Singh (Migration)

[2019] AATA 3261

Singh (Migration) [2019] AATA 3261 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amratpal Singh

CASE NUMBER:  1715676

HOME AFFAIRS REFERENCE(S):          BCC2017/1045891

MEMBER:Helena Claringbold

DATE:2 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 April 2019 at 10:58am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – not holder of substantive visa – no compelling reasons – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2 cl 820.211(2)(d)(ii), Schedule 3 Criteria 3001, 3003, 3004

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. On 16 March 2017, Mr Amratpal Singh, the applicant, applied for a Partner (Temporary) (Class UK) visa.  The application was made on the basis of his partner relationship with Ms Ayesha Aleen Khalid, the sponsor.

2. On 30 June 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate refused the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 18 March 2019, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Khalid, the sponsor’s mother, father and sister. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case case file and the Tribunal’s case file and the evidence  provided at the Tribunal hearing.

   ISSUE

6. The issue in this matter is whether the applicant meets the criteria Schedule 3 to the Regulations and if not, whether there are compelling reasons not to apply the Schedule 3 criteria.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1995, in Maheshpura, Bazpur, India. His parents and two siblings live in India. ON 9 October 2013, he entered Australia as the holder of a student visa. On 10 May 2016, the student visa was cancelled.  On 27 January 2017, the Administrative Appeals Tribunal affirmed the decision.  On 23 February 2017, a Ministerial Intervention Request was determined as ‘Inappropriate to consider’.  On 16 March 2017, the partner visa was lodged.     

8. The sponsor was born in 1988 in Australia.  She is an Australian citizen.  Her parents and two siblings live in Australia. She completed a Bachelor of Arts (Psychology and Sociology) at the University of Sydney.  After that, she completed an honours course at the same university.  She went on to complete a Masters of Social Policy.  In April 2017, she was undertaking a graduate certificate in TESOL and had deferred a post graduate diploma of psychological science.

9. On 22 January 2017, the parties met. On 26 January 2017, the parties singed an intention to marry.  On 19 February 2017, the parties held their Islamic wedding. On 26 February 2017, the parties registered their marriage.

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

10. 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).

11. 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

12. 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 criterion 3001(2), as set out in the attachment to this decision. Specifically and as detailed in the delegate’s decision record the applicant was granted a substantive visa which ceased on 10 May 2016. He applied for the visa under review on 16 March 2017. Therefore, at the time of application, it was more than 28 days since the applicant held a substantive visa.

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

    Compelling reasons

14. 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.

15. 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.

    CLAIMS AND FINDINGS

16. In requesting a waiver to the Schedule 3 criteria, both prior to and at the Tribunal hearing, the applicant provided information in support of the parties’ relationship. The applicant also provided other information for consideration as to whether there are compelling reasons not to apply the Schedule 3 criteria. The claims and findings on that information are as follows.

17. The applicant stated that in 2013 that he came to Australia as a motivated young individual but suffered severe financial hardship. He was responsible for paying his rent, day-to-day expenses and university fees. He failed to obtain his qualification because of lack of support. By the time he saved enough money to continue his study his visa was cancelled. He wants to achieve and become something in life. His goals can only be achieved in Australia. The Tribunal considered that the applicant was granted a student visa to enter study and live in Australia. The grant of the student visa was conditional on the applicant abiding by certain conditions of that visa, which included that he be enrolled in and actively undertaking a registered course of study and that he be able to provide for himself financially and pay for his studies. As detailed in the delegate’s decision record the applicant’s visa was cancelled on 10 May 2016 because he had not been enrolled in a registered course of study since November 2014. The Tribunal is of the view that regardless of the fact that the applicant didn’t comply with the conditions of his student visa, he made a determined decision to remain in Australia. Although the applicant didn’t specify the goals that he could only achieve in Australia, the Tribunal assumes this statement connects to the applicant’s other statements about wanting to make something of himself. The Tribunal accepts that the applicant would prefer to remain in Australia in order to take advantage of various opportunities, however, it feels that the applicant can continue to work toward his aims, even if there is a need for him to be offshore for a time. The Tribunal is not satisfied that these are compelling reasons that should compel the Tribunal not to apply the Schedule 3 criteria.

