Singh (Migration)

[2017] AATA 2053

Singh (Migration) [2017] AATA 2053 (20 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajinder Singh

CASE NUMBER:  1703284

DIBP REFERENCE(S):  CLF2015/28301 CLF2015/29153

MEMBER:Susan Trotter

DATE:20 October 2017

PLACE OF DECISION:  Brisbane

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) of Schedule 2 to the Regulations.

Statement made on 20 October 2017 at 2:43pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Federal Circuit Court remittal – Long-standing relationship – Financial commitments

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, r1.20J, cl 820.211

CASES
Babicci v MIMIA [2005] FCAFC 77
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
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 4 July 2014 to refuse to grant the applicant, Mr Rajinder 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 9 May 2012 on the basis of his relationship with his sponsor, Ms Deeba Ajez. 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).

3. The delegate refused to grant the visa on the basis that Mr Singh did not satisfy cl.820.211(2)(d) and cl.820.221 of the Regulations, because the delegate was not satisfied that Mr Singh met the required Schedule 3 criteria in the Regulations, nor that there were compelling reasons to waive the Schedule 3 requirements. On 29 April 2016, this Tribunal differently constituted, affirmed that decision.

4. Mr Singh subsequently appealed to the Federal Circuit Court. The Federal Circuit Court remitted the matter to the Tribunal for reconsideration.

5. Mr Singh appeared before the Tribunal on 24 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ajez.

6. Mr Singh was represented in relation to the review by his registered migration agent.

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

   ISSUES

8. 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: clause 820.211(2)(d). These criteria are set out in the attachment to this decision.

9. It is not in dispute that Mr Singh last held a substantive visa, a student visa, on 12 May 2010. Departmental records show that Mr Singh did not enter Australia as the holder of a Subclass 995 visa or special purpose visa.

10. 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).

11. Criterion 3003 of Schedule 3 applies in a limited number of cases where the applicant has not been the holder of a substantive visa on or after 1 September 1994, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date.

12. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, and that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any entry permits and subsequent bridging visa or the last of any substantive visa and bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to satisfy the criteria or be granted the visa on the day he or she last held a substantive or criminal justice visa or last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

13. 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] FCAFC 77 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 (Waensila).

14. According to the Macquarie Dictionary ‘compel’ or ‘compelling’ means ‘to force or drive, especially to a course of action’. In the context of r.1.20J of the Regulations, the Full Court of the Federal Court in Babicci v MIMIA (2005) 141 FCR 285 at [24] noted that:

    there are… shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.

15. Although these comments were made in the context of the term ‘compelling circumstances’ in regulation 1.20J, the Tribunal considers them relevant to the issue presently before it.

16. The Tribunal is, of course, obliged to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence as a whole whether there are compelling circumstances: MZYPZ v MIAC [2012] FCA 478 (Bromberg J, 9 May 2012) at [12].

17. It follows that the issues for the Tribunal to determine are:

    (a)  Does Mr Singh satisfy the Schedule 3 criteria?; and, if not,

    (b)  Are there compelling reasons for not applying those criteria?

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. Mr Singh’s representative provided written submissions to the Tribunal submitting that the Schedule 3 criteria be waived, that is that the Schedule 3 criteria should not apply, for the following reasons:

    (a)  Mr Singh has always been a lawful non-citizen and always held a valid bridging visa.

    (b)  Mr Singh has been married for 5.5 years to an Australian citizen.

    (c)  The Explanatory Statement for the Regulations identifies a two year reason as a compelling reason.

    (d)  Mr Singh’s and Ms Ajez’ house is technically in the name of Ms Ajez but is their matrimonial home and the couple are dependent on Mr Singh’s income to meet the loan repayments and other living expenses.

    (e)  There is an obvious emotional hardship in two persons in a long-term married relationship now being separated for about 18 months or more should Mr Singh go offshore and apply for a Subclass 309 visa.

    (f)    Given Mr Singh’s and Ms Ajez’ financial obligations it would be impossible for Ms Ajez to leave her job and go to India.

    (g)  It would be similarly impossible for Ms Ajez to save money and go to India for her annual holidays to be with Mr Singh for a few weeks as all her spare money would be going to the mortgage repayments and any other expenses.

    (h)  The Immigration Department rarely grants visitor visas to persons who have applied for a spouse visa. Hence Mr Singh and Ms Ajez would be separated for 18 months or more should the waiver not be granted.

    (i)    The delay through any grant of a Subclass 309 visa would also stunt Mr Singh’s permanent employment prospects in Australia.

    (j)    Mr Singh’s diminished employment prospects and therefore earning less income has a consequential adverse impact on the life and wellbeing of his Australian citizen wife.

    Issue 1 – Does Mr Singh satisfy the Schedule 3 criteria?

19. As already noted, Mr Singh last held a substantive visa on 12 May 2010. This visa application was lodged on 9 May 2012. The Tribunal therefore finds that Mr Singh’s visa application was made more than 28 days after the relevant day, 12 May 2010. Criterion 3001 is not met and it is unnecessary for the Tribunal to then consider criteria 3003 and 3004. Given criterion 3001 was not met, Mr Singh does not satisfy the Schedule 3.

