Singh (Migration)

[2018] AATA 4905

Singh (Migration) [2018] AATA 4905 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Puneet Singh

CASE NUMBER:  1706632

DIBP REFERENCE(S):  CLF2011/88782 CLF2013/236305

MEMBER:Nicholas McGowan

DATE:22 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

· cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

Statement made on 22 October 2018 at 7:55am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Federal Circuit Court remittal – judicial error – waiver of Schedule 3 criteria – compelling reasons – child of the relationship – DNA evidence provided – decision under review remitted for reconsideration

LEGISLATION
Migration Regulations 1994 (Cth) Schedule 2 cl 820.211

CASES
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

Refusal review: Partner (Temporary) (Class UK) subclass 820 visa

PARTICULARS

1. The applicant applied for the 820 visa, was refused by the Minister’s delegate and the appeal body before the Federal Circuit Court ordered the appeals body, this Tribunal (differently constituted) reconsider this case because it feel previously into jurisdictional error in its earlier decision for the reasons identified in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32.

   ISSUE

2. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria, and if not, whether there are compelling reasons for not applying them.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. It is not claimed by the parties that their application meets the Schedule 3 criteria, what has been claimed is that there are compelling reasons to not apply the criteria in their case.

   Compelling reasons

4. The Tribunal considered each of the relevant circumstances of the parties, as outlined in their previous and more recent evidence submitted to this Tribunal. In this regard, the Tribunal is satisfied from the medical records (DNA sampling folios 80-82) that the parties have a child of their relationship (birth certificate also provided at folio 46). The Tribunal can see no reason why this family should be forced to have their interests so significantly affected when it has long been recognised that maintaining or uniting families is in the best interests of all Australians, not just the applicant, sponsor and their infant child. Accordingly, given the circumstances of this case, and in particular the emotional support the applicant provides to his wife and Australian child, the Tribunal is compelled to not apply Schedule 3.

   FINDINGS

5. The Tribunal is satisfied a compelling reason exists to not apply the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

6. Given the finding above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

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