SONI (Migration)

[2019] AATA 2678

SONI (Migration) [2019] AATA 2678 (27 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs SHEINY SONI

CASE NUMBER:  1708018

HOME AFFAIRS REFERENCE(S):  BCC2016/4003158

MEMBER:Denis Dragovic

DATE:27 May 2019

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) visa:

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

Statement made on 27 May 2019 at 10:06am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – consequence of separation – credible witnesses – emotional and personal challenges not compelling reasons – fear of harm based on relationship – inter-caste marriage – different religions – independent country information – decision under review remitted

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

CASES
Babicci v MIMIA (2005) 141 FCR 285
Monakova v MIMA [2006] FMCA 849
MXYPZ 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 made by a delegate of the Minister for Immigration and Border Protection 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 28 November 2016 on the basis of her relationship with her sponsor. 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). 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)(d)(ii). The applicant claimed that there were compelling reasons including that her husband, the sponsor, would face hardship, the applicant’s medical concerns would make return to India difficult and that they continued to support each other emotionally and their relationship is strengthened when the couple are physically co-located. The delegate decided that there were no compelling reasons and therefore did not waive the requirement to satisfy Schedule 3.

4. The applicant appeared before the Tribunal on 20 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from her husband, her brother-in-law and the brother-in-law’s friend.

5. The applicant was represented in relation to the review by her 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. 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.

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

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: cl.820.211(2)(d).

   Criterion 3001

9. 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.

10. The Tribunal finds that in this case the meaning of ‘relevant day’ is found within subclause 3001(2)(c) of Schedule 3, namely the last day when the applicant held a substantive visa.

11. The applicant’s last held substantive visa was a TU-573 student visa which ended 16 August 2016 whereas the applicant applied for the partner visa currently under consideration on 28 November 2016. As such the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day.

12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. To meet the requirements of subclause 802.211(2)(d)(ii) you must satisfy each of Schedule 3 Criteria 3001, 3003 and 3004. As the applicant fails to meet criterion 3001 I am not required to assess against the remaining Schedule 3 criteria.

13. 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.

    Compelling reasons

14. 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.

15. The applicant travelled to Australia in 25 February 2013 to study a Masters in Professional Accounting at the University of Queensland. She didn’t complete the masters degree but continued studying throughout the two year period. She then transferred to social work but after being placed in a work role she realized that it wasn’t her preferred career choice. By the end of 2015 or early 2016, she couldn’t recall exactly, she stopped studying. During this period she continued to live in Brisbane. During a visit to Melbourne she met her now husband in December 2015, they arranged to spend time together in April 2016 and then she moved to Melbourne. The applicant and her husband were married on the 7 November 2016. The applicant’s substantive study visa ended on the 16 August 2016. On the 15 August she applied for a new TU-500 visa and was granted a bridging visa with work and study rights. While on the bridging visa the applicant applied for her partner visa on 28 November 2016.

16. The applicant and her husband explained that they had mistakenly assumed that being legal meant that they could apply for the visa and did not understand that being on a bridging visa did not allow them to apply for an on-shore partner visa.

17. I asked about the consequence to their relationship if the applicant was to depart Australia and apply off-shore. The applicant said that their bond and relationship will be affected and that they need each other’s support. She said that their plans were already disturbed because of the rejection of the visa and they would face further delays in such things as raising a family. She added that she is supporting him and he will be affected in addition to the emotional hurt. The applicant’s husband said that he was due to commence studies in 2017 before he met the applicant. Once they met they started making plans for a future together but they realized that they couldn’t both study at the same time as his family was unwilling to support both of them for the reason that their marriage was of different religions, he being a Catholic and she a Hindu.

18. By deciding to marry they went against his parents’ will. The parents didn’t cut him off or disown him but inferred that it was his own decision and that he would have to stand on his own two feet. That led to the need that one of them gives up studying and instead starts working. The decision was that the applicant would work while he pursued his studies so that he could take a further step in his career. If she was to study they would need to pay fees while his studies only require HECS. For this reason the applicant’s plans changed, the reason for her studies in Australia were supplanted because she met him and wanted to have a life here.

