1700695 (Migration)

[2019] AATA 3133

1700695 (Migration) [2019] AATA 3133 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700695

DIBP REFERENCE:  OSF2016/039123

MEMBER:Rosa Gagliardi

DATE:20 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.213 of Schedule 2 to the Regulations; and

·cl.309.222 of Schedule 2 to the Regulations.

Statement made on 20 May 2019 at 2:31pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – sponsorship limitation – sponsor previously sponsored two people – less than five years passed since last sponsorship nomination – compelling reasons to approve sponsorship – mental health issues – sponsor heavily relies on applicant – significant hardship suffered if sponsorship not approved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20, Schedule 2, cls 309.213, 309.222

CASES
Babicci v MIMIA [2005] FCAFC 77

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 made by a delegate of the Minister for Immigration on 10 November 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 6 January 2016 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.309.213 because her sponsor, Ms [A] (spouse) is subject to a sponsorship limitation and therefore cannot satisfy r.1.20J(1)(a) because the applicant had exceed the number of persons she can sponsor to Australia.

4. The review applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Ms [B] well as from the applicant’s [niece].

5. The review 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

   SPONSORSHIP (cl.309.213)

   Are the sponsorship requirements met?

7. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

8. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.309.222. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and r.1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

9. The Tribunal has no adverse information before it relating to the identity and age of the sponsor.  Similarly, the evidence does not highlight any criminal activity by the sponsor.  On the evidence the Tribunal is satisfied that the applicant meets cl.309.213.

   cl.309.222

10. Regulation 1.20J requires that the Minister not approve the sponsorship of the applicant unless the Minister is satisfied that:

    (a)   not more than 1 other person has been granted a relevant permission as:
    (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship nomination; or
    (ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and

    (b)   if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) – not less than 5 years has passed since the date of making the application for that relevant permission.

11. In this case two other people have previously been granted a relevant permission as the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination.  Therefore the sponsor is affected by the sponsorship limitation set out in paragraph 1.20J(1)(a).  Subregulation 1.20J(2) provides that, despite subregulation (1), the Minister may approve the sponsorship of an application for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

12. The expression ‘compelling circumstances’ is not defined in the legislation.  Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine.  The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

13. Unlike other instances where compelling circumstances must be considered in the Regulations, in the context of r.1.20J those circumstances must affect the sponsor.  The legislative intention of this provision can be found in the Explanatory Statement which indicates that the Minister can approve sponsorships or nominations if ‘compelling circumstances’ exist.  These include, but are not limited to:

    ·The previous spouses, de facto partner or interdependent partner has died;

    ·The previous spouse, de facto partner or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support;

    ·The new relationship is long-standing; or

    ·There are dependent children of the new relationship.

14. Other considerations include:

    ·The nature of the hardship/detriment that would be suffered by the sponsor if the sponsorship were not approved; and

    ·The extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

15. The sponsor, Ms [A], has a history of unsuccessful relationships, including ones where her partners have been sponsored by her (excluding current partner) to Australia:

    ·She was first sponsored to Australia as she was married to an Australia citizen/permanent resident in [1999];

    ·She had [children] with her second husband; and

    ·She married her third husband in [2008].

16. The limitations are in place partly to ensure that a sponsor does not engage in sponsorships on a rolling basis particularly for the sole purpose of assisting other persons gain a migration outcome to Australia.  At hearing the Tribunal tested the applicant’s past sponsorships and the Tribunal was satisfied that this was not the case for the sponsor.  As she stated at hearing, she had always wanted to have a successful marriage and family and her past relationships had caused her great hardship from which she continued to suffer.  The Tribunal did not gain the impression that any of the relationships involving sponsorships were for the sole purpose of assisting persons gain a migration outcome to Australia.

17. The Tribunal found that the applicant was credible and at hearing was in great distress.  In speaking to the applicant overseas the Tribunal was satisfied that he is a major source of comfort to the sponsor.  The Tribunal found the parties’ evidence consistent and it was evident that they both knew a great deal about each other and communicated often despite their geographical separation.  The sponsor is strongly of the view that the applicant is the one person who is assisting her realise her vision of having a stable and happy marriage.  From this perspective the Tribunal considers the relationship genuine although this is a matter for the Department at first instance.

18. The sponsor has provided a good deal of persuasive and indeed compelling medical evidence confirming her testimony at hearing that she suffers from serious mental health conditions due to traumatic events involving her past relationships and that the applicant has assisted to stabilise her condition. 

19. An accredited [Health Professional], Ms [C], has prepared a statutory declaration signed on 10 May 2019, detailing the instances of family violence experienced by the sponsor at the hands of her first husband and that the sponsor was granted permanent residency without her first husband’s sponsorship based on the family violence she experienced during that relationship.   Ms [C] has also written that the sponsor stated that “without the applicant’s ongoing emotional support she wold not be able to enguage (sic) as effectively with the children as she currently managed”. 

