Tour (Migration)

[2018] AATA 112

Tour (Migration) [2018] AATA 112 (12 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh Tour

CASE NUMBER:  1620784

DIBP REFERENCE(S):  BCC2016/2646642

MEMBER:Adrienne Millbank

DATE:12 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 12 January 2018 at 4:40pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Previous visa applications – Overstayed bridging visas – Applied for multiple partner visas – Did not have a substantive visa at the time of application – Sponsor had full knowledge the applicant was an unlawful non-citizen – Manipulated his circumstances to give rise to compelling reasons – Sponsor’s pregnancy – Close relationship with step-child

LEGISLATION

Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2 cl 820.211 Schedule 3 Criteria 3001, 3003, 3004

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
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 25 November 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 August 2016 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)(d)(ii) because he did not meet Schedule 3 criterion 3001.

4. The applicant appeared before the Tribunal on 3 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The Tribunal advised the applicant, pursuant to s.359AA of the Act, that it had information that would lead or could contribute to the decision under review being affirmed. It advised that this information was in the record of the Delegate’s decision, a copy of which was not provided to the Tribunal by the applicant; notes on the Departmental file regarding his Bridging E visa applications and grants following the cessation of his Student visa; the record of the Department’s decision made on 8 April 2016 not to grant the applicant [another] Visa; and the applicant’s application for review of the decision and subsequent withdrawal on 8 November 2016. The Tribunal advised the applicant that information contained in these documents was relevant because it could be interpreted as indicating that the applicant was prepared to mislead the Department and the Tribunal in order to remain in the country and achieve a migration outcome.

6. The Tribunal advised the applicant that it would be raising concerns and asking questions based on this information, and that when it did he could seek an adjournment and consult with his representative. The applicant indicated that he understood the Tribunal’s concerns. He acknowledged that he has not held a substantive visa since his Student visa expired on 3 November 2010. He acknowledged further that he was an unlawful non-citizen in this country for over four years. He indicated that he was aware of the implications of this in terms of the Schedule 3 criteria. He indicated that he understood and was prepared to answer questions arising from the Tribunal’s concerns. He did not seek an adjournment.

7. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by phone.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant was born in India in 1987. He first arrived in Australia on 1 September 2008 on a Student (subclass 572) visa, enrolled in a course in commercial cookery. His student visa ceased on 3 November 2010. He was granted a Bridging visa E, on departure grounds, on 4 November 2010. On 2 December 2010 he was granted a further Bridging visa E, and Condition 8511 was imposed for the second time: the applicant was required to present a valid ticket with a departure date no later than 8 January 2011. The applicant did not depart Australia.

10. The sponsor was born in Australia in 1989. She declared one previous marriage, to a husband she sponsored from Suva in 2008, which ended in divorce on 22 February 2015. She has a daughter, born in 2011, from this marriage.

11. The parties claim that they established contact through Facebook in June 2013, and first met face-to-face on 9 September 2013 when the sponsor travelled from her home in Bundaberg to Sydney, where the applicant was living and working as an unlawful non-citizen. Following this meeting the sponsor claims she separated from her first husband on 15 September 2013, the parties ‘dated online’, and made a decision on 13 October 2013 to enter into a long-term relationship. They claimed they spent some time together in Sydney; the sponsor returned to Bundaberg in May 2014 because of custody issues related to her daughter; and the applicant moved to Bundaberg to live with the sponsor after their marriage on 25 March 2015.

12. The applicant resided unlawfully in Australia from 17 December 2010 to 1 February 2015.  He lodged an application for [another] visa on 2 February 2015, which was refused on 8 April 2016. He appealed this decision to the Tribunal on 28 April 2016. A hearing scheduled for 16 November 2016 for the applicant to give evidence and present arguments was cancelled when the applicant withdrew his application on 8 November 2016.

13. While his application for review of his [other] visa refusal was still in train, the applicant lodged a Partner visa application. The first application, on 27 July 2016, was found to be invalid. He lodged this Partner visa application on 11 August 2016, and it was refused on 25 November 2016. He was granted a Bridging E visa on 19 August 2016 in association with this Partner visa application.

    Schedule 3 criteria

14. 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).

