1726920 (Migration)

[2020] AATA 1519

1726920 (Migration) [2020] AATA 1519 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726920

MEMBER:Linda Holub

DATE:13 February 2020

PLACE OF DECISION:  Sydney

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)(c) of Schedule 2 to the Regulations

Statement made on 13 February 2020 at 4:25pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – sponsorship limitation – sponsor of two previous successful Partner applications – compelling circumstances affecting the sponsor – separation from two previous wives – long term relationship – applicant’s studies in Aged Care Nursing – impact on the sponsor’s dependent son – custody arrangements for the sponsor’s son – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.20J

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 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 16 March 2015 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.820.221(4) because having considered the totality of the applicant’s circumstances, including the length and extent of her relationship with her sponsor, was not satisfied that there are compelling circumstances affecting the sponsor and was not satisfied that there are compelling circumstances affecting the sponsor which would justify not applying the sponsorship limitations requirement.

4. The applicant appeared before the Tribunal on 3 February 2020 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 Mandarin and English languages.

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

BACKGROUND

1. The applicant first came to Australia on a [temporary visa].  Between [November] 2013 and [January] 2015 she entered Australia several times as the holder of such a visa.  She applied for a Partner visa on 16 March 2015 on the basis of her relationship with her sponsor.  The Department’s Decision Record indicates that the applicant’s sponsor was the sponsor of two successful Partner visa applications and therefore the limitations of Regulation 1.20J apply.

CONSIDERATION OF CLAIMS AND EVIDENCE

Is the sponsorship an approved sponsorship?

1. Regulation 1.20J of the Regulations 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. 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).

2. 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.

Are there compelling circumstances?

1. The applicant provided a submission dated 23 January 2020 to the Tribunal prior to the hearing as well as other documentation in support of her review application.  In the submission the couple acknowledge that the issue in this case is the sponsor’s previous two sponsorships and that compelling circumstances must exist for not applying the sponsorship limitations.

10) The submission provides background information regarding the sponsor’s employment history and their views of the Department’s decision.  The Tribunal acknowledged this information and explained to both the applicant and her sponsor what it had drawn out as the compelling circumstances and explained it would discuss each of these in turn and would provide them with an opportunity to add any further information.  They agreed the compelling circumstances they sought to have considered by the Tribunal are the following:

a.the circumstances of the sponsor’s separation from his two previous wives.

b.the impact on the sponsor’s mental health resulting from the Department’s refusal decision.

c.the length of the couple’s relationship.

d.the applicant’s pregnancy in 2015.

e.the fact that the applicant is undertaking a [course] in Aged Care Nursing and concerns that the she would be unemployed if she were to return to China.

f.the impact on the sponsor and his son if they were to relocate to China to accompany the applicant if she were to return there and if she were to return without the sponsor and his son.

g.the couple’s plans for the future.

The circumstances of the sponsor’s separation from his two previous wives.

11) The submission explains that the sponsor separated from his first wife when she sought to have an ‘open marriage’.  At hearing the applicant confirmed that was her understanding.  The Tribunal put it to her that it was having difficulty understanding how that situation was a compelling circumstance in relation to her case.  She responded that the fact the sponsor’s first marriage ended is the reason for his second marriage.

12) The submission states that the sponsor’s second marriage ended “when his then wife tried to stab him, resulting in a conviction bond and [an] AVO for her”[1].  The applicant gave a similar account of the deterioration of the sponsor’s relationship with his second wife.  The Tribunal put it to her that it was unclear why she considered the situation between the sponsor and his second wife is a compelling circumstance for the sponsor to be allowed to proceed with a third sponsorship.  She stated that it was a very difficult time for the sponsor. She stated that it was not his doing but that he had borne the consequences.  She stated that although the sponsor’s ex-wife is allowed access to their son, she rarely sees him and rarely provides him with anything such as clothes, toys or items for school.

[1] AAT file, folio 219.

13) The sponsor also gave evidence that he is of the view that the circumstances of his separation from his two previous wives are compelling such that he should be allowed to sponsor the applicant. He referred to the information contained in the submission on this issue and elaborated by describing the telephone calls he had to make to 000 because his wife was wielding a knife and threatening.

14) The Tribunal is prepared to accept that the relationship between the sponsor and his previous two wives ended badly but the Tribunal does not consider those situation provide compelling circumstances that would justify not applying the sponsorship limitations in Regulation 1.20J.

The impact on the sponsor’s mental health of the Department’s refusal decision

15) The submission states that the period after the couple were notified of the Department’s refusal decision was a traumatic time for them.  It states the sponsor attended 12 counselling sessions but that the psychologist who undertook the sessions informed the sponsor that she could not provide a report to the Tribunal “due to confidentiality”[2]. 

[2] AAT file, folio 218/reverse side.