18. The Tribunal considered the evidence relating to the Schedule 3 waiver and the long-term nature of the parties relationship. This included the information provided by the parties about the genuine nature of the parties’ relationship and the information detailed below. It also included information provided by witnesses and third party statements who informed the Tribunal of their views about the genuine and continuing nature of the parties’ relationship. Even if the Tribunal accepts that the applicant and the sponsor have been in a spousal relationship for just over two years, a genuine spousal relationship is the basic requirement for a partner visa application, and the parties have failed to further satisfy the Tribunal, in this case, that the longevity of their relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.

19. In May 2017, the applicant’s migration agent stated the following: the sponsor’s family are from an Islamic minority group and hold strict Islamic and cultural views. The group believe that they should only marry within the religious sect of Ahmadiyya. The sponsor entered into an extra-marital relationship prior to her marriage. Her father immediately arranged for the Islamic marriage to take place to avoid shame and embarrassment in the community. Her father will not accept her returning home as this would indicate to the sponsor’s sisters that they approve and/or and are complicit with the circumstances resulting in the sponsor leaving home. It is not socially acceptable to allow a married woman to return to the family home. The sponsor put forward the same information about her religious sect and cultural heritage. She stated that her minority religious sect is usually persecuted by the Sunni group. Her marriage to the applicant, who is from the Sikh religion, caused a problem. Her father called a Sunni Sheikh who performed the parties’ marriage and the applicant’s conversion to a Sunni Muslim. She is required to remain with her partner after marriage and he is required to take care of her, should the visa be refused she would depart with the applicant. The Tribunal accepts that inter-religious sect and cultural marriage may present challenges. However, the information before the Tribunal is that the parties willingly entered their relationship and marriage. In a statutory declaration a friend of the parties stated that he talked with the applicant about the parties’ marriage and provided the sponsor contacts of various religious scholars to discuss their relationship and marriage. The parties’ evidence is that they discussed their religions and they proceeded with their marriage. They married knowing the applicant’s status in Australia and that he did not have a visa to remain in Australia. The sponsor’s sister stated that she and her husband live with her parents and the parties visit and have a close circle of friends in Sydney. The Tribunal is of the view that the parties would have understood that their circumstances may present them with difficulties. However, the sponsor is not required to return to her family’s home or to leave Australia. While the Tribunal accepts that the sponsor has cultural and religious reasons for not wanting to be separated from the applicant, it also accepts that many couples in these situations temporarily separated while visa issues are being resolved. Ultimately it is up to the sponsor, should the Schedule 3 criteria not be waived, whether she departs Australia with the applicant or finds alternate accommodation for the time the applicant may be offshore. The Tribunal is not satisfied that these are compelling reasons that should compel the Tribunal not to apply the Schedule 3 criteria.

20. The applicant’s migration agent stated that the applicant converted (to Islam) and is likely to suffer mistreatment in India due to that conversion, where the majority (of people) are Hindus.  The applicant stated that his conversion to Islam was a huge decision with severe consequences and sacrifices.  He will face major hardship from his family, friends and community in India. He would not be provided the right environment to practice his newly adopted religion and would struggle to receive guidance to fulfil an Islamic lifestyle.  His family would be shamed because of his conversion and because he did not obtain a degree in Australia. He would also be exposed to his father’s aggression fuelled by alcoholism.  In Australia the sponsor and her family have given him guidance and support during his ‘journey to Islam’.  The sponsor claimed that the majority of people in India are Sunni Muslim and the rest are Hindu and Sikh.  As she was taught in the Ahmadiyya ‘way of Muslim’, she would find significant differences with Muslims in India.  She is worried about the potential of being persecuted as a result of her religion and race.  The applicant told the Tribunal that the sponsor speaks with his mother and father.  He said that he also talks with his parents and siblings. In March 2017, a friend of the sponsor of 20 years stated ‘the parents of both the couples gave their blessing when Amrit and Ayesha announced their wish to be married’.

21. Other information before the Tribunal is that:

    ‘Muslims comprise 14.2 per cent of the population and India has the third highest Muslim population in the world. Most Muslims in India live in communities where they constitute a minority, generally alongside a Hindu majority. Other information is that Section 15 of the Constitution prohibits discrimination against any citizen on the grounds of religion. Section 25 guarantees the right to freely profess, practise and propagate religion, and section 26 guarantees every religious denomination or any sect the freedom to manage its own religious affairs. Federal law provides minority community status to six religious groups: Muslims, Sikhs, Christians, Parsis, Jains and Buddhists. State governments can grant minority status to religious groups that are minorities in a particular region.’ Refer DFAT country Information Report India dated 17 October 2018. s://dfat.gov.au/about-us/publications/Documents/country-information-report-india.pdf

