Singh (Migration)

[2016] AATA 4986

Singh (Migration) [2016] AATA 4986 (12 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bikramjit Singh

CASE NUMBER:  1606201

DIBP REFERENCE(S):  clf2011/143559 CLF2012/111797

MEMBER:Ian Garnham

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 September 2016 at 11:22 am (VIC time)

DATE OF WRITTEN RECORD:                25 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remit – compelling reasons – relationship with sponsor ended – non-compliance with work conditions – married outside religion – land taken away – duration of time in Australia – friends in Australia – lost social contact in home country – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 April 2014 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 September 2016 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

   Background:

3. This is an application for review of a decision of a delegate of the Minister for Immigration, made on 10 May 2014 to refuse to grant the application, Mr Bikramjit Singh, a partner temporary class UK visa under section 65 of the Migration Act. The applicant applied for the visa on 6 June 2012 on the basis of a relationship with his wife and sponsor, Ms Emily Connolly. At the time class UK contained only one subclass, subclass 820, and the criteria for the grant of the visa is set out in part 820 of schedule 2 to the Migration Regulations.

4. A copy of that schedule, in part, has been provided to Mr Singh this morning, and the focus for today’s hearing was discussed with him, and that being that the delegate refused to grant the visa on the basis that the visa applicant did not satisfy clause 820.211(2)(d)(ii) because he did not satisfy the schedule 3 criteria, and the reasons submitted to justify waiving the criteria were not compelling.

5. The applicant was represented in relation to the review by his registered migration agent, Mr Jesney Chugg, who also attended the tribunal hearing today.  At the hearing, in some detail, the tribunal went through the options available to an applicant with respect to satisfying clause 820.211, and it was agreed and determined that Mr Singh could only meet this clause by satisfying clause 820.211(2)(d)(ii) which is the matter that I now set out earlier. 

6. In addition, it was established that Mr Singh could not meet criterion 3001 because he last held a substantive visa on 11 August 2010 and this application was made on 6 June 2012, which is many more than the 28 days within which schedule 3001 may be satisfied.  This was all agreed at the beginning of the hearing.  Therefore a positive decision can only be made in Mr Singh’s favour remitting the matter if the tribunal determines that there are compelling reasons for not applying the schedule 3 criteria. 

   Policy and compliance with visa conditions:

7. The departmental policy in respect of the schedule 3 criteria was discussed, to a brief extent, throughout the hearing.  The tribunal takes this opportunity to point out, and as was advised to Mr Singh in the hearing, that these provisions, to provide compelling reasons to avoid applying the schedule 3 criteria, are not intended to give or be perceived to give an unfair advantage to persons who fail to comply with their visa conditions.  They are also not available for applicants to deliberately manipulate their circumstances to give rise to compelling reasons.  It is expected that if an applicant can leave Australia to make a partner visa application outside of Australia, the expectation of the legislation is that they should do so.

8. Nevertheless, the law requires that despite any behaviour of a visa applicant with respect to their visa conditions, that one considers the claimed compelling reasons of the applicant.  Therefore, turning to the compelling reasons in this case.

   Putative compelling reasons 

9. Initially, in the Department’s file and the Department’s decision (reasons) the applicant had argued in the past that compelling reasons for him not to return considered by the Department were that he had no substantive visa due to reasons beyond his control. This was discussed and considered during the hearing as well, and the Tribunal concluded that it is patently not true.  The applicant’s substantive visa ceased on 11 August 2010, and the option was available for the applicant to go home and he did not do so.  And, as I said, this date of application was 6 June 2012 on the basis of a relationship whereby he married on 23 June 2012.

10. It was also argued before the delegate (that separation would cause) emotional hardship to both himself and his sponsor, and also that the (parties) had a strong relationship.  These reasons have long since passed.  At today’s hearing and in the submissions it is conceded that the relationship has ended.  The applicant said today it has irretrievably ended, he claims it ended in June 2015 when he left the home of his wife, and, as I said, he does not believe that the relationship will be reconciled.  So those reasons are certainly not compelling reasons for the purpose of today’s hearing.

11. In addition, he argued at the time that he had complied with his visa conditions, this is also patently not true.  One of the applicant’s visa conditions were that he should not work since that date he was given a subclass 050 visa, which is 29 August 2011.  There is significant evidence in the file of the applicant having worked up to and including in 2014.  When the tribunal questioned him about this, he advised that he had ceased working when his rights were taken away from him to do so, and that he had been supported by friends since that time.  And once again, the tribunal finds that extremely unlikely that he has not worked for all of this period and been supported by friends, in particular when he has put forth information himself (in earlier submissions that refer to) work that the applicant has actually conducted (in this period).

