Singh (Migration)

[2018] AATA 5868

Singh (Migration) [2018] AATA 5868 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tejpreet Singh

CASE NUMBER:  1724609

HOME AFFAIRS REFERENCE(S):           CLF2012/86207

MEMBER:Kate Millar

DATE:17 December 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 17 December 2018 at 10:10am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – invalid s 375A certificate – inconsistent dates provided by sponsor – Schedule 3 criteria – application lodged outside of relevant timeframe – waiver of criteria – sponsor failed to attend hearings ­– continuance of relationship – evidence of residing together – parentage of sponsor’s child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285
Boakye-Danquah v MIMIA (2002) 116 FCR 557 
MIBP v Singh [2016] FCAFC 183 
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration and Border Protection to refuse to grant Mr Singh a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Singh applied for the visa on 1 May 2012 on the basis of his relationship with his sponsor, Ms Eve MacLeod. 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), and Mr Singh must meet the primary criteria to be granted the visa.

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 that Mr Singh was the spouse of Ms MacLeod as claimed.

4. On 12 May 2015, the Tribunal affirmed the decision to refuse Mr Singh the visa, however this was on a different basis.  The Tribunal found that Mr Singh did not meet the Schedule 3 requirement as required by cl.820.211(2)(d).  This was because Mr Singh did not hold a substantive visa at the time of his application, also did not meet the requirement to have applied for the visa within 28 days of last holding a substantive visa, and there were no compelling reasons for not applying these criteria

5. This decision was remitted to this Tribunal for reconsideration by the Federal Circuit Court by the consent of the Minister for reconsideration following the decision in Waensila v MIBP.[1] This decision of the Full Federal Court overturned the Federal Court decision in Boakye-Danquah v MIMIA[2] and found that the compelling reasons contemplated by cl.820.211(2)(d) included both the circumstances at the time of the application and the circumstances at the time of the decision, and that it was an error to ignore events that emerged after the date of the visa application. 

   [1] [2016] FCAFC 32

   [2] (2002) 116 FCR 557

6. The decision was again affirmed by the Tribunal on 14 September 2016. The Minister again consented to this matter being remitted to the Tribunal for reconsideration following the decision in MIBP v Singh[3] as an invalid certificate issued by a delegate of the Minister under s.375A of the Act resulted in particular information not being disclosed to him.    

   [3] [2016] FCAFC 183

7. The applicant appeared before the Tribunal (differently consisted) on 5 December 2018 and 12 December 2018 to give evidence and present arguments. The Tribunal attempted to contact Ms MacLeod by telephone on 5 December 2018 but was not successful.  She did not attend either hearing.  

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

   SECTION 375A CERTIFICATE

9. A certificate was issued by a delegate of the Minister on 4 July 2017 under s.375A of the Act.  This certificate purported to specify that the Tribunal must do all things necessary to ensure the documentation or information contained in specified parts of the Department file not be disclosed to any person other than a member of the Tribunal as constituted for the particular review. 

10. In consenting to the matter being remitted to the Tribunal for a further hearing on the second occasion, the Minister conceded that this certificate was invalid, and in denying the applicant access to this material, he was not afforded the opportunity for a fair hearing.

11. The Tribunal referred this certificate back to the Minster as it had not been revoked.  A delegate of the Minister revoked the s.375A certificate issued on 4 July 2017 and issued a new s.375A certificate on 17 October 2018.

12. The new certificate said that the same folios from the Department file should not be released because they contained departmental notes and internal departmental procedures which reveal confidential departmental investigative methods used to detect breaches of the law.  It also stated the notes contained case officer full names and it would be contrary to public interest to release this information because it identifies person(s) who needs to remain confidential for safety reasons.

13. The documents covered by the certificate are, to a large extent, emails from the applicant’s representative and cannot be considered to be confidential.  The purported investigative methods revealed are a telephone call to the sponsor in which she provided some initial information but then said she could not discuss the matter further as she need to attend to her child. There is nothing on the file to indicate that the applicant poses a safety concern. 

14. The Tribunal concluded the certificate was invalid and released the information to the applicant following the hearing on 5 December 2018.  As the applicant had not been provided with this material previously, and his representative was not available for the hearing, the hearing was adjourned to allow him to consider the information and confer with his representative if he wished to do so.

15. On resuming the hearing, the representative was again not available to attend.  Mr Singh said he had considered the material provided from the Department file, and thought that it supported his case.  As this was not entirely the case as there was information that, on being contacted, his sponsor could not give his date of birth and incorrectly stated the date of their marriage this information was put to him under s.359AA of the Act. 

16. In response, Mr Singh said that Ms MacLeod was not good with dates, and gave as an example when her child fell over and hurt his arm.  They agreed they would take him to hospital the next day, but 15 hours later she had forgotten she was going to take him to hospital. 

17. The Tribunal finds that this information does not support that the parties were in a  genuine spouse relationship. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether Mr Singh meets the Schedule 3 criteria, or if not whether there are compelling reasons not to apply these criteria. 

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

19. 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).

20. 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

21. 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.

22. Mr Singh acknowledges his substantive visa ceased on 27 October 2010, and he lodged an application for the Partner (Temporary) (Class UK) visa on 1 May 2012.  He said that in the time after his substantive visa ceased he applied for a further student visa and was pursuing refusal of this visa through the Tribunal and Federal Circuit Court.  His applications for review of the decision were not successful. 