    Ahmaddiya have been identified as sects of Islam in 2011 Census of India apart from Sunnis, Shias, Bohras and Agakhanis. India has a significant Ahmadiyya population. Most of them live in Rajasthan, Odisha, Haryana, Bihar, Delhi, Uttar Pradesh, and a few in Punjab in the area of Qadian. In India, Ahmadis are considered to be Muslims by the Government of India (unlike in neighboring Pakistan). This recognition is supported by a court verdict (Shihabuddin Koya vs. Ahammed Koya, A.I.R. 1971 Ker 206). There is no legislation that declares Ahmadis non-Muslims or limits their activities, but they are not allowed to sit on the All India Muslim Personal Law Board, a body of religious leaders India's government recognises as representative of Indian Muslims. Ahmadiyya are estimated to be from 60,000 to 1 million in India. Refer Wikipedia Islam in India. >

    The Tribunal accepts that the applicant’s conversion to Islam may not be agreeable to some people. It accepts that returning to India may present him with challenges. It considered the applicant’s evidence of receiving religious guidance from the sponsor and her family. It also considered his evidence of having a strong relationship with them and of loving his father-in-law and the evidence given by family members and the high regard they have for the applicant. Accordingly, it considers it reasonable to expect that the applicant would continue to receive guidance about his religion and Islamic lifestyle, for the time he would be offshore from the sponsor and her family. Although there are claims of the applicant and/or the sponsor being in danger because of their cultural and religious beliefs, the applicant has not provided any specific independent information to the Tribunal to substantiate any threat, real or perceived, against the applicant or the sponsor because of their religious or cultural beliefs. The applicant’s migration agent provided an article ‘Ruling from the World Head of the Ahmadiyya Muslim Community’ and another article ‘Evidence of Muslim/Hindu tensions in India.’ The Tribunal considered this information to be generic and not specific to the applicant. The Tribunal is aware that there are a large number of Muslims in India. It is also aware that there are a large number of Ahmadis living in India who are considered to be Muslims by the Government of India and there is no legislation that declares Ahmadis non-Muslims or limits their activities. Additionally, the applicant also has not provided any independent information about his father’s alcoholism or danger to him because of his father’s aggression. The Tribunal is not satisfied that these are compelling reasons that should compel the Tribunal not to apply the Schedule 3 criteria.

22. The sponsor claimed that culturally it is the applicant’s responsibility to take care of her. Should she return to her family home after a few months of marriage, community members would speak ill of her and her family and it would be negatively viewed and construed. Because the parties began living together on 24 January 2017, prior to their marriage, her parents will not accept her returning home. She is a girl from a Muslim background of Pakistani origin and her actions would be viewed as shameful and unacceptable. As a result of her actions there will be repercussions on her sisters’ ability to attract Muslim suitors from the Muslim community. The sponsor told the Tribunal the following: as a Muslim girl it is culturally important to remain in a married relationship and to live with the applicant. She is relies on the applicant and if they are separated she will not handle this well and does not know what she will do. The outcome of separation cannot be predicted and would be devastating. The parties support each other. When she stays at her parents’ home she has difficulty sleeping. She wants to start her future with the applicant. She is 31 years old and wants a child. The parties have extended their lease and are looking for a house. The Tribunal’s view is that the sponsor was and is not compelled to return to her family’s home and the circumstances described need not arise. However, it notes that it is now more than two years since the parties married and on the evidence the sponsor has stayed in her parents’ home. It accepts that when the sponsor stays at her parents’ home she may have difficulty sleeping. The Tribunal notes that one of the sponsor’s sisters attended the Tribunal hearing accompanied by her husband, so has attracted a husband and that family and friends accept the parties’ relationship. It accepts that the sponsor may not want to find alternative accommodation or live alone and that she wants to continue living with the applicant. It does not accept that the parties’ temporary separation would result in the parties not being able to support each other or that the applicant would be unable to continue to care for the sponsor and meet cultural expectations. The Tribunal does not accept that the parties being separated for a time will prevent them having children, particularly when considering that the sponsor is 31 years old and the applicant is 23 years old. The issue of the sponsor’s health has been discussed in this decision record. However, the Tribunal accepts that separation from the applicant may be difficult and present challenges for the parties. The Tribunal is not satisfied that these are compelling reasons that should compel the Tribunal not to apply the Schedule 3 criteria.

