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

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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. 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).

3. 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.

4. 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.

5. The applicant did not respond to the invitation within the prescribed period and no extension has been requested. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3), the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

6. I note that the applicant has not provided any information or evidence to the Tribunal since the application was filed. I also note that the Tribunal sent the applicant a letter acknowledging his application once lodged, and that letter relevantly stated that, ‘If you wish to provide material or written arguments for us to consider, you should do so as soon as possible’.

7. In these circumstances, I have decided to proceed to decision without taking further steps to obtain information from the applicant. I consider that this is reasonable in circumstances where the applicant has not engaged with the Tribunal or provided any further material, despite two letters inviting him to do so.

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

   ISSUES

9. There are two live issues in this review application: whether the relationship between the applicant and the sponsor meets the definition of a ‘spouse’ or ‘de facto relationship’, for the purposes of cl 820.211(2)(a); and whether the applicant satisfies the criteria in cl 820.211(2)(d), which relate to the applicant’s visa status on application.

10. Specifically, cl 820.211(2)(d) provides:

    (d) in the case of an applicant who is not the holder of a substantive visa — either:

    (i) the applicant:

    (A) entered Australia as the holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder who at the time of entry met the requirements of subclause (2A); and

    (B) satisfies Schedule 3 criterion 3002; or

    (ii) 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.

11. 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

12. 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.

13. 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.

14. 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?

15. 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.

16. 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.

17. 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.

18. 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?

19. 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].

20. 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.

21. Ultimately, whether the circumstances are ‘compelling’ will be a matter of fact and degree for the Tribunal to determine. In doing so, the Tribunal is required to apply ‘his [or her] own mind to the issues raised’, engage with the materials for him or herself, evaluate them, and give them genuine consideration. A cursory consideration will not suffice: MZYPZ v MIAC [2012] FCA 478 at [19].

22. Further, the purpose of the provision is a relevant consideration for the Tribunal to take into account. In the context of cl 820.211(2)(d)(ii), that purpose is to deal with cases where there are compelling reasons for not putting particular applicants to the hardship of having to leave Australia to apply for a partner visa: Al Souhmarani v MIBP [2016] FCCA 2866 at [18].

23. The department’s policy indicates that, as a general rule, the existence of a genuine spouse or de facto relationship between the applicant and the sponsoring partner, and the hardship that may be suffered if the parties are separated and the applicant is forced to apply for a partner visa outside of Australia, should not of itself amount to compelling circumstances. However, this is not absolute, and the Tribunal must assess whether the circumstances as claimed by the applicant are a compelling reason.

24. The applicant’s former representative made written submissions dated 6 November 2018 regarding the waiver. In summary, the submissions were that:

    a.The applicant has maintained substantial compliance with his student visa conditions and the cancellation was the result of a series of incidents outside of the applicant’s control.

    b.The applicant spent a small amount of time as an unlawful non-citizen due to reasons stemmed from an error made by the Department and took immediate steps to rectify the situation.

    c.The applicant developed depression as a result of the cancellation.

    d.Refusing the application would cause considerable heartache and financial implications for the applicant and the sponsor, because of the distress and mental anguish caused by a forced period of separation and because the couple had made a considerable financial commitment in pooling their resources to make the partner visa application.

    e.The applicant may have insufficient finances to lodge an offshore partner visa for a significant period of time.

25. The evidence provided in support of the submissions included:

    a.A statutory declaration from the sponsor, stating that she was afraid of falling into depression at the thought of the applicant not being around

    b.a statutory declaration from the sponsor’s parents stating that ‘We do, fear, his visa being rejected would be very devastating especially for my daughter who has come to love him deeply and he is a pillar of support for her. […] is a very sensitive [sic] and soft girl who finds it difficult to accommodate drastic changes in her life.’

26. I have considered all of the circumstances relevant to the application, including the information provided regarding any compelling reasons. I do not consider that the matters raised, collectively or individually, constitute compelling reasons for disapplying the schedule 3 criteria.

27. I do not accept that the circumstances that led to the cancellation of the applicant’s student visa were out of his control. While the applicant’s migration agent may have enrolled him in a class that he did not want to attend, it was the applicant’s choice not to pay the tuition which led to his enrolment being cancelled.

28. I do not accept that the applicant’s visa compliance history is a compelling reason because all visa holders must abide by their visa conditions.

29. I do not accept that the claimed emotional or financial hardship is sufficiently compelling. No medical evidence has been provided to support the claims of depression. In any event, it is reasonable to expect that some emotional and financial hardship will be experienced by a couple who are separated for extended periods due to the necessity ofapplying offshore. The information provided does not lead me to find that there are compelling reasons for not putting the couple to such hardship.

30. 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

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

    Tegen Downes
    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.