23. As it applies to Mr Singh the relevant day is the day he last held a substantive visa.  AS this was 27 October 2010 and his visa application was made on 1 May 2012, there is more than 28 days since his substantive visa ceased and he does not meet Schedule 3 criterion 3001. As he does not meet one of the Schedule 3 criteria, it is not necessary to consider the remaining criteria.  

    Compelling reasons

24. 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.

25. 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.

26. In this case, Mr Singh submits as compelling reasons for waiving the Schedule criteria that that he and Ms MacLeod love each other and that he does not want to be separated from [Child 1], who he says is his biological child.

27. Ms MacLeod has not appeared at the previous four hearings of this Tribunal.  It was put to Mr Singh that this caused a concern to the Tribunal about whether he had continued to be in a relationship with Ms MacLeod as claimed.  It was explained to Mr Singh at the hearing on 5 December 2018 that he needed to provided further information as requested in the letter inviting him to a hearing.  The hearing invitation requested that Ms MacLeod attend to give evidence.  It requested that he provide evidence that he has been living with Ms MacLeod from the date of the visa application, and evidence that he is the father of [Child 1]. 

28. Mr Singh said Ms MacLeod says she will come to the hearings but does not attend.  At the first hearing he said he had called Ms MacLeod the night before and she said she would attend.  On being asked if this means they are no longer living together as he had to call her, he said they were still living together.  He inferred at the hearing on 12 December 2018 that she has a drug problem and will also not attend for drug rehabilitation.  Mr Singh said this is why they no longer have a joint bank account as Ms MacLeod would withdraw the money from the account.  I do not accept that if they remained in a loving relationship as stated by Mr Singh that she would not attend the hearings of this matter or make herself available to speak to the Tribunal. 

29. At all four hearings he was advised that if he failed to provide information that should be available to him the Tribunal may draw an adverse inference from his inability to do so.  In particular, Mr Singh was requested in wring and at the hearing on 5 December 2018 to provide any information to support his claims that he lives with Ms MacLeod and that he is either the biological father of [Child 1] or is involved in his day to day care. 

30. He says he is unable to provide any such evidence other than the two statutory declarations he provide from friends.    

31. Mr Singh provided a statutory declaration dated 4 December 2018 from Sandeep Singh Malhi that states he has been friends with Mr Singh since before they came to Australia, and that he sees Mr Singh and Eva Sky together every second weekend and call each other four times a week. Mr Singh also provided a statutory declaration from Neha Pathak stating that he has known Mr Singh for eight years and that he is close friends with Mr Singh and Eva and they see each other at every possible opportunity as well as at Indian community events.

32. Neither statutory declaration was accompanied by identification or evidence of Australian citizenship or permanent residency.  Neither deponent appeared before the Tribunal.  The Tribunal is not satisfied that it can rely on these documents as evidence that Mr Singh is in a spouse relationship with Ms Macleod.

33. I do not accept Mr Singh would be unable to provide other evidence that he continued to live at the same address as Ms MacLeod if he did so, and accordingly draw an adverse inference that he does not live with her.  I note Mr Singh has been represented by a legal practitioner who is experienced in this jurisdiction throughout his applications for review of this decision.    

34. Due to the combination of Ms MacLeod failing to attend the hearing and Mr Singh’s lack of evidence other than the two statutory declarations to show he lives with her I am not satisfied this is the case.  It follows I do not find his relationship with Ms MacLeod to be a compelling reason not to apply the Schedule 3 criteria.

35. Mr Singh has been asked by the Department and this Tribunal from at least 2014 either to provide evidence that he is the biological father of [Child 1] or that he is involved in the day to day care of [Child 1].  Mr Singh is not named as the father on [Child 1]’s birth certificate.  Mr Singh has not provided DNA test results and says Ms MacLeod will not consent to DNA testing.  He provides a statement signed by Ms Macleod that her mother did not approve of the relationship so she did not put Mr Singh’s name on the birth certificate. 

36. He has also failed to provide any evidence other than his oral evidence that he is involved in [Child 1]’s day to day care.  He says that this is because everyone involved with [Child 1] requires Ms MacLeod’s consent to provide him with any supportive evidence.    I do not accept that if he was involved in [Child 1]’s day to day care as he asserts that he would not be able to provide any evidence other than his own oral evidence that this is the case. 

37. As a result, I am not satisfied that Mr Singh is either the biological father of [Child 1] or has the involvement with [Child 1] he claims and I am not satisfied this is a compelling reason not to apply the Schedule 3 criteria.    

38. Mr Singh said that for the previous eight years he has been dependent on his family in India and on Ms MacLeod as he has been unable to work.  I do not accept either that he is dependent on Ms MacLeod or, even if he were, that this is a compelling reason not to apply the Schedule 3 criteria.   

39. As I am not satisfied that any of the reasons provide by Mr Singh, either individually or in combination, are compelling reasons not to apply the Schedule 3 criteria. Accordingly, Mr Singh does not meet cl.820.211(2)(d)(ii).

40. I am further not satisfied that he is the father of [Child 1], or that any of the other alternative criteria in cl.820.211 apply. It follows he does not meet cl.820.211 of Schedule 2 of the Regulations.

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

    DECISION

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

    Kate Millar
    Member

    
    

    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.