16) The applicant gave evidence that the sponsor undertook counselling but she had difficulty remembering when that occurred.  She stated that it was possibly in 2018 or in the beginning of 2019.  She stated that she came to Australia in 2014 and they have been together for a long time so she cannot remember.

17) The sponsor stated that he had an initial six counselling sessions and then an additional six.  He stated that the primary reason was in relation to the application refusal but he was also dealing with some workplace harassment issues.  He stated the sessions were undertaken in 2018 and held approximately every two weeks.  He provided copies of appointment cards.

18) The Tribunal questioned why his psychologist could not provide a report to the Tribunal without referring to any confidential aspects of his counselling.  The Tribunal explained that it receives many such reports.  The sponsor responded that he did not know.

19) The Tribunal notes that the sponsor lodged a complaint with the Department [in] February 2018 complaining that the visa application was refused.  It concludes with the sentence “My suicide at the utter disregard of my country for nothing criminal in our choices and treating us worse than criminals is probably the only choice that would be mine”[3].  The Tribunal has had regard to written evidence provided by the applicant showing that the sponsor had a GP Mental Health Care Plan dated 7 November 2011. 

[3] AAT file, folio 121.

20) The Tribunal accepts the couple were extremely disappointed that the visa applicant’s application for a Partner visa was refused and accepts that the sponsor sought and obtained psychological counselling at the end of 2017 and undertook counselling in 2018.  No evidence was submitted either orally nor in writing that the sponsor’s mental health has continued to suffer.  The Tribunal does not consider the sponsor’s mental health issues in 2017/2018 provides a compelling circumstance that would justify not applying the sponsorship limitations in Regulation 1.20J.

Long term relationship

21) The submission provided to the Tribunal states that at the time the applicant’s Partner visa application was refused by the Department the couple had already been married for three and a half years.  They have now been married for five and a half years. 

22) At hearing the couple provided consistent evidence that they met in 2012.  Between the time they met and the date of application in March 2015, the sponsor travelled to China on five occasions to spend time with the applicant.  As outlined the visa applicant first visited Australia in November 2013 and then in July and October 2014.  The couple’s movement records also show that they travelled together to China at the end of December 2016.  The applicant submitted a copy of a translated marriage certificate showing they married in China in June 2014 and they state they have lived together since July 2014. 

23) The Tribunal was provided with copies of photographs of the couple including from their Australian wedding/ring ceremony in 2014 and at various different locations.  Some photos included the sponsor’s child.

24) The Tribunal has also had regard to Statutory Declarations – Form 888s and statements of support provided by friends and family members to the Department and to the Tribunal.

25) The sponsor’s mother provided a letter of support to the Department dated 10 September 2016.  In it she stated that the applicant and the sponsor are a very happy and content couple.  She wrote:

“Both are parents to [the sponsor’s] son [name], aged [age] years.  [Name] has an excellent relationship with [the applicant] he calls her [by her name] and or mum.

[The applicant] has blended well with our family.  She joins in with us or Australian occasions, and, we join with them her and her Chinese friends for Chinese New Year.

[The sponsor] and [the applicant] [are] a very happy loving couple who enjoy being with each other.  I feel I can safely say they are genuinely in love and I am happy to welcome her into our family”[4].

[4] DIBP file, folio 104.

26) The Department was also provided with Statutory Declarations from long standing colleagues of the sponsor.  They refer to regular visits to the family and exposure to the relationship between the applicant and the sponsor’s son and also referred to the affection the couple show for each other.

27) The declaration made by the sponsor’s mother’s dated 20 January 2020 refers to the applicant and sponsor marrying five and a half years ago.  She attended they Australian ceremony.  She states that she has weekly contact with the applicant and refers to the loving family of the applicant, the sponsor together with the sponsor’s son.  She attests to the genuineness of the relationship between the applicant and the sponsor and provides some insights into the relationship. 

28) The declaration provided by the applicant’s neighbour dated 9 January 2020 also referred to him knowing the applicant for the past five years.  He refers to the sort of contact he has had with the applicant and sponsor.  He outlines the sort of social activities he and his family undertake with the couple.  A further Statutory Declaration dated 6 January 2020 was also provided but it is not clear what the declarant’s relationship is with the applicant.  The writer states he has known the couple for the past four years and refers to seeing the couple at fortnightly BBQs and eating dinner together on a weekly basis and other activities.  The declarant refers to the affection the couple show for each other and discusses the bond that has developed between the applicant and the sponsor’s son. 

29) The Tribunal accepts the couple met in 2012 and that the sponsor and the applicant travelled to meet each other a number of times until the applicant started to reside in Australia with the sponsor in mid-2014.  The Tribunal also accepts that the couple married in 2014.  The couple provided convincing evidence about the longevity of their relationship which is corroborated by third party evidence.  Persuasive evidence was also provided regarding the involvement each party have in the lives of the other, including in the life of the sponsor’s son.