20. In terms of her second marriage she had [children] with her then husband but he became an alcoholic and gambled and abandoned her and the children.  As confirmed by Ms [C], the sponsor fell into a deep depression and she attempted suicide shortly after this.  On finding out that her then husband was having a liaison with a close friend, the sponsor found that “The betrayal left a further scar in my heart and has caused on-going damage to my mental health…I didn’t know who to trust, I didn’t have anyone to confide in”. 

21. The sponsor then married her third husband.  The sponsor had high hopes that this marriage would provide her and her children with the support her family needed.  However, the marriage started to disintegrate after the sponsor discovered she had [a medical condition] in August 2012.  Her husband grew distant and withheld affection and did nothing to support her during this difficult time.  The sponsor has written in her statutory declaration, “Despite the painful [treatment] I had to endure, [Mr D] was never there for me and he refused to return”.  The sponsor at this point was feeling so low both physically and mentally that she had to sponsor her [sibling] from Vietnam to come to Australia to look after her (evidence sighted).  The sponsor has written in her statutory declaration, “[My sibling] provided me with love, comfort and attention.  If [my sibling] didn’t arrive in time, I believe I would have attempted to take my life once more.  I remember not wanting to live or continue living. Looking back in hindsight, I am very glad my [daughter] was so responsible.  She took charge and looked after my [other children] when I wept and mourn about my fate…My children and I, we were on our own in [City 1], without any support until my [sibling] arrived in February 2013”.

22. The seriousness of the sponsor’s condition is also confirmed in a report by Consultant Psychiatrist, Dr [E], dated 4 September 2014.  Other medical information shows that for a period she was being treated with medication for her depressive illness.  Dr [E] concluded that the sponsor is “very impaired by her depressive illness”. 

23. Ms [C] also wrote of the sponsor, “Ms [A] has in the past attempted self-harm when under significant personal stress…At the time of these suicide attempts Ms [A]’s survival would seem to be a result of [details deleted], rather than any act by her to seek help for her situation.  The writer therefore considers Ms [A]’s previous self-harm attempts to be serious acts by her to end her emotional suffering.  Consequently, the writer would be highly concerned for Ms [A]’s safety should her relationship with Mr [D], her husband, come to an end that she had not sought”. 

24. The sponsor’s [illness] is now [improving] but Ms [C] has written in her statutory declaration that she was concerned that if the sponsor could not live with the applicant,

    
    

    “Ms [A]’s mental health may again deteriorate to a point at which she was at serious risk of significant self-harm”.  The Tribunal considers that the sponsor is so attached to the applicant that she would consider living in Vietnam with him and his children except that [a number ] of her children are still at school and is distressed at the thought of separating the sibling group, as some might seek to live with their father were she required to relocate.  She was hoping that the applicant would be prepared, therefore, to pursue a long-distant relationship [until] her [child] was old enough to live on [their] own.

25. The sponsor’s daughter, [Ms B], also gave convincing evidence at hearing that she was most concerned for her mother’s mental health if she were not able to live with the applicant who provided her mother with much needed support.  It appeared that [Ms B] was burdened with the care of her [siblings] as well as that of herself and her mother, and that since her mother’s suicide attempts she has lived in constant fear of losing her mother.  [Ms B] had in fact found her mother on her first suicide attempt.  [Ms B] spoke about the pain of not having a father figure and how the applicant provided stability to their family unit. 

26. It was evident at hearing that [Ms B]’s main preoccupation was her care for her siblings, but predominantly her mother, and that her own quality of life and health had also been compromised due to the serious nature of the responsibilities she carried.  Ms [C] wrote in her statutory declaration that if the applicant were able to live with the sponsor, [Ms B] would have a chance to carve out a life for herself and her mother’s dependency on her would be reduced.

27. The sponsor’s niece also expressed her concern for the sponsor and for [Ms B] who had been adversely affected by her mother’s condition.

28. The Tribunal considers that the circumstances faced by the sponsor are not only out of the ordinary, but are compelling, not least because the applicant appears to act as a stabilising influence in her life and the lives of her family members.  The Tribunal considers that were the sponsor to move overseas to live with the applicant she may also experience serious hardship in obtaining the psychological care in Vietnam she has been able to obtain in Australia, as Ms [C] has stated the sponsor feels torn between leaving behind any of her children and wanting to be with the applicant.  Separating her from her children or indeed separating the children is an unreasonable burden to place on the sponsor, given the compelling nature of her health condition.

29. The Tribunal has also sighted evidence that the applicant has attempted to visit the sponsor in Australia to provide her support in person but as is not unusual in circumstances where a Partner visa application is afoot, the Visitor visa was refused.

30. The Tribunal is satisfied that the sponsor and her family’s circumstances are such that they evoke attention in a powerfully irresistible way and therefore constitute compelling reasons for approving the sponsorship despite the limitations exceeded by the sponsor in relation to sponsorships to Australia.

31. On the evidence before the Tribunal the requirements of cl.309.213 and cl.309.222 are met.

32. 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 309 visa.

    DECISION

33. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.213 of Schedule 2 to the Regulations; and

    ·cl.309.222 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member