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

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).
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.
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.
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
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…

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.

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Details

Case: [2018] AATA 5868
Decision Date: 17 December 2018

CaseChat Overview and Summary

This matter concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820, made by Mr Singh. The primary issue before the Tribunal was whether Mr Singh met the Schedule 3 criteria for the visa, or if not, whether there were compelling reasons to waive these criteria. Mr Singh had not held a substantive visa at the time of his application, which necessitated meeting Schedule 3 criteria 3001, 3003, and 3004, unless the Minister was satisfied that compelling reasons existed for not applying them.

The Tribunal was required to determine if Mr Singh satisfied Schedule 3 criterion 3001, which mandates that an application be lodged within 28 days of the "relevant day." The "relevant day" was defined in the regulations, and in Mr Singh's case, it was the day he last held a substantive visa. The Tribunal also had to consider whether, if Mr Singh failed to meet the Schedule 3 criteria, there were compelling reasons to waive their application, a concept requiring sufficiently convincing circumstances to warrant the exercise of discretion.

The Tribunal found that Mr Singh's substantive visa ceased on 27 October 2010, and he lodged his Partner visa application on 1 May 2012. This meant he did not meet the 28-day timeframe stipulated by Schedule 3 criterion 3001. As he failed to satisfy one of the mandatory Schedule 3 criteria, it was unnecessary to consider the remaining criteria. The Tribunal then considered the concept of "compelling reasons" for waiving the criteria, noting that such reasons must be sufficiently powerful to lead a decision-maker to exercise their discretion in favour of the applicant, citing established case law.

Ultimately, the Tribunal affirmed the decision not to grant Mr Singh the Partner (Temporary) (Class UK) visa, concluding that he did not satisfy the necessary criteria for its grant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal finds that this information does not support that the parties were in a genuine spouse relationship. CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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). 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 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. 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. 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 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. 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.

Decision

Reasons for decision

For the reasons above, the applicant 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.Kate MillarMemberSchedule 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

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