SINGH (Migration)

[2017] AATA 3043

SINGH (Migration) [2017] AATA 3043 (13 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PARAMPREET SINGH

CASE NUMBER:  1622420

DIBP REFERENCE(S):  BCC2015/2649043

MEMBER:Justin Owen

DATE:13 December 2017

PLACE OF DECISION:  Sydney

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 13 December 2017 at 11:26am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Requirement for application be lodged within 28 days of the relevant day – Application not lodged in time – Compelling circumstances – Prenatal care and support of sponsor – Effect of removal on sponsor and child

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3, Criterion 3001

CASES
MZYPZ v MIAC [2012] FCA 478
Babicci v MIMIA (2005) 141 FCR 285
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 of a delegate of the Minister for Immigration on 8 December 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 September 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2). The delegate found that the applicant was mot the holder of a substantive visa at the time he lodged the partner visa application. The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the applicant, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria.

4. The applicant appeared before the Tribunal on 4 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s aunt Avleen Kour, the [sponsor], the sponsor’s [father], the sponsor’s [sister] and two of the sponsor and applicant’s friends Lilla Ophir and Sarah Jane Cornale. The Tribunal hearing was conducted with the assistance of an interpreter in the Polish and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 (as attached to this decision), and if not, whether there are compelling reasons for not applying them.

8. The Tribunal has taken into consideration all the evidence in the Departmental file BCC2015/2649043 folio numbered 1-142, the Tribunal’s file 1622420, a written submission from the applicant’s representative dated 1 December 2017, the oral evidence given by both parties and witnesses at the Tribunal’s hearing along with written information provided to the Tribunal by the applicant post hearing. 

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

9. 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).

10. 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

11. 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.

12. The Tribunal finds that the applicant last held a substantive visa on 7 January 2014. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.

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

14. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

15. 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.

16. 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.

17. The Tribunal has put a significant amount of weight on the fact the applicant and sponsor are expecting the arrival of their son in April 2018.  A number of medical certificates and reports were submitted to the Tribunal confirming the sponsor’s pregnancy(T1, Folio.121,120). 

18. In oral evidence to the Tribunal the sponsor spoke about the various demands she faces caring for her son and what the challenges she would face if the applicant was forced to relocate off-shore.   She spoke in great detail about the significant responsibilities the applicant was undertaking in support of her and their unborn child.  A range of witnesses including the sponsor’s father, the sponsor’s sister and mutual friends of both the applicant and the sponsor all in oral evidence testified that the applicant provides a significant amount of assistance and support – both physical and emotional – in providing prenatal care for the sponsor and her unborn son.  The oral evidence was spontaneous and consistent and the Tribunal accepts this evidence at face value.  The applicant’s written submission to the Tribunal submitted that it is important for the sponsor to have the love and support of the applicant, particularly during the later stages of the pregnancy and during the child birth period.(T1, Folio.126)   The Tribunal accepts the evidence before it that the sponsor and her son will face a wide range of challenges in the loss of pre and post natal support if the applicant is required to depart Australia.   The Tribunal accepts that the sponsor’s pregnancy is, in this case, a compelling reason because of the prenatal assistance and support the mother (sponsor) requires, and will continue to require, from the applicant. 

19. The Tribunal enquired of the applicant as to the nature and extent of support he was providing to the sponsor. He responded he was responsible for the household, for taking the sponsor to medical appointments and he was very focused on providing the sponsor with strong and stable emotional support. This extended to supporting his elderly in-laws who live close to the home of the applicant and sponsor. The oral evidence of the sponsor was consistent with this assertion. The sponsor’s father in oral evidence stated that the applicant would visit his home at least once a week and assist with a wide range of activities including cleaning the pool, mowing lawns, taking his in-laws to the shops for grocery shopping and generally being on call to assist. Medical evidence was submitted to the Tribunal of the serious medical issues the sponsor’s father was currently facing such as kidney cancer (T1, Folio.118). The sponsor stated her father was almost immobile due to his medical conditions. The sponsor’s father stated that the applicant was vital in helping him and his wife with their living. The applicant’s sister also attested to this in oral evidence. The Tribunal accepts the evidence of the various witnesses on this issue at face value and gives positive weight to this element of the claim for a waiver of Schedule 3 requirements.

20. The applicant and the sponsor both spoke of the financial support the applicant provides to the household and how significant that was in providing both pre and post natal care. The applicant submitted evidence of the Westpac joint bank account that was previously established by himself and the sponsor. The applicant puts money from his salary as a truck driver into the joint account which is then used to be off their car loan as well as a number of other expenses. The applicant submitted a spreadsheet outlining the adverse financial impact the loss of the applicant’s income would have upon the applicant and the sponsor (T1, Folio.238). The after tax family income would fall, according to the applicant’s calculations, from $91,378 to $62,400. The Tribunal is unable to verify the accuracy of the figures submitted. The sponsor in oral evidence stated to the Tribunal that she would not be able to look after her child on a single income. The Tribunal acknowledges that the loss of the applicant’s income would have an adverse effect upon the sponsor’s household with a new baby shortly to arrive. Nevertheless the Tribunal is unconvinced that this represents a compelling reason to exercise the waiver of the Schedule 3 requirements. The Tribunal notes that the sponsor holds [permanent, stable employment]. The [employer] has confirmed the sponsor has been granted 14 weeks of paid maternity leave from April 2018. (T1, Folio.119). The Tribunal does not consider the impact the loss of the applicant’s current income to the sponsor’s household represents a compelling reason for exercising the waiver of Schedule 3 requirements and gives no weight to this element of the claim.