30) The Tribunal is satisfied that the length of the relationship provides a compelling circumstance that would justify not applying the sponsorship limitations in Regulation 1.20J.

The applicant’s pregnancy in 2015

31) The submission states and written evidence was provided regarding the applicant’s pregnancy in 2015.  It provides some details about the trauma the couple suffered because it as a ectopic pregnancy.  The submission also states that the couple would very much like to have a child but that in view of the age of the sponsor they believe it would not be in the child’s interest.

32) The Tribunal explained to the applicant that it accepts that she was pregnant in 2015 and that there were complications which were traumatic.  However, given that was now over four years ago it is not clear why it is compelling reason at this time.  The applicant responded that if she had a baby then she would most likely be granted a visa.  She stated that she did not want to become pregnant merely to obtain a Partner visa. 

33) The Tribunal also explained to the sponsor that it accepts that the applicant was pregnant in 2015 and that there were complications which were traumatic.  He was provided with an opportunity to provide any further evidence as to why it is a compelling circumstance now.  He explained it was one of the things that happened and he finds it difficult to think how badly things might have gone.  He spends time thinking about what might have happened if they had an unexpected child

34) The Tribunal accepts that the applicant was unknowingly pregnant in 2015 with an ectopic pregnancy.  The Tribunal accepts that what occurred in relation to the pregnancy was traumatic for the couple.  The Tribunal is not satisfied that the fact of a pregnancy in 2015 provides a compelling circumstance that would justify not applying the sponsorship limitations in Regulation 1.20J.

The applicant is undertaking a [course] in Aged Care Nursing and concerns that the applicant would be unemployed if she were to return to China. 

35) The submission refers to the fact that the applicant relinquished her small business in China [prior] to moving to Australia.  It refers to the applicant currently undertaking a [course] in Aged Care Nursing.  Written evidence was provided of the applicant’s enrolment in a [related course] and to date she has completed [another related] course. The submission refers to the need for Aged Care nurses and the applicant’s Cantonese and Mandarin language skills and states they would be an asset in the Australian context.  It refers to two small businesses the applicant operated previously but which the couple felt they should sell following the Department’s decision to refuse the visa application even though they were sold at a loss 

36) At hearing the applicant stated that the sponsor works at [Agency 1] and that she is doing an Aged Care course which she will complete in a few months.  She stated that she is not a burden on Australia and tries to make a contribution.  She also works casually in [businesses] in the local area, when needed.  The applicant stated that if she returns to China she will be unemployed because she sold her business and her car.  The Tribunal asked the applicant why she would be unable to re-establish her business if she were to return.  She stated that because she has been in Australia for almost six years, it would be difficult for her to fit back in.  People would not be as helpful.  She added that her mother passed away in December which would make it even more difficult for her on her return to China.  The applicant stated that she went back to China many times when her mother’s health deteriorated.  She said that helping her mother was another reason she decided to do the aged care course. 

37) The sponsor also referred to the aged care nursing course being undertaken by the applicant.  He stated that she is studying very hard and that it will be very good for the applicant and for them as a couple.  In relation to the claims that the applicant would be unemployed if she returns to China the sponsor stated that the applicant no longer has her business and he believes that it would be very difficult for her to try set up another business from scratch.

38) The Tribunal accepts that the applicant is undertaking a [relevant] course.  The Tribunal also accepts the applicant sold her business and car when she left China and is prepared to accept that it would be difficult for her if she were to return to set up a business again.  Nevertheless, the Tribunal is of the view that her time in Australia may be beneficial and notes that she set up two businesses in Australia so she has some capacity to engage at a business level.  The Tribunal is not satisfied that the fact the applicant is undertaking a nursing course or that she may be unemployed in China provide compelling circumstances that would justify not applying the sponsorship limitations in Regulation 1.20J.

The impact on the sponsor and his son

39) The submission provided to the Tribunal states that the sponsor has worked at [Agency 1] since 1991 and that he has no other qualifications.  It states that if the applicant is required to return to China and he was to travel to China to be with her that he would find it difficult to find work in there.  It argues that he would be reliant on the applicant but that as she would be out of work, they would face significant stress.

40) The submission also outlines the potential impact on the sponsor’s son if the visa applicant must returns to China.  It refers to his child being in [grade] and that it would be detrimental to the child.  It states that his biological mother would be unlikely to agree to him leaving Australia for the foreseeable future, even though she rarely chooses to see him.

41) At hearing the applicant stated that it would be very difficult for the sponsor to live in China.  She repeated that he has always worked for [Agency 1].  The Tribunal put it to her that there is no requirement for the applicant to go to China with her.  It would at his discretion.  She responded that if she gets deported it would not be easy to maintain their marriage.  She stated that it is a long way and there would be a huge financial impact on them if they had to travel back and forth to China to see each other.  She expressed concern that their marriage would fall apart.

