Singh (Migration) - [2023] AATA 2968

Singh (Migration) [2023] AATA 2968 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lovejot Singh
CASE NUMBER:  1920229
HOME AFFAIRS REFERENCE(S):          BCC2017/2825714
MEMBER:Tegen Downes
DATE:6 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 06 September 2023 at 12:30pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – compelling reasons to waive Schedule 3 criteria – no substantive visa at date of application – emotional and financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 820.221; Schedule 3
CASES
Al Souhmarani v MIBP [2016] FCCA 2866
Babicci v MIMIA (2005) 141 FCR 285
Hasran v MIAC [2010] FCAFC 40
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 August 2017 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 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) and (d) of Schedule 2 of the Regulations. The delegate considered that the information and evidence provided was not sufficient to demonstrate that the applicant was the spouse or de facto partner of the sponsor. The delegate also considered that the applicant did not meet the criteria in Schedule 3 of the Regulations and there were no compelling reasons for not applying those criteria.
On 22 August 2023, I issued an invitation to the applicant pursuant to s 359(2) of the Act to provide further information to support his claims that he and his partner are in a spouse or de facto relationship. The invitation stated that the information should be provided by

5 September 2023 but that if the information could not be provided by this date, the applicant may request an extension of time. The invitation also stated that in the event that no response was received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain the information, and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not respond to the invitation within the prescribed period and no extension has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2023] AATA 2968
Case: [2023] AATA 2968
Decision Date: 6 September 2023

CaseChat Overview and Summary

This case concerned an application for review of a decision by the Migration Review Tribunal affirming the refusal to grant the applicant, a citizen of India, a Partner (Temporary) (Class UK) visa (Subclass 820). The applicant had arrived in Australia on a student visa, which was subsequently cancelled. After the cancellation, and while holding a bridging visa, the applicant lodged the Partner visa application, asserting a de facto relationship with an Australian citizen. The applicant did not hold a substantive visa at the time of lodging the Partner visa application.

The primary legal issue before the court was whether the applicant satisfied the criteria under Schedule 3 of the Migration Regulations 1994, specifically clause 820.211(2)(d), which requires the applicant to hold a substantive visa at the time of application or demonstrate compelling reasons for the Minister to waive these criteria. This involved determining if the applicant met the timeframes stipulated in Schedule 3 for lodging the application and whether any compelling reasons existed to excuse compliance with these criteria.

The court found that the applicant did not meet the criteria in clause 820.211(2)(d) because he had not lodged his visa application within the 28-day period prescribed by Schedule 3, criterion 3001. The applicant's student visa was cancelled on 29 November 2016, and his Partner visa application was lodged on 8 August 2017, over nine months later. Consequently, the court determined it was unnecessary to consider whether there were compelling reasons for not applying the Schedule 3 criteria, as the applicant had already failed to satisfy the threshold requirement of lodging within the specified timeframe.

As the applicant did not satisfy the criteria under clause 820.211(2)(d), the Tribunal affirmed the decision not to grant the visa. The court therefore affirmed the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, 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) of Schedule 2 and does not satisfy the criteria for the grant of the visa.Decision The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Tegen DownesMemberATTACHMENT - Extract from Migration Regulations 1994Schedule 33001(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.3003If:(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.3004If 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.

Ratio Decidendi

Legal Principle Established

Both issues must be determined in the applicant’s favour for the application to be successful. For the reasons that follow, I have decided that the applicant does not satisfy the criteria in cl 820.211(2)(d). Accordingly, it is unnecessary for me to consider the remaining issue.CONSIDERATION Background The applicant is a 25-year-old man from India. He first arrived in Australia on 12 December 2013 as the holder of a student visa, which was cancelled on 29 November 2016. The applicant sought review of the decision to cancel his student visa and was granted a bridging visa, pending the determination of his review application. On 4 July 2017, the Tribunal (differently constituted) affirmed the decision to cancel the student visa. On 8 August 2017, the applicant’s bridging visa ceased. On 8 August 2017, the applicant lodged the application that is the subject of this review. The application was lodged on the grounds that the applicant was in a de facto relationship with a 24-year-old Australian citizen. For the purposes of this decision, I accept at face value that the applicant and the sponsor were in a de facto relationship. The applicant was granted a further bridging visa pending the determination of that application. The bridging visa remains current, pending the outcome of this review.Does the applicant meet the schedule 3 criteria? The applicant did not have a substantive visa at the time he applied for the visa that is the subject of this review. He also did not enter Australia as the holder of a Subclass 995 visa or special purpose visa. Accordingly, the issue to be determined is whether the applicant satisfies 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) of Schedule 2 of the Regulations. 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. In this case, the relevant day was the last day when the applicant held a substantive or criminal visa, being 29 November 2016 when the applicant’s student visa was cancelled. The visa application was made more than nine months later, on 8 August 2017. Accordingly, the applicant does not meet the relevant Schedule 3 criteria. Are there compelling reasons for not applying the Schedule 3 criteria? The expression ‘compelling reasons’ in cl 820.211(2)(d) is not defined in the Act or Regulations. However, according to jurisprudence, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision- maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.