    Issue 2 - Are there compelling reasons for not applying the Schedule 3 criteria?

20. The Tribunal notes that Explanatory Statement to Statutory Rules 1996, No 75 introducing the Schedule 3 waiver provisions, gives the example of a long standing relationship of at least two years duration as a possible compelling reason which may justify the waiver of the schedule 3 criteria. It states:

    where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived” (tribunal’s emphasis).

21. The Tribunal is mindful that the Explanatory Statement provides guidance only and is neither binding nor exhaustive. All the circumstances of the case must be taken into account.

22. The Tribunal does not consider that the existence of a genuine relationship to be a compelling reason for the waiver. Being in a spouse or de facto relationship is a requirement under cl.820.211(2)(a). The Tribunal does not accept that simply meeting other visa criteria of itself gives rise to compelling reasons to not apply the Schedule 3 criteria.

23. As regards the length the relationship, the Tribunal accepts that Mr Singh and Ms Ajez have known each other for nearly eight years, have been in a relationship for nearly seven years, have been living together for nearly six years and have been married for over five and a half years. The Tribunal accepts that the length of a relationship is one of the factors that may be taken into account in considering whether compelling reasons exist to exercise the discretionary waiver. However, the Tribunal does not consider that a long-standing relationship of itself is sufficient to amount to compelling reasons. The Explanatory Memorandum suggests that where there is a long-standing relationship, waiver may be justified if hardship could result.

24. As regards any emotional hardship that might result from a separation in these circumstances, no reason was advanced in this case as to why contact, and emotional support, could not be maintained, via telephone calls, Skype, letters or otherwise, during an absence of Mr Singh for visa purposes. The Tribunal accepts that may not be desirable, however absent any other circumstances the Tribunal does not consider a temporary separation, (where contact can be maintained), amounts to emotional hardship.

25. However, the Tribunal accepts the evidence that Ms Ajez has a number of financial commitments/liabilities, including a mortgage, which financial commitments she would not be able to cover without Mr Singh’s contribution. The Tribunal further notes, and accepts, the evidence before it, that Mr Singh and Ms Ajez have wished to purchase their own home for many years but had deferred that action because of the uncertainty of Mr Singh’s visa status. However, given rising house prices and their increasing age, and with Mr Singh’s visa status still remaining uncertain, they went ahead with the house and land purchase. The Tribunal accepts that Ms Ajez’ budget for financial commitments on her income alone is very tight and does not take into account any extra expenses. Further, the Tribunal is satisfied that with increased mortgage payments from October 2017, Ms Ajez is unable to meet the financial commitments without Mr Singh’s assistance. Furthermore, not waiving the Schedule 3 criteria would mean further unaccounted for expense.

26. The Tribunal considers it not unreasonable to expect couples and families to modify their lifestyle, living standards and arrangements for a temporary period of separation for visa or other reasons. The decision to separate, and related issues, is common to all persons in a genuine spousal relationship in such circumstances and will often result in a financial impact. However, the Tribunal accepts that Mr Singh’s and Ms Ajez’ financial commitments go beyond usual living expenses, and include significant mortgage commitments.

27. The Tribunal also notes that Mr Singh’s presence in Australia has at all times been lawful and is satisfied on the evidence before it that he has not deliberately manipulated his circumstances to give rise to compelling reasons. Rather, as is not an uncommon circumstance, he met Ms Ajez whilst studying in Australia and their relationship developed and has continued over many years. Mr Singh applied for this visa in May 2012, over five years ago, and for many years he and Ms Ajez put their plans to buy a house together on hold because of Mr Singh’s visa status uncertainty. Not unreasonable they reached a point where they did not consider that they could put off their plans for any longer and now have significant financial commitments.

    Conclusion

28. The Tribunal has concluded that Mr Singh’s and Ms Ajez’ long-term relationship of itself is not sufficient to amount to compelling reasons to waive the Schedule 3 criteria. However, having taken into account the long-standing relationship together with Mr Singh’s and Ms Ajez’ not insignificant financial commitments, which commitments the Tribunal accepts would not be able to be met by Ms Ajez in Mr Singh’s absence (even if only temporarily), the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria.

29. Accordingly, Mr Singh meets cl.820.211(2)(d)(ii).

    Other Matters

30. Whilst the Tribunal did canvass some evidence at hearing in relation to Mr Singh‘s and Ms Ajez’ relationship, as the delegate did not undertake a formal assessment of the relationship and made no findings as to whether Mr Singh and Ms Ajez are in a spousal or de facto relationship, as defined in the legislation, the Tribunal has refrained from making a finding in relation to this issue.

31. Given the findings above, the appropriate course is to remit the application for the visa for consideration of the remaining criteria for a Subclass 820 visa.

    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) of Schedule 2 to the Regulations.

    Susan Trotter
    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 Migration Review 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.