1820782 (Migration)

[2021] AATA 4974

1820782 (Migration) [2021] AATA 4974 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820782

MEMBER:Margie Bourke

DATE:2 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820,211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.311(a) of Schedule 2 to the Regulations.

Statement made on 02 December 2021 at 8:34am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships – compelling circumstances – no ongoing contact between applicant and former wife, who arrived on visitor visa one month after and remained unlawfully – sponsor’s mental health and treatment – previous gambling addiction and imprisonment – visa applicant’s support and child’s mutual and strong relationship with sponsor – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 395AA
Migration Regulations 1994 (Cth), rr 1.20J(a)(i), (c), Schedule 2, cls 820.211(2)(c), 820.311(a)

CASE
Babicci v MIMIA [2004] FCA 1645; [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 Home Affairs to refuse to grant the applicants Partner (Temporary) (Class UK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant applied for the visa on 15 August 2017 on the basis of his relationship with his sponsor. The second named applicant is the child of the first named applicant, and was born in [Year]. 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 (Cth) (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 first named visa applicant did not satisfy cl 820.211(2)(c) because the applicant did not meet the sponsorship requirements of r.1.20J. The delegate assessed the second named visa applicant against the primary criteria, and concluded the second named visa applicant did not meet the requirements of cl.820.211(2).

4. The Tribunal had regard to its objectives and obligations to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicants and the nature of the review. The Tribunal considered that due to the restrictions in the availability of in-person hearings, the conduct of hearing by video in this matter would prevent further delay. The Tribunal noted that the matter did not involve an extensive amount of paperwork to be put to the applicant by the Tribunal during the hearing. The Tribunal considered that the conduct of the hearing by video would allow the applicants a fair opportunity to give evidence and present arguments, would allow the Tribunal to conduct a fair and effective hearing, and would allow the Tribunal to assess the credibility of the evidence before it. For all these reasons the Tribunal decided this was an appropriate matter to be conducted by way of video hearing. The applicants were invited to attend a hearing by video. The Tribunal did not receive any objection to the matter proceeding by way of video hearing.

5. The first named applicant appeared before the Tribunal on 30 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, her sister, and a friend of the applicant and sponsor. At the invitation of the applicant the second named applicant also answered some questions from the Tribunal (although the Tribunal did not require she give an affirmation due to her age, and she was only present in the hearing for the three questions).   The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPONSORSHIP (cl 820.211(2)(c), cl.820.221(4)

   Is the applicant sponsored?

8. 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 reg 1.03 of the Regulations). I am satisfied that the sponsor is an Australian citizen.

9. 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.

10. Approval of sponsorship is subject to limitations contained in reg 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 reg 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 reg 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 reg 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.

11. I have considered the identity documents provided by the applicants, including the first named applicant’s Vietnamese passport. I am satisfied that the first named applicant is over the age of 18 years. I have considered the sponsorship form lodged online by the sponsor on 16 August 2017. I am satisfied that both applicants are sponsored by the first named applicant spouse who has turned 18.

12. I am satisfied that the first named applicant meets the sponsorship requirements of cl.820.211(2)(c) at the time of application.

13. In the Department’s decision record dated 3 July 2018, a copy of which was provided to the Tribunal by the applicants it is recorded that the sponsor had previously sponsored two persons who had been granted relevant visas as either her spouse, partner or prospective spouse or partner, and for this reason the limitations on further sponsorships under r.1.20J apply in this review.

14. The first named applicant and his representative stated in the hearing that it was conceded the sponsor had previously sponsored two partners who had been granted visas, and that the limitation provisions of r.1.20J were engaged.

15. Regulation 1.20J 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).

16. 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.

17. The first named applicant provided the Tribunal with extensive submissions and attachments in support of the claim that compelling circumstances exist affecting the sponsor.

18. The Tribunal has considered the claim that the sponsor’s previous spouse abandoned her and that there are children dependent upon the sponsor requiring her care and support. The Tribunal considered this claim, and the written and oral evidence provided, that the sponsor and her previous partner separated after the birth of their second child.  The Tribunal does not accept that this separation amounts to abandonment of the sponsor by her previous partner.  Further the evidence before the Tribunal is that when the sponsor received a term of imprisonment of nine months duration, her children were initially cared for by her sister, when they were aged [age] years of age in 2010. The Tribunal accept the evidence before it that in 2010 the children then went to live with their father, and have continued to reside with him since that time. The evidence before the Tribunal is that the two children chose to continue to live with their father, and the sponsor has never applied for legal orders that the children return to her care. The evidence of the first named applicant and the sponsor is that the children now come to visit them some weekends and holidays, and that the sponsor pays child support deducted from her Centrelink payment in the amount of between $16 and $51 for the two children per fortnight over the last two years.  The Tribunal has assessed the limited financial support and limited time the children spend with sponsor and does not accept that the children are dependent upon the sponsor for her care and support in circumstances that can be considered compelling circumstances.