19. The applicant has had in the past a health condition. In 2012 she began having health issues with symptoms of paralysis in her arm and leg. At the time she was still living in India and sought medical treatment in an Indian hospital in June 2012. The applicant explained that she had surgery from the neck to the lower head which removed some air spaces.

20. In 2015 the ailment became severe again and so she travelled back to India for treatment. Since then she said that she feels okay although sometimes she still feels numbness and pain. I asked if she would seek treatment in India if she was living in India to which she responded that she would. Considering that she had sought treatment in India in the past I accept this statement.

21. The applicant and her husband provided information about how being separated would impact the husband. He is currently studying a Masters in Biotechnology having nearly completed his first year. He explained that their relationship is well and truly established and as such separation would cause emotional distress and disrupting the way they have been living. He expressed his concerns about how he would cope with upcoming exams and having to start a research project without her presence and support. He described having undertaken a research project in 2017 and how he struggled because of the visa problems then. To date he has been supported by his sister financially. He fears the life style change as his wife does most of the cooking and housework.  

22. The husband noted that as a result of what he referred to as an inter-caste relationship it could cause great problems for his wife, the applicant. He said that his in-laws are very supportive of the relationship but the community may not be. The applicant explained that she is from Haryana where there are honour killings for reasons of interfaith marriages. She said that her parents are okay with the marriage while she remained in Australia. But she fears that other people will realize that she married a Catholic. The applicants stated that neither has converted. She explained that she is originally from a small town and believes that she will not be accepted, that her uncle and aunty will harass her and her parents. They said that some of her extended family members are orthodox and very devout, they don’t know what is happening in the world and remain very traditional in their views. She claimed that they believe that marriage has to be within a caste. I asked why her parents wouldn’t be strong enough to tell them to stop interfering to which she responded that all matters are community matters and not individual matters. The applicant said that if she was to go back to India she would face being forced to get married with someone in the caste. She was not sure if he would be able to visit her because of safety concerns arising from their mixed faith marriage.

23. The husband said that their relationship would survive even if they were separated however it would mean that they would suffer a lot as both are thirty-two years of age and he was concerned about his wife’s biological clock. He emphasized that he needs to finish his studies so that he can support his family when they have kids. During the time apart he would have to go to India or she come to Australia but they have debts to think about. They were concerned that their life goals were being jeopardized. The applicant simply stated that she will try her best to maintain her relationship.

24. The applicant’s brother-in-law gave evidence to the tribunal. He said that he has known the applicant for three years. He emphasized that they didn’t know the process for the partner visas. He claimed that if she goes to India they will fall behind in their relationship by 3-4 years. He agreed that the area where the applicant comes from is a traditional area. He said that he could not comment on how the community would react as he has been in Australia for 15 years and doesn’t know what it’s like there now, though, he believes that she will certainly face harsh words from people. He said that she may not be able to get a job because of her marriage and may find it hard to adjust in society because of the gossip. He added that his younger sister committed suicide because she was in a relationship with someone of a different religion.

25. The other witness vouched for them being a ‘nice couple’. He is from the same area as the applicant and affirmed that it is a traditional society and that they take inter-caste marriages seriously. Furthermore, society might cause some trouble to her for being there without her partner but if they were together they could overcome the challenges. I put to him that she would be living with her parents. He said that the parents will face challenges such as being asked questions about the husband’s whereabouts, why she isn’t going back to him and over a longer period of time the questions that will be raised will infer that they are separated and this will cause havoc as it affects their image in society.

26. The representative claimed that her fears of returning to India due to their mixed marriage were a reason for not applying off-shore. The husband said that they didn’t even think about it because they didn’t realize the legalities associated with applications. When he submitted information he was focused on the impact they would face here rather than the off-shore aspect. The applicant said that she didn’t think about applying from India because of the reasons discussed earlier, namely her fears, along with the fact that she couldn’t support him from India. She said that she was even scared to go back to India for her sister’s wedding fearing people’s views about her relationship. She said that her parents had not received any physical threats but there is the ever present risk of isolation from society.