21. The applicant submitted in oral evidence to the Tribunal the emotional support he had received from the sponsor since his involvement in a serious motor vehicle accident in October 2014 which necessitated a number of medical procedures. The applicant stated that he had suffered depression and PTSD as a result of the accident. A range of medical information concerning both the applicant’s injuries and his treatment were submitted to both the delegate and the Tribunal. The sponsor in response to questioning by the Tribunal said that she had provided him with the emotional support to get on with his life after the accident. No evidence however was presented from more recent times as to the ongoing nature of these conditions by the applicant. No medical evidence was tendered that supported the applicant’s claim that the companionship of the sponsor was necessary in successfully addressing and alleviating these conditions. The Tribunal does not consider the applicant ‘s motor vehicle accident and subsequent claimed emotional state as a compelling reason for exercising the waiver of Schedule 3 requirements and gives no weight to this element of the claim.

22. The applicant stated that a compelling reason for the Tribunal exercising the waiver was the fact he was from the Kashmir area in India – an area of considerable conflict. In his statutory declaration of 1 December 2017 he stated that he belongs to a Sikh family which is a minority in Kashmir. He stated his family only have homes in Kashmir and Jammu. The applicant stated that it would not be safe for him to return to Kashmir. The Tribunal acknowledges the unrest and volatility that has occurred in this area. The Tribunal however notes that the applicant is not compelled to return to Kashmir if he reapplied for a Partner visa off-shore. The Tribunal therefore does not consider this claim as a compelling reason for exercising the Schedule 3 criteria and gives no weight to this element of the claim.

23. The applicant’s written statement asserted that the spousal relationship between the applicant and the sponsor has been well recognised by family, friends and society for a considerable period of time.(T1, Folio.126) The oral evidence of the respective families of the applicant and sponsor and their various friends suggests to the Tribunal this is likely the case. Nevertheless the Tribunal does not accept that this recognition in its own right represents a compelling reason for the exercise of a waiver of the Schedule 3 criteria.

24. The sponsor has asserted that her psychological health would be severely affected if the applicant departed Australia.  She further asserted that a separation from him could be detrimental to the future state of her psychological wellbeing and jeopardise her physical health and the wellbeing of their unborn son.  The sponsor said that at this point in her pregnancy she needed the ongoing support the applicant was providing – emotionally, mentally, physically and financially.  She stated that her elderly and infirm parents were unable to provide her with the support she needed, pointing out that the applicant was already spending a significant amount of time assisting his in laws with their own daily lives.  The applicant’s aunt – who the applicant and the sponsor previously resided with – stated in oral evidence that she was particularly concerned about the impact the applicant’s departure from Australia could potentially have upon the sponsor at a delicate time in her pregnancy.

25. The applicant provided to the Tribunal a detailed report from 1 December 2017 authored by a clinical psychologist, Dr Amanda Gordon.  Dr Gordon has conducted an assessment of the respective mental states of the applicant and the sponsor on 29 November 2017.  Dr Gordon’s assessment stated concerning the sponsor: ‘She is very anxious about the emotional void that will be left if her husband had to leave the country, and of having to be a single mother, which she certainly did not plan to be.  She has counted on his financial contribution for their survival.  Her anxiety and current despair put her at great risk of developing postnatal depression, which would then also potentially impact the wellbeing of her new baby.  We have encouraged her to seek psychological support now, to protect her emotional wellbeing and to have someone who can intervene if her mental health declines.’   On the evidence before it, the Tribunal accepts that the current emotional and mental state of the sponsor as she prepares to have her first child represents a compelling reason for the exercise of a waiver of the Schedule 3 criteria.      

26. The sponsor stated that she had undertaken considerable and detailed research into moving to India with the applicant whilst he potentially reapplied for a Partner Visa off-shore.  She stated in oral evidence that the healthcare available for a newborn child in India was simply inadequate.  She also stated that, should she and the applicant move with their son to India whilst the Partner Visa was processed she would in all likelihood lose her existing [employment].  The applicant submitted in written evidence the statement of the Department of Immigration and Border Protection that it would take between 11 and 16 months to currently process an off shore visa application. (T1, Folio.125). The sponsor stated this was a huge concern to her as permanent, full-time [jobs] in [her profession] were increasingly difficult to find.  The Tribunal concurs with the reasonable fears that the sponsor expressed about her employment if the family were to collectively depart Australia to enable the applicant to make an off-shore application.  The Tribunal places positive weight on this element of the applicant’s claim.   

27. The Tribunal notes the applicant has a history of migration non-compliance. The question before the Tribunal however is whether the applicant meets the specific criteria under the Act pertaining to Schedule 3 and the exercise of the waiver.

28. The Tribunal considers the imminent arrival of the applicant and sponsor’s son and the pre and postnatal needs of the mother, on the evidence before it, represents a compelling reason to waive the Schedule 3 requirements. The Tribunal furthermore is of the view that the best interests of the sponsor in her current fragile emotional situation are to remain in Australia with her son and her husband, the applicant. The Tribunal is satisfied that, cumulatively, compelling reasons exist in this particular matter.

29. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

30. Given the findings 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.

    DECISION

31. 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

    Justin Owen
    Senior 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.