Applicant: Birend Singh IRT Reference: N94/01566 #number 4988 [1995] IRTA 4988 (3 March 1995)

The Applicant meets the criteria contained in clause 812.722 of the Migration (1993) Regulations, criteria commonly known as the threshold criteria. The substance of the application revolves around clause 812.723(6) in that the claim is that refusal to grant the entry permit would cause extreme hardship or irreparable prejudice to an Australian citizen.

The Applicant and the Nominator were married on 20 April 1994.

The Applicant and the Nominator gave evidence that they first met in June 1990. This first meeting occurred at the Hare Krishna Centre at North Sydney and according to the evidence of the Nominator, she made her acquaintance with Mr Singh and noticed that he was quite unhappy and that she attributed most of this to the fact that his first marriage had just been terminated. According to Mrs Singh, after that first meeting she started to look after the Applicant and he visited her every day at her house in Newtown. She was concerned that he was drinking too much and smoking and that he did not have a proper diet. She says that her care for him continued on this basis all the way through until August 1992 when her flatmate, who had been sharing her rent, moved out and then Mr Singh moved in. She says that they then lived together until their marriage in April 1994 from which time their relationship has been that of husband and wife.

According to the evidence of Mr Singh, he confirms that he met his present wife in June 1990 and that shortly thereafter he met her again in Newtown and then, following that, he visited her regularly at Newtown and their relationship was one where he knew that Mrs Singh cared for him and helped him with his problems.

He confirms that he moved into the same premises with Mrs Singh in August 1992 and that their relationship as man and wife only commenced after their marriage in April 1994.

To succeed in an application such as this, the Applicant must demonstrate that the relationship that is claimed existed as at 15 October 1990 and continues up to the date of this application. The basis of this application is that had the Applicant been required to leave Australia at any time during the period mentioned above, she would have suffered extreme hardship or irreparable prejudice.

That extreme hardship or irreparable prejudice would have been occasioned by the loss of her partner.

It is clear from the evidence that the relationship between these two people developed from one of friendship and care and culminated, in 1994, with their marriage. In the context of just looking at the reality of their present existence, there seems to be sufficient evidence to suggest that they do live as man and wife and that they could be considered as a genuine married couple.

However, the Tribunal has concentrated in its examination of this application, on the relationship as it was structured in October 1990. On the basis of the evidence of both the Applicant and the Nominator, the Tribunal has great difficulty in accepting the relationship as having been established by October 1990 to such an extent that Mrs Singh would have experienced extreme hardship or irreparable prejudice had Mr Singh been required to leave Australia. The version of events given by Mr Singh and Mrs Singh are quite different and the Tribunal does not accept that from the moment that they first met, that they spend so much time together and the relationship developed to such an extent that Mrs Singh would have suffered extreme hardship or irreparable prejudice in October 1990.

The Tribunal's view is that while they have a firm and committed relationship at this stage, they have been trying to convince both the Department and the Tribunal, that this relationship was of sufficient degree of development in October 1990 that they should have the benefit of these particular regulations.

On the basis of the evidence before the Tribunal, it would seem likely that Mr Singh is entitled to apply for residency on the basis of his marriage to Mrs Singh. However, in the context of this particular application, that matter has little relevance and the Tribunal's task is to determine its view of what the circumstances were in October 1990 and on the basis of the evidence provided by the Applicant and the Nominator, the Tribunal is not convinced that their relationship was of such a category that as at 15 October 1990, Mrs Singh would have suffered extreme hardship or irreparable prejudice if Mr Singh had been required to leave.

The Tribunal is of the view that Mr and Mrs Singh have pursued this application in order to try to obviate the need for Mr Singh to return to Fiji to apply for immigration in the usual way that is required for a spouse application. While this concern is understandable, it is not a matter which the Tribunal can take into account in determining this particular application which has criteria of a limited nature set out in the Regulations. The Tribunal has no discretion in relation to the application of those Regulations and in those circumstances, this application must be refused.

In coming to a decision in this matter, the Tribunal has taken into account all of the material contained in the Departmental file, the evidence given by Mr and Mrs Singh and the policy directions provided by the Minister for Immigration and Ethnic Affairs under the Migration Act.

The Tribunal affirms the decision not to grant Birend Singh a Class 812 December 1989 (permanent) entry permit.