42) The applicant stated that if she was to leave Australia it would have huge implications for the sponsor’s son.  She stated that she cannot leave him as they are attached to each other.  She stated that although the boy’s biological mother has weekend access to him she rarely takes him for a weekend.  She stated that her mother-in-law not is young and it would be very difficult for the sponsor to cope without her and detrimental for her step-son.

43) The sponsor reiterated that it would be very difficult for the couple if the visa applicant was required to return to China and that if he did not go he can see that it would be impossible to continue the relationship from Australia.  He expressed concern that it would break the marriage. 

44) The sponsor referred to the Court Order which grants the sponsor and his second wife joint parental responsibility for their son with the child living with the sponsor and his mother being granted access to him every second weekend during the term and for half of the school holidays in terms 1, 2 and 3 and for four weeks during the summer holidays. The sponsor stated that he would have to return to the family law court to be granted permission to take his son to live in China.  He stated that as his son is [age] years old, he doubt that permission would be granted and doubts the child’s mother would be agreeable to the boy moving to China.

45) The applicant provided a handwritten letter of support from the sponsor’s son.  It refers to the care provided by the applicant that she walkd him to school and still provides him with transport.  The letter also states that the applicant cooks the family meals and that she supports him with rewards and affirmations.  The letter refers to an example of when the applicant assisted the child when he cut his foot.  It states that the impact of her leaving would affect me and the family and that the applicant loves him like a mother and that he could not ask for a better step-mother.

46) The Tribunal is of the view that it is a matter for the sponsor as to whether he would relocate to China if the visa applicant is required to return there.  However, the Tribunal acknowledges that his possible move to China to be with the visa applicant is potentially constrained by the fact that a current Family Court Order exists that both he and his second wife have joint parental responsibility for the long term care, welfare and development of their child.  The Tribunal is prepared to accept that the child’s biological mother may not necessarily agree that the child can move to China and in any event a new Family Court Order would be required.  The Tribunal acknowledges that such matters are complicated. The Tribunal has also considered the impact on the sponsor’s son if the sponsor were to relocate to China with the child.  The Tribunal is prepared to accept that it would be disruptive for him especially given he has commenced high school.

47) The Tribunal accepts that there are complications for the sponsor to move to China given the custody arrangements in respect of his son.  Furthermore, the Tribunal finds that it would be disruptive for the child if he were to move.  The Tribunal accepts that the applicant and the sponsor’s child have formed a bond and that she provides him with care and support and could be considered the child’s step mother.  The Tribunal considers that if the visa applicant returned to China without the sponsor and his son it would be detrimental for an Australian citizen child. 

48) The Tribunal is satisfied that the impact on the sponsor and his son would be such that it provides a compelling circumstance that would justify not applying the sponsorship limitations in Regulation 1.20J.

The couple’s plans for the future

49) The submission provided to the Tribunal states that if the visa applicant obtains a Partner visa the couple have plans to sell the house and to purchase a property together and to build a house.  It provides some detail on what they envisage building.

50) The applicant stated that everyone wants a better environment.  The Tribunal explained that because they are future plans it would not necessarily place a lot of positive weight on them as a compelling circumstance.  The applicant was provided with an opportunity to comment.  She responded that she hopes it can be considered positively.  She stated that she knows that her husband had two previous marriages.  She repeated that she does not want to be burden.  She stated that she hopes their plans provide a compelling reason because they want to live together for a long time. 

51) The sponsor was also provided with an opportunity to comment on why their future plans to build a house together provides a compelling circumstance that for not applying the sponsorship limitation.  The sponsor responded that he hopes they can do it because they would like more space and more privacy.

52) The Tribunal accepts that the applicant and the sponsor would like to sell their current house and to buy a property and build a new home.  However, the Tribunal is not satisfied that their plans provide a compelling circumstance that would justify not applying the sponsorship limitations in Regulation 1.20J.

Overall findings

53) Having considered the claims and the circumstances of the parties, the Tribunal is satisfied there are compelling circumstances affecting the sponsor to approve the sponsorship irrespective of him having already entered into two approved sponsorships and therefore meets r.1.20J.

54) : On the evidence before the Tribunal the requirements of cl.820.211(2)(c) are met.

Documents provided to the Department

55) At the conclusion of the hearing the Tribunal indicated that it was likely to remit the decision.  The Tribunal explained that it appeared that the genuineness of the relationship had not been assessed by the Department.  The Tribunal was asked to provide all documents that had been given to the Tribunal to the Department to facilitate its assessments.  Folios 28 to 37, 38 to 156 to 172, 188 to 221 have been provided to the Department.

DECISION

56) 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)(c) of Schedule 2 to the Regulations

Linda Holub
Member