1704788 (Migration)

[2018] AATA 2697

1704788 (Migration) [2018] AATA 2697 (7 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704788

MEMBER:Fiona Meagher

DATE:7 June 2018

PLACE OF DECISION:  Brisbane

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 (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 07 June 2018 at 4:17pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine spousal relationship exists – Joint finances – Joint household responsibilities – Relationship held out to others – Relationship viewed as continuous and ongoing – Significant emotional support – Genuine spousal relationship exists - Sponsorship limitation – Whether compelling circumstances exist – Significant hardship if visa application fails – Significant difficulty in relocating to applicant’s home country – Compelling reasons exist – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), rr 1.15A(3), 1.20J, Schedule 2, cls 820.211, 820.221

CASES
Babicci v MIMIA [2004] FCA 1645
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 of a delegate of the Minister for Immigration on 7 March 2017 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 13 April 2016 on the basis of her relationship with her 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.820.221(4) because the sponsorship requirements were not met.

4. The applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the sponsor].

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Hungarian and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant and sponsor are in a genuine spousal relationship, and whether the sponsorship requirements are met. .

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

10. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the evidence, an Australian marriage certificate dated [August] 2016 the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

12. Both the applicant and sponsor were born in Hungary, the sponsor on [date] and the applicant on [date]. The sponsor migrated to Australia some years ago and has previously sponsored two spouses to Australia. Both of those marriages ended and the sponsor has been depressed due to feelings of disappointment and betrayal. He has one child with whom he has no contact. He has previously worked [in various occupations], although is currently unemployed. The applicant has previously been married, and was divorced in 2013. She has two children one of whom is currently in Australia with his wife who is on a student Visa, and one of whom still resides in Hungary and is studying.

13. The parties met in Hungary in 2014, after the sponsor found the applicant’s picture on a dating website. The party spent some time together, and it transpired that they got on very well. After the first meeting, a week elapsed, and then the parties met up again (for a two day weekend), and have been together ever since. The sponsor invited the applicant to accompany him back to Australia, which she did.

14. In relation to the financial arrangements of the parties, the evidence is that they have a joint bank account and share everything. The sponsor does not work at the moment as he is too anxious and depressed. The applicant is working from home [in a particular profession] and the sponsor receives an unemployment benefit. The parties rent a unit together and a copy of the tenancy agreement was before the Tribunal, as were joint utility bills.

15. Immediately after arriving in Australia the parties rented a room in Brisbane, and subsequently moved to the Gold Coast where they live together in a two-bedroom unit which they rent together. The applicant is responsible for most of the domestic chores but insists that the sponsor helps her to keep him occupied to alleviate his depression. The Tribunal accepts that the parties have established a joint household and that they share household responsibilities.

16. In relation to the social aspects of the relationship, there are some statements from third parties attesting to the genuine nature of the relationship and there are a significant number of photographs of the couple socialising together and with others. The couple’s evidence is that they do not have many friends but have a lot of contact with the applicant’s son and his wife who currently live in Australia. As well, [all] of the applicant siblings and their spouses attended the parties wedding in Australia in August 2016. The applicant has also made friends with her clients through her work. The parties gave evidence that they enjoy hiking, excursions to the mountains, beach walks and trips to the seaside, playing tennis and going on short holidays. The Tribunal accepts that the couple plan and undertake joint social activities and represent themselves to others as being in a genuine relationship. The Tribunal accepts that family and friends leave the relationship to be a genuine one.

17. The parties married on August 2016, and have been inseparable since almost immediately after meeting in June 2014. They have been together for about four years. Both parties gave evidence that they draw companionship and emotional support from one another, and the sponsor is particularly reliant upon the applicant given his current depression and low mood. The sponsor gave evidence that the applicant’s presence in his life has had a “massive impact” upon him. He said that she helps and supports him in relation to his depression, and that he is very worried about losing her. The Tribunal accepts that the parties view their relationship as a long term one and that they are committed to one another.

18. Having regard to all of the circumstances of the relationship, the Tribunal is satisfied at the time of the making of the application for the visa and at the time of this decision, the applicant and the sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied that the parties relationship is genuine and continuing and that they live together or do not live separately and apart on a permanent basis.

19. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

20. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

    Is the applicant sponsored?

21. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’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).

22. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each 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.820.221.

23. 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 for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

24. The present case is affected by the sponsorship limitation in regulation 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’ve lapse between each of the sponsorships.

25. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

26. The expression ‘compelling circumstances’ is not defined in the legislation. 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.

27. The Tribunal, on the evidence, finds that the sponsorship limitation applies in the present case to preclude approval of the sponsorship, unless the Tribunal is satisfied that there are compelling circumstances affecting the sponsor. As a result the applicant does not meet clause 820.211(c) and clause 820.221(4).

    Are there compelling circumstances affecting the sponsor?

28. The parties claimed that the compelling circumstances affecting the sponsor were that he had depression anxiety and stress, in relation to his previous failed relationships, and the possibility that the applicant’s Visa application will fail. The Tribunal had before it correspondence dated [in] May 2018 from [a] registered psychologist, and from [a doctor] also dated [in] May 2018 both confirming that the sponsor suffered from depression. According to the letter of [the doctor] the sponsor has been seen the psychologist for over two years to deal with his mental health issues. Both the doctor and the psychologist opined that the sponsor would be emotionally devastated if his wife were to return to Hungary, and the psychologist stated that it would be “extremely difficult for (the sponsor) to re-establish himself back in Hungary and the stress of this would put enormous pressure on the couple”.

29. The Tribunal asked both the applicant and the sponsor about whether it was possible for them to relocate to Hungary. The sponsor stated that he had been in Australia for over 30 years and was very established here, and at his age (63) he would find it extremely difficult, indeed impossible, to move. The applicant shared that view.

30. The Tribunal also had regard to the length of the relationship. The parties have now been together for about four years, and claim that the length of the relationship is a compelling circumstances affecting the sponsor.

31. When making the application the Visa applicant was sponsored by the sponsor who completed the relevant sponsorship form. As the sponsor was born in [year] and was over the age of 18 at the time the application was made the Tribunal finds that the Visa applicant was sponsored by the sponsor who is an Australian citizen and who claimed to be the spouse of the Visa applicant who had turned 18.

32. Having regard to the circumstances individually, and as a whole, the Tribunal is satisfied that the parties long-standing relationship, the support the Visa applicant offers the sponsor, particularly in light of his mental health issues, and the difficulties he would face if he were compelled to leave Australia and re-establish himself in Hungary to maintain the parties relationship, are compelling circumstances affecting the sponsor, and the sponsorship can be approved despite the operation of r.1.20J(1).

33. On the evidence before the Tribunal the requirements of cl.820.211 and cl.820.221 are met.

34. 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

35. 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 (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Fiona Meagher
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).