12. Moving on to the previous hearing.  At the previous hearing it was argued that the relationship was five years old.  Once again this is not accurate, but even if it was four years old at best, the relationship has now ended, so even if that were to be considered a compelling reason, and the tribunal in no way says that it should be, the relationship has now ended.  Similarly, it was argued that the sponsor suffers from anxiety and for the same reasons the tribunal finds that that is not a compelling reason that is applicable to the current circumstances.

13. Prior to the hearing, and briefly at the hearing, it was argued that the sponsor suffers from an ice addiction, and this has led to family violence being committed against the applicant by the sponsor.  Once again, there is absolutely no evidence to support this.  In fact, the tribunal notes that by today’s evidence the applicant saying that the relationship ended in June 2015, given that the previous hearing was held in May 2015 and there was no mention of family violence or ice addiction, or even any issues, (at that stage).  The relationship was presented as a healthy and genuine and continuing one, without any problems, this (the problems in the relationship) to all have developed in one month the tribunal finds totally implausible and once again brings the credibility of the applicant into question.

14. Finally, at today’s hearing there were three other matters presented as current compelling reasons, and those were that the review applicant will be under threat due to marrying outside his religion.  The applicant is of the Sikh religion, and his wife is not of the Sikh religion, she is an Australian citizen, it is unknown what, if any, religion she follows, but it is certainly not the Sikh religion.  Secondly, that he will be under threat by his family, his uncles, who are brothers of his father who is deceased. The review applicant claims they previously owned family land in one-third parcels each, and since the father’s death the review applicant claims that his uncles, have taken possession of that land and have threatened to kill him if he returns to the land.  And thirdly, the applicant argued that he has lived here for eight years and all of his friends are here, he has lost social contact in India, and would have difficulty leaving his friendships in Australia.

15. The migration agent fleshed out reasons 1 and 2 with respect to the applicant marrying outside his religion, and also his land being taken from his family, and explained that this is a specific problem related to the Punjab region, or smaller villages in the Punjab region, and the persecution or the risk of harm to the applicant would come about through a combination of these two factors.  The applicant claims it would be by his uncles mobilising other village members with the information that he has married outside the Sikh religion, and therefore leading to his potential harm by these people for committing this practice.  And in addition, the land rights issue pervades here, and that the applicant would be under threat because of his own being an only child, his, if you like inheritance, his legal, if not legal certainly customary ownership of that land.

16. With respect to these reasons the tribunal has no information before it to support this as being true.  While the tribunal is cognisant and does understand that significant land disputes occur in the Punjab region and a lot of these are historical in content, he has got no reason or no evidence before us to support that these particular circumstances would apply in this applicant’s case.  Once again, this is recent information which, according to the applicant’s evidence today, would have been available for many years, and it has not been presented at any other previous opportunities to provide his compelling reasons.  In addition, due to the applicant’s credibility issues, the tribunal, with no evidence before it to support this as being true, does not feel (is not satisfied) that this represents a compelling reasons whereby schedule 3 criteria should be waived.

17. Finally, the third reason; that the applicant has lived here for eight years and all his friends are here is not a reason that powerfully drives the tribunal to think that the schedule 3 criteria should be waived.  Whilst the tribunal appreciates that the applicant may well have lost his social contacts in India, he is still in touch with his mother there, and his family there, and the applicant has had the option to go home.  This option has been available for him for many years.  Indeed, even if he had been in a genuine relationship with his wife and had gone home, as the law suggested he should have done, he would have long since put in an application, and if the relationship was genuine, as he claims, he would have long since obtained residency rights in Australia.

18. Therefore, and putting all the significant credibility issues aside with the applicant, none of the reasons provided in this case powerfully drive the tribunal to consider that the schedule 3 criteria should be waived in this case.  And indeed even the reasons put forward by the applicant indicate to the tribunal that they have been presented as and when necessary to seek to retain a residency in Australia, and therefore the tribunal is not satisfied that there are compelling reasons for not applying the schedule 3 criteria.  

19. Accordingly, the applicant does not meeting clause 820.211(2)(d)(ii) for the reasons I have stated here today.  He therefore does not satisfy the grant of the visa.  Therefore, the tribunal’s decision is to affirm the decision and not to grant the applicant a partner temporary class UK visa.

    END OF ORAL DECISION     [11.17 am]

    DECISION

20. The Tribunal affirms the decision under review.

    Ian Garnham
    Member