27. The applicant throughout the hearing emphasized the importance she places upon her own independence.

28. I found the applicants to be credible witnesses and so accept their evidence as fact.

    Consideration

29. The applicants have submitted several grounds for consideration as compelling reasons including the impact upon their relationship, limiting the husband’s ability to study, the impact upon the applicant’s independence and safety concerns of returning to India and applying for an off-shore visa.

30. Based upon the evidence submitted I accept the applicant’s claims of being in a relationship but as discussed at the hearing that the existence of a spouse or de facto relationship is not in of itself a compelling reason but may be depending upon the specific circumstances that the couple would face. Those specific circumstances were discussed at the hearing and are noted above. In considering them I acknowledge that the applicants will face emotional hardship and personal challenges. The couple are clearly committed to each other and as noted by both, their relationship will survive separation. Being apart will create emotional difficulties in ways that could strengthen their bond or tear away at it. How this plays out is a reflection of their commitment to each other. The husband will have to consider alternative approaches to managing his affairs in the absence of his wife, possibly including moving to more affordable accommodation. He will have to balance studies with managing his life in a way more independently than he has in the recent past. The applicant may not be able to fulfil her desire to be as independent as she would like while living abroad and waiting for an off-shore visa, constrained by tradition and living with her family. Together they may have to wait until they can start a family but being thirty-two years of age presents no reason to believe that such a circumstance limits them having children in the future. All of these factors may test their relationship. They will face emotional and personal challenges which will present difficulties and be disruptive to their future aspirations as a married couple but these circumstances are not compelling such that I am satisfied that Schedule 3 criteria should not be applied.

31. I have also considered the applicant’s health condition. She has sought treatment in India twice. When I asked whether she would seek treatment in India again if she was living there she said that she would. The medical treatment she received according to the applicant reduced the negative effects of her condition. Because she could seek treatment in India and because the condition is not degenerative, having stabilized since her treatment I find that her health is not a compelling reason such that Schedule 3 criteria should not be applied.

32. The issue of the applicant’s claims of fearing returning to India require detailed consideration. The applicant claimed that she did not want to apply off-shore because of the harm she could possibly face. She claimed that her presence could lead to her isolation from the community, it may see her being married off to another man of her own caste, though, one of the witnesses suggested that since she is already married the community would not take such action. She feared that was her husband to visit he could be harmed. In considering these claims I first note the findings of Phipps FM in Monakova v Minister for Immigration & Anor [2006] FMCA849:

    27. The purpose of criteria 3001, 3003 and 3004 is clear.  They set out criteria which, if satisfied, permit a person to make an application for a spouse visa in Australia who, otherwise, would have to make the application from outside Australia.  Their purpose is not to permit a person to remain in Australia.

    28. The "compelling reasons for not applying those criteria" must be reasons which are relevant to the purpose of the criteria.  They must be relevant to the purpose of permitting the person to make an application for a spouse visa in Australia.  To take into account a consideration which is not relevant to the purpose is to take into account an irrelevant consideration.

33. The question is what constitutes relevant to the purpose of the criteria. The criteria that are required to be met are set within cl.820.211(2)(d)(ii), namely 3001, 3003 and 3004, which in turn constitutes a criteria to be satisfied at the time of application for a partner visa. As such the reasons which are relevant to the purpose of the criteria should be relevant to the subclass 820 partner visa. In Monakova the compelling reason considered by the Tribunal was the applicant’s other visa application which until resolved would have allowed her to stay in Australia with her husband. Phipps FM found that it was an irrelevant consideration for the reason that the Tribunal had found that by the Tribunal’s logic, ‘the only way the applicant can obtain a spouse visa is by leaving Australia and incurring the hardships which the Tribunal considered are compelling reasons for not requiring her to leave Australia to obtain the spouse visa.’ (Monakova at [30]). In this case the applicant has expressed fears that directly relate to their relationship including being married to someone else, being harmed (which entails with it a demand to end the relationship) and her husband being unable to visit. For this reason I now proceed to consider the matter in further detail.

34. As noted above compelling 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. Unlike the tests under s.36 of the Act there is no threshold of real chance or real risk and similarly of serious harm or significant harm. Instead, the circumstances need to move the decision maker to exercise their discretion. As such it is important to consider independent information which provides the context against which the nature of her claims can be assessed.