15. 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

16. 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.

17. As noted above, the applicant has not held a substantive visa since his Student visa expired on 3 November 2010. He was an unlawful non-citizen in this country for over four years, from 17 December 2010 to 1 February 2015.

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

    Compelling reasons

19. 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.

20. 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.

21. At the time of application the parties provided the following claims and arguments regarding compelling reasons for not applying the Schedule 3 criteria:

    • The parties are in a genuine [relationship].
    • The sponsor had a medical [condition]. The presence of her husband was required to assist her to cope.
    • The sponsor’s daughter has bonded with the applicant.
    • The sponsor shared custody of her daughter with her ex-husband, who has refused permission for his daughter to travel overseas.
    • The sponsor would find it difficult to pursue her law studies as a single parent.
    • It would be difficult for the sponsor to find a job in a foreign country.
    • It would be difficult for the applicant to find a job in India, as he has been living in Australia since 2008 and he no longer has the relevant skills or contacts.
    • The sponsor would find it difficult to do household chores by [herself].
    • The whole household would suffer if the application was not processed in Australia.

22. At the time of decision the parties presented the following claims and arguments:

    • The sponsor is pregnant, with an estimated delivery date of 11 March 2018. [Sentence deleted].
    • If required to go offshore to lodge his application the applicant would miss out on his child’s birth and early development milestones.
    • The sponsor suffers from [a medical condition] and the applicant has provided support by cooking meals for her. She has other health issues for which she has needed the applicant’s [support].
    • The sponsor cannot travel to India with young children because of her concerns for their health and education, and so the family would suffer separation. The applicant is a father-figure to his step-daughter, who would be adversely affected by his absence. The parties’ relationship would suffer from being long-distance.
    • The sponsor will complete her law studies in February 2018, but as a pregnant single mother, or as the single mother of two, she would find it difficult to undertake the legal practice work she has to complete before she can practice as a lawyer.
    • The applicant has, since obtaining work rights, obtained farm work around the Bundaberg region and contributed to household finances. The sponsor and her children would suffer financial hardship if the applicant leaves. The applicants’ parents in India are not sufficiently well-off to support the family in his absence.
    • The applicant has become used to the Australian lifestyle, his weekly wages and standard of living. He would find it difficult to obtain work in India because he no longer has the skills or connections, and could not support his family on the monthly pay he could expect to receive in India for the sort of work he has been doing in Australia since 2008.
    • The parties have no savings and could not afford to travel to India or any other country or pay the cost of another Partner visa application.
    • The applicant comes from a traditional Sikh family and the social opprobrium he would receive from his grandmother and possibly his father for marrying a Muslim Australian woman [would] make it uncomfortable for him to stay with his family for longer than a few weeks.

    Evidence and argument provided at hearing

23. At hearing, the applicant advised the Tribunal that the core of his claim to compelling reasons to waive the Schedule 3 criteria was the compulsion he felt as a husband and father to support and be with his wife, step-daughter and soon-to-be born child. He argued that he would be unable to fulfil his family responsibilities if required to leave the country and that this would distress him greatly. He argued further that his family could not accompany or even visit him if he was to return to India for the year or two it could take to process his Partner visa application, because of his wife’s studies, his step-daughter’s custody arrangements and his wife’s concerns regarding travel to India.

24. The Tribunal asked the applicant to explain the timeline of his relationship with the sponsor and why he claimed when he lodged [another] visa application that they had lived together in Sydney for a year before they married, while the sponsor made no such claim. The parties stated that the applicant had made a mistake. The Tribunal asked the sponsor to explain why she had declared, in a statutory declaration prepared for the Tribunal, that she was coerced into a loveless first marriage by her parents. The Tribunal asked the sponsor whether she had declared at the time she sponsored her first husband that the relationship was genuine and that she was not coerced into it. The sponsor responded that she was only 17 years old at the time and didn’t know what she was doing or signing.  She stated further that she had no idea why her parents chose the husband that they did for her, and that her first marriage was arranged between the families without her involvement. The Tribunal notes that the sponsor was born on 24 November 1989, and that she was in fact 18 years old when she sponsored her first husband to Australia.

25. [Paragraph deleted].