23. Other information is that, the sponsor is strongly and emotionally attached to the applicant and they would never separate. She fears being left alone when the sponsor goes to work. She cannot live on her own in Australia as she has never done so before and has always had someone to support her and provide her with security and support. She fears living in India because of her religious difference, language and cultural barrier. In April 2017 she stated that she was feeling depressed at the thought of living in India and of being away from her family. She would be in a new environment where she does not speak the language or share the main religion. The applicant stated that the sponsor relies on him to take care of her emotionally and financially and he takes full responsibility to support and care for her. The parties lean on each other physically and emotionally and never want to be apart. If he were to leave the applicant she would have no one to rely one and would not be able to live alone ‘due to culture’. The Tribunal understands that partners in a relationship may rely on each other and may not want to be separated. It is of the view that the applicant and the sponsor can continue to provide support for each other even if the applicant departed Australia. It accepts that it may be a challenge for the sponsor to live alone for a time or for her to find alternative living arrangements. It has not been provided any substantive information why culturally the sponsor would be unable to live alone for a time if necessary. There is evidence to suggest the parties’ relationship and reliance on each other could endure separation for a time, particularly when considering the strong relationship and support the parties have from the sponsor’s family and friends. It encourages the sponsor to seek the assistance of her family and friends during any separation from the applicant. As discussed previously the sponsor is not required to depart Australia. The Tribunal is not satisfied that these are compelling reasons that should compel the Tribunal not to apply the Schedule 3 criteria.

1. In April 2017, the sponsor stated the following: she has a genetic disposition to asthma and in 2015 was diagnosed with the condition.  She is prescribed ‘two types of puff medications daily’ (of one type) daily and the other as required. In about 2016 she was diagnosed as having the lung capacity of a 55 year old. She needs access to management programs and consultation with her general practitioner. She previously experienced anxiety and panic attacks during times of stress and believes this condition and her lung condition because of the Indian climate would be exacerbated. The applicant provided the same details about the sponsor’s health and stated that because of him she is the happiest she has ever been.  He is motivated to care and provide for the sponsor. He reminds the sponsor to take her medication and ‘runs’ to give her the Ventolin when she has asthma symptoms. The pollution in India would depreciate her health immediately and her asthma and lung conditions would be affected.  As the applicant, could not return to his family home he would be forced to work long hours, leaving the sponsor alone and this would heighten her depression and place her at risk of being alone when suffering an asthma attack. The Tribunal considered the information in the letter dated 14 March 2019 from the psychologist (detailed below) and the medical letters about her asthma and lung conditions. 

2. Statutory declarations dated 2019 from the sponsor’s parents and sister provided information about the parties. The sponsor’s sister stated the following: the sponsor moved away from her parents who she is close to.  The applicant has taken the responsibility of caring for the sponsor.  He has cared for her during difficult times particularly as the sponsor struggled to cope on her own in the past and has struggled with anxiety and panic attacks for some time. The parties are connected to her parents, younger sister, herself and her husband and regularly socialise with the family.  The applicant speaks regularly with her parents and her father has developed a strong relationship with the applicant. The sponsor’s father stated the following: he and his wife visit the parties almost fortnightly. Recently the sponsor, who suffers from severe asthma and needs help.  Recently the sponsor had an asthma attack and couldn’t find her Ventolin and the applicant found it and gave it to her. The sponsor’s mother stated the following: she supports the parties. The sponsor relies on the applicant who comforts her when she sometimes experiences panic attacks. She is in contact with the parties often including festivals and family occasions. It would be difficult and traumatising if the parties were separated and life would come to a standstill. If that happens there can be grave consequences for the sponsor’s health as she suffers from asthma which is also triggered by her emotional state.  In statutory declarations a friend of the parties stated that he believes that the parties being separated will have a negative impact on the sponsor’s emotional and spiritual well-being.  The sponsor’s sister told the Tribunal that the applicant had had a positive influence on the sponsor. She stated that the sponsor suffered from anxiety and depressive episodes and the applicant helps her manage these and day-to-day matters. She said the sponsor has a loving supportive family but her support is limited by the demands of their own lives. She said it has been difficult for the sponsor to hold a job, engage socially and she feels her decision making has been impaired. However the sponsor is doing a lot better but she still has anxiety about her mental health issues. The sponsor’s father told the Tribunal that the sponsor has been depressed and anxious in the past. If the applicant goes back to India the sponsor may revert back to her condition. He stated that the psychologist stated that the sponsor has improved a lot and needs a couple of sessions to help her obtain a job. The sponsor’s mother told the Tribunal that the sponsor stopped seeing a psychologist because she felt she didn’t need to see him. She stated that the sponsor has completed a retail course. She claimed that the sponsor has found her anchor in the visa applicant and her anxiety has improved. She stated that should the applicant depart Australia the sponsor will be highly traumatised and it will cause difficulty in her future life.