1. The Department of Foreign Affairs Country Information Report for India notes at [3.45]:

   According to local sources, violence associated with inter-religious or inter-caste marriage is more prevalent in Haryana, Uttar Pradesh and Rajasthan, especially if a Muslim man is involved or the man is from a lower caste than the woman. That said, sources observed that acceptance of marriages outside of castes or religion, or even of marriage partners not chosen by the family, depended heavily on individual family beliefs. Some families, particularly in urban areas, are more accepting, whereas others are extremely conservative and do not allow their children to choose spouses.

2. News reporting in 2017 from the applicant’s district in Haryana notes that since the 2014 local clan leadership councils’ approval to loosen restrictions on marriages there has been general support with limited dissent. The article states:

   Reiterating his earlier stand, Inder Singh said except for marriages in same village and neighbouring villages sharing borders, there is no social restriction in matrimonial alliances in the villages under the jurisdiction of the khap panchayat [these are quasi-judicial bodies that pronounce punishments based on age-old customs and traditions[1]].

   It’s up to the individuals or families whether they want to enter into matrimonial ties with families within the khap or not, if anybody wants to abide by the old customs, he is free to do so, he said.[2]

   [1] What is khap panchayat? India Today, 11 October 2012 accessed 21 May 2019

   [2] Satrol khap stands by its decision to relax norms for marriages, Tribune India, September 13 2017 accessed 21 May 2019.

3. Despite these moves a 2018 news report reviewing the situation and interviewing experts in the field found little change.

   “The brutal killings in the name of honor have been going on since decades due to feudal mindset and patriarchal social set-up. On one side, Haryana is grappling with skewed sex-ratio while on the other side, young girls are being killed in the name of honour. All this implies how the communities are still untouched to the process of social, psychological and legal political modernization and still pursue honour killings as an accepted and even prestigious socio-cultural tendency,” says Prof Satnam Singh Doel, Assistant Professor, Department of Political Science Department at Guru Nanak Dev University in Amritsar, who had conducted a study on honour killings in Haryana.

   According to Prof Satnam’s 2014 study,  74 per cent of the honour killings transpired only in the Jat dominated region including the districts of Sirsa, Fatehabad, Hisar, Bhiwani, Jind, Rohtak, Sonipat, Karnal, Panipat and Kaithal. There was occurrence of 23 percent incidents in the Yadav dominated region, while only 3 percent incidents of honour killings took place in the region with mixed population.[3]

   [3] Honour killing continues unabated in Haryana, The Pioneer 27 August 2018 accessed 22 May 2019

4. Additional information on honour killings was provided by the representative in a post hearing submission dated 24 May.

5. In summary, the country information paints a picture of rural areas in Haryana continuing to embrace traditional and at times violent approaches to marriage despite some shifts among local leaders. The applicant’s district, Hisar, is noted as being particularly vulnerable to honour killings within a state that is considered one of the worst throughout India for such actions. In other words, the applicant faces cultural circumstances that are hostile to her relationship and potentially deadly.

6. This review of the country information about the situation in Hisar district, Haryana state, is not a de facto protection review under s.36 of the Act. Instead, my task is to consider whether the reasons are compelling. Under these circumstances a refugee nexus is not required nor is there a need to meet a threshold of serious or significant harm. In addition, the context when considering compelling reasons involves a broader consideration than just the chance of being harmed. This is inevitable when it is a discretionary and personal test as expressed in the wording, ‘sufficiently convincing to move the decision-maker’. The broader context to consider in this case is that the couple are, on the face of the material provided to the Tribunal and evidence given at the hearing, in a relationship. Their fears of harm either to her while she awaits an off shore partner visa or to him if he was to visit appear justified and are grounded in independent evidence. The applicant has not returned to India since her marriage for fear of harm. A witness present at the hearing described his own sister, who comes from the same region, committing suicide under similar circumstances. Considering these findings collectively I find that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).

7. 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

8. 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) visa:

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

Denis Dragovic
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.