26. [Sentences deleted]. He stated that the real reason he was unable to return to India after his Student visa expired was that he had failed to achieve his objective for coming to Australia, namely, to obtain well-paying work. He explained that he had borrowed money from his family for his enrolment tuition, for a certificate-level course in commercial cookery, but was unable to repay it. He explained further that he was young and naïve, and that when he could not afford his ongoing tuition fees he found work sufficient to sustain himself in a seafood shop and through other casual employment in Sydney. He stated further that while he had felt unable to return to India as a failure, his family were now coming to respect him as a responsible and settled family man.

27. [Paragraph deleted].

28. The sponsor acknowledged to the Tribunal that she knew when she entered into a relationship with the applicant that he was living and working in the country illegally. She stated that she understood the implications of this. The Tribunal asked the sponsor why she chose to have a child at a time when she knew that the applicant did not have a substantive visa, when his residence in the country was uncertain and likely to be disrupted through a requirement to lodge his Partner visa application offshore. The sponsor again acknowledged that she was aware of this, but stated that she wanted a second child and had not been prepared to put her plans on hold because of visa requirements. She stated that there was a gap of seven years between her children and that this was long enough. The applicant stated that his step-daughter had expressed a desire for a young brother or sister to play with.

29. The parties’ representative, who attended the hearing by phone, submitted further that the current processing time for a Partner visa lodged in India is about 24 months; that the parties could suffer hostility from the wider community in Punjab because of their inter-faith marriage; that the applicant’s capacity to earn money in India was limited; and that the mortality rate for young children in India is higher than in Australia and the parties’ Australian citizen children should not be put at risk.

30. The Tribunal asked the parties whether they had any intention of travelling to India in the future as a family, to spend time with the applicant’s family. They responded that they did, but stated that any visit to India as a family would be for a brief period of some weeks only, and would be at a time of their choosing.

    Findings and reasons

31. The Tribunal found the sponsor vague, evasive and unconvincing when responding to questions about her first Partner sponsorship, [and] when claiming that there was no-one in Australia with whom she could leave her daughter for a week or two, over the next two years, while she and her younger child visited the applicant in India. The Tribunal found the applicant to be vague and unconvincing when attributing his illegal stay in Australia and lodgement of [another] visa application to youthful naivety and ill-informed advice, and when attributing [to] his desire to provide his step-daughter with a sibling. The Tribunal finds that the parties decided to conceive a child when they did for the purpose of securing a migration outcome. The Tribunal notes that the stated policy intention of the Schedule 3 waiver provisions is not to facilitate a person who fails to comply with his visa conditions; who deliberately manipulates his circumstances to give rise to compelling reasons; or who can leave Australia and apply for a Partner visa outside Australia. The Tribunal acknowledges that it is not bound by statements of government policy. The Tribunal finds, however, that in this case there are not compelling reasons to not apply the Schedule 3 criteria.

32. The sponsor chose to conceive a child in the full knowledge that the applicant was not the holder of a substantive visa and could be required to leave the country to lodge his application offshore. The Tribunal therefore does not accept that her pregnancy is a compelling reason to waive the Schedule 3 criteria. The sponsor provided evidence that she has been in receipt of Centrelink benefits. Because the sponsor has recourse to government benefits, the Tribunal does not accept that the family would suffer financially without the applicant’s farm-work earnings to an extent such as to constitute a compelling reason to waive the criteria.

33. The Tribunal does not accept that the sponsor’s concern that her relationship with the applicant would suffer through a separation of up to two years is a compelling reason. The sponsor entered into a relationship with the applicant in the full knowledge that he had no right of residence.

34. The Tribunal accepts that the applicant will miss out on milestones on his first child’s earliest development milestones, but because the applicant chose to conceive an Australian citizen child at a time when he had no right of residence, the Tribunal does not accept that this is a compelling reason to waive the criteria. The Tribunal does not accept that the applicant’s child will suffer, as a baby, from his temporary absence to an extent such as to be a compelling reason to waive the criteria. The Tribunal notes that the sponsor herself considers any such possible adverse effects on the child outweighed by possible health risks incurred by taking the child to visit his father and his father’s family in India.