3. The Tribunal accepts that the sponsor suffers from the conditions as claimed and that the applicant assists the sponsor when needed. It also accepts that the applicant and the sponsor being separated for a time may present the sponsor with challenges regarding her mental health. It notes that the sponsor has resumed psychologist sessions and has support networks in family and friends to help her cope with any trauma that may arise during any separation from the applicant. Ultimately the sponsor is not required to depart Australia and may be able to put in place strategies to have her Ventolin at hand and seek the assistance of her family and friends or health professionals during any separation from the applicant. The applicant also has not provided evidence to substantiate the claims he is making about his family and not being able to return to India, or that he would be forced to work long hours. The applicant has a proven record of initially supporting himself financially in Australia and then supporting himself and the sponsor; there is no evidence that he could not support himself and the sponsor while offshore. The Tribunal is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.

4. The sponsor stated that, her father has been diagnosed with Crohn’s disease, which requires daily management and medication and limits his ability to move and support himself. He requires quarterly colonoscopy tests and bowel screening. He requires full time care which the sponsor, her mother and her two sisters share. He is 70 years old and at risk of developing severe medical conditions, including cancer and this would result in his health deteriorating. His physical condition is connected to his mental health and any decrease in his mental health would see his condition worsening. He would be mentally exhausted if she lived in India. In his statutory declaration the sponsor’s father stated the following: he has Crohne’s disease and is prohibited from doing hard work. The applicant helps him and is of great assistance doing the lawn, gardening, cutting trees, cutting fences and doing some landscaping. As previously stated the sponsor is not required to depart Australia, therefore alleviating further stress on her father. There is no evidence before the Tribunal that the work the applicant assists his father-in-law doing cannot be completed by another person during any temporary absence of the applicant. The Tribunal is not satisfied that these are compelling reasons that should compel the Tribunal not to apply the Schedule 3 criteria.

5. Also in April 2017, the sponsor claimed that she is financially dependent on the applicant. She does not have the income to support herself and the applicant would not be able to support her from India. She has not been employed since 2014 and is finding it difficult to find employment. Her studies and qualification in a ‘niche’ area require a high skill set for her to become competitive in the marketplace. The applicant provided a copy of a Centrelink Newstart Allowance statement. This records a payment to her for a time period from 20 October 2015 to 16 November 2015 of $1,064.40. The sponsor stated that as she had informed Centrelink of her marriage to the applicant her Cenrelink payment may be reduced. In April 2017, the applicant stated that he was working full time as an insulation installer. He earned $800 weekly and this supports the parties. He had $2,000 in the bank which was not enough to support the parties in India. He is unqualified and would only be able to find work as a labourer (in India). A labourer works from 5am to 7pm and earn $50 weekly in difficult conditions. The approximate cost for the parties to live in India (including visa related costs) would be $480 weekly. He stated that if he was to leave the sponsor she would not be able to live alone and would have no one to rely on financially. The applicant told the Tribunal the following: the sponsor manages the parties’ finances and accounts. The parties started a business, in the sponsor’s name, four to five months after they married. He works five days a week primarily in Sydney from 5: am to 3: pm to 5: pm and then returns home. He earns $1,500 to $1,700 weekly as a sub-contractor installing insulation and this money is split with the sponsor. The parties have approximately $5,600 in the bank. He purchased a car for $7,400 with the assistance of a loan from his father-in-law, which he has paid back. His father-in-law helped the parties buy a television. The sponsor has some gold and he gifted her a diamond ring for Christmas 2018. The sponsor’s parents helped in paying for the sponsors study. They live in a large four to five bedroomed home with the sponsor’s sister and her husband and her younger sister. Statutory declarations from the sponsor’s parents provide information about the parties. The sponsor’s father stated the following: the sponsor supports the applicant in his business activities and the parties are saving to buy a house. The sponsor’s mother stated the following: the sponsor’s father arranged a loan for the applicant to buy a car for his business and he re-payed the loan. The sponsor attends to the administration side of the applicant’s business. She manages everything from sorting out the finances to working as his private secretary. The Tribunal has not been provided evidence that the applicant would not find employment outside of Australia. During the time the applicant lived in Australia, he has proven resourceful. He supported himself and later the parties financially. Neither has any independent evidence been provided to demonstrate that the sponsor is unable to find employment in areas, outside of the ‘niche’ area of her study and qualifications. The evidence from the sponsor’s parents is that she has taken a retail course and will attend her counsellor for tutoring to obtain employment. While it may not be the sponsors chosen option, it may be necessary for her to support herself financially by finding employment, in another lesser chosen field and/or government or family assistance during the applicant’s absence. The Tribunal accepts that the applicant’s absence may present financial challenges for the parties. The Tribunal is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.

