;

   whichever is the later of:

   (iii)      the last day when the applicant held a substantive or criminal justice visa; or

   (iv)    the day when the applicant last entered Australia unlawfully; or

   (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

   (i)       the day when that last substantive visa ceased to be in effect; and

   (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

   3003

   If:

   (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

   (b)on 31 August 1994, the applicant was either:

   (i)       an illegal entrant; or

   (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

   the Minister is satisfied that:

   (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

   (d)there are compelling reasons for granting the visa; and

   (e)the applicant has complied substantially with the conditions that apply or applied to:

   (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

   (ii)      any subsequent bridging visa; and

   (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

   (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

   3004

   If the applicant:

   (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

   the Minister is satisfied that:

   (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

   (d)there are compelling reasons for granting the visa; and

   (e)the applicant has complied substantially with:

   (i)       the conditions that apply or applied to:

   (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

   (B)any subsequent bridging visa; or

   (ii)      the conditions that apply or applied to:

   (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

   (B)any subsequent bridging visa; and

   (f)either:

   (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

   (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

   (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

   (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.