35. The Tribunal accepts that the applicant has become acclimatised to the Australian way of life and income levels while living and working in the country without a substantive visa, but does not accept that this constitutes a compelling reason to waive the criteria.  The Tribunal does not find the argument that the applicant would find it difficult to obtain work in India at a rate of pay comparable to what he has become used to in Australia to be compelling. The Tribunal further does not accept the parties’ claimed inability to afford the travel and further visa costs associated with offshore lodgement is a compelling reason. Such financial challenges are common to Partner visa applicants. The Tribunal notes that the applicant has had over a year, since the refusal of the Partner visa application on 25 November 2016, to save money for these foreseeable costs. The Tribunal further notes that the sponsor stated at hearing that she intends to start working as a lawyer six months after her child is born, and that she acknowledged at hearing that when she does, she could pay the visa costs.

1. The Tribunal accepts that the applicant has provided support for the sponsor during her pregnancy and her law studies. The Tribunal accepts as well that the applicant has provided support to the sponsor to manage her health conditions, but does not accept, on the evidence provided, that these health conditions have been such as to require his constant care and attention. The Tribunal does not accept that the sponsor is unable to do housework by herself because [of her medical condition]. No medical evidence was provided that the sponsor has [certain symptoms] that cannot be managed through [treatment] and requires the ongoing presence of the applicant.

2. The sponsor presented at hearing as a competent and articulate person capable of supporting and caring for herself and her children. The Tribunal notes that she pursued her law studies through periods of personal difficulty during and following the breakdown of her first marriage. The Tribunal accepts that she might find it difficult, without the applicant’s presence, to complete her legal practice requirements, but does not accept that she would find this difficulty insurmountable. The Tribunal notes that the applicant exaggerated the facts of the development of the parties’ relationship, and the sponsor exaggerated the facts of her previous marriage and sponsorship, and finds that the parties were prepared to similarly exaggerate the consequences of the offshore visa application requirement. The Tribunal does not accept that ‘the whole household would suffer’ to an extent such as to be a compelling reason to waive the Section 3 criteria.

3. The Tribunal notes further that the sponsor’s mother lives near the sponsor, in Bundaberg; that the parties stated at hearing that the sponsor’s mother is supportive of their relationship; and that the sponsor has other family members in Australia including siblings who live on the Gold Coast. The applicant is not the sponsor’s only source of support, and the Tribunal is not satisfied that the support provided by the applicant to the sponsor is a compelling reason to waive the criteria. 

4. The Tribunal accepts that the applicant feels a personal need to care for and support his family. While the Tribunal finds this understandable, it does not find it a compelling reason to waive the criteria.

5. The Tribunal accepts that the applicant has a caring relationship with his step-daughter, but does not accept that depriving her of him as a father-figure for a period of up to two years would affect her adversely to an extent such as to be a compelling reason. The Tribunal notes that the applicant’s step-daughter’s biological father lives in Bundaberg, has shared custody of his daughter and cares for her in his own home every weekend, from Friday evening to Sunday evening.

6. The Tribunal does not accept that the applicant’s grandmother’s disapproval of him for marrying outside the Sikh religion is a compelling reason to waive the criteria. The Tribunal notes that the applicant stated at hearing that while he had been reluctant to return to India as a self-perceived failure, his family were coming to respect him as a responsible and settled family man. The Tribunal therefore finds that the applicant’s family is likely to support his Partner visa application.

7. The Tribunal does not accept, on the evidence provided, the argument put by the parties’ agent that they would suffer hostility from the wider community in India, because of their inter-faith marriage, to an extent such as to constitute a compelling reason. Nor does the Tribunal accept the agent’s argument that India’s higher child mortality rate constitutes a compelling reason to waive the criteria. Information is available to the parties regarding immunisation and other preventive health measures to safeguard their children. The Tribunal notes in any event that the sponsor has the option of remaining in Australia, with her children, while the application is processed.

8. Having considered the evidence and arguments and all the circumstances of the parties cumulatively the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

9. The applicant has made no claims against, and his circumstances are such that he does not meet, alternative criteria in cl.820.211(3) – (9) (people entering Australia to marry and who have subsequently married, and death, family violence, child exceptions).

10. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Adrienne Millbank
    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.