   Other considerations

6. At the Tribunal hearing the applicant’s migration sought additional time to provide health records for the sponsor. The Tribunal drew to the migration agent’s attention the fact that the application for review had been with the Tribunal since July 2017. Therefore the applicant already had been provided ample time to provide all information to the Tribunal. The migration agent stated that she had only heard about the sponsor’s father’s request for these records the evening before the hearing. The sponsor’s father told the Tribunal that he had not requested medical records for the sponsor rather he asked the psychologist to attend the Tribunal hearing but he could not. The sponsor appeared perplexed by these circumstances and said she had not requested medical records. At the end of the Tribunal hearing the applicant’s migration agent again requested additional time to meet with the applicant and provide further information to the Tribunal. The Tribunal asked the applicant, the sponsor, the applicant’s father-in-law and mother-in-law whether they had additional information to provide the Tribunal and they told the Tribunal they had not. In a letter dated 14 March 2019 a psychologist stated the following: the sponsor attended psychological treatment sessions from 21 January 2016 to 4 November 2016 and an additional session on 14 March 2019. Following the sponsor’ self-reporting, she was diagnosed with mixed anxiety and depression, her psychological condition severely impacting on her ability to function daily. She reported improvement in her condition over the past two years through the support of the applicant. She sought psychological treatment again because her condition has been exacerbated with the possibility of the applicant returning to India. At the time the sponsor met the applicant she was attending treatment sessions and there were some sessions that included her parents. The psychologist does not recommend that the sponsor travels to India, because she requires psychological treatment sessions and the support of her family and applicant in Australia. The Tribunal accepts that the sponsor has the conditions as claimed and that separation from the applicant may present her with challenges. However the Tribunal is of the view that the sponsor is supported by a network of family and friends and has returned to psychological sessions. It encourages the sponsor to rely on her networks and health professionals during any separation from the applicant. The Tribunal also notes that there is a wide range of medical, government and community support available to the sponsor to assist her psychologically and emotionally whilst the applicant is offshore if this is necessary. It also considers that the applicant can continue to support the sponsor while offshore and vice versa through the many communication tools that are available. It does not accept that her condition is a compelling reason to not apply the Schedule 3 criteria. The Tribunal told the applicant’s migration agent that it would accept additional information up until the time of its decision. The Tribunal has not been provided further information.

7. At the Tribunal hearing the applicant’s migration agent repeatedly inferred that she had knowledge about the sponsor’s health that she could not disclose to the Tribunal. However she later stated that she felt that the applicant, sponsor and witnesses had given insight into the sponsor’s health. The Tribunal told the applicant and the migration agent that it could only consider information before it.

8. The applicant’s migration agent told the Tribunal that the parties’ relationship of two years should be recognised. She requested consideration of current and past Departmental policy and commented that although policy has become stricter it does not mean that relationships do not suffer. She stated that the parties have formed a family and had their roles within the family unit and had their business and wanted to have a child. She claimed that offshore processing may take 12 to 18 months and it is unknown how the coming election would affect the parties. She stated that the sponsor’s health had improved significantly and if the parties’ relationship was put back for two years it would have a significant adverse impact on the sponsor. She stated that offshore processing could take 12 to 18 months and it is unknown what effect the coming election would have on this timeline.

9. The parties’ relationship and the sponsor’s health, the parties having children and the effect of the applicant departing Australia and the parties being separated for a time has been discussed above. The Tribunal is not bound by Departmental policy.  It is guided by court determinations and is not precluded in any way in considering Tribunal decisions and policy currently in force. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed above. The Tribunal accepts that it is possible that offshore processing may be lengthy.  These circumstances are not unusual for numerous couples, when a partner does not meet the criteria for the grant of a partner visa and an offshore visa application is necessary.  The Tribunal will not speculate on the outcome of the elections in Australia.

10. 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).

11. There is no evidence that the applicant meets any of the alternative criteria for the grant of the visa.

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

    DECISION

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

    Helena Claringbold
    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.