19. The first named applicant claims that he has been a long-standing relationship with the sponsor, that they were married in Victoria in July 2017 and that this amounts to compelling circumstances affecting him that warrants the approval of the sponsorship. I put information to the first named applicant pursuant to s.359AA in the hearing the particulars of which are that his previous wife travelled to Australia as the holder of a visitor visa the month after he arrived with his daughter in 2017, and has remained unlawfully in Australia since that time. I explained to the first named visa applicant the relevance of this information is that one interpretation of these facts is that he may be in continuing contact with his previous wife and not in a long-standing relationship with the sponsor as claimed. After consulting with his representative, the first named applicant elected to respond to the information in the hearing, and stated he was shocked by the information and he had stopped all contact with his previous wife before he left Vietnam, and did not know where she was or what she was doing.

20. The first named visa applicant indicated he was happy for the Tribunal to ask his daughter about the situation, as his daughter had attended the representative’s office with her father when he came to the video hearing. The child told the Tribunal that she cannot remember her mother in Vietnam, that she had not seen or spoken to her in Australia and that she did not really want to see or speak to her mother. I accept the evidence of the two applicants that they are not in ongoing contact with the first named visa applicant’s previous partner who is the mother of the child.

21. I accept the evidence that has been provided in the form of extensive written evidence of the relationship, and the oral evidence from the first named visa applicant, the sponsor, the sponsor sister and the witness that the parties have been in a committed relationship since their marriage.

22. The Tribunal has assessed the evidence before it that the sponsor has previously suffered postnatal depression, a gambling addiction and has been seeing a psychologist for treatment since November 2018 on an ongoing basis. The Tribunal was provided with a detailed psychological report dated 17 November 2021. (The Tribunal notes the two headings in the report on page 6 and page 13 referred to Incidence of Family Violence and Relevant Family Violence. The Tribunal notes that these headings are in error and there is no reference to family violence in the report). I accept the opinion of the psychologist that the sponsor is suffering from stress, anxiety and depression and is struggling to cope with these conditions.

23. I have considered the evidence of the first named applicant, the sponsor, her sister, and the witness. I accept that the sponsor is emotionally and psychologically vulnerable, and is dependent upon the first name visa applicant. I also accept that the sponsor has developed a mutual and strong relationship with her stepdaughter. I accept the evidence of the sponsor’s sister that the relationship with the first named applicant has assisted the sponsor, her mental health has improved, she has overcome her addiction, and running the shop helps her with her mental health. (The first named applicant and the sponsor had a [business] together, which closed during the covid-19 pandemic lockdown).  I accept her evidence that if the sponsorship was not approved and the two applicants were not granted a visa, the sponsor’s mental health would deteriorate and she would most likely return to more severe depression and to gambling. I accept the evidence of the witness that he has a knowledge of the relationship since April 2019, that he has worked as a gambling inspector and that he believes if the sponsorship is not approved it would have a detrimental effect on the sponsor. I accept his evidence that he is aware the sponsor is suffering an illness and that the parties care for each other and support each other through this. I accept the evidence of the sponsor that if the sponsorship was not approved and the applications for the visa were rejected it would effect her because she depends on him. I accept the sponsor’s evidence that the first name visa applicant helps her so she does not become overly emotional. I accept her evidence that the first named visa applicant has helped her to calm down and to reconnect with the community.

24. I am satisfied that the first name visa applicant and the sponsor are in a long-standing relationship. I am further satisfied that there are compelling circumstances affecting the sponsor, namely her fragile psychological health and previous gambling addiction, that amount to reasons for approving the sponsorship of the applications for the visa.

25. Therefore although I am satisfied that the r.1.20J(1)(a)(i) limitations apply in this case, I am also satisfied pursuant tor.1.20J(2) the sponsorship of the applications for the visa should be approved because I am satisfied that there are compelling circumstances affecting the sponsor.

26. I am satisfied that at the time of decision for the purposes of cl.820.221(4), the sponsorship mentioned in cl.820.211(2)(c) is approved by the Tribunal. Therefore, the first name visa applicant meets the time of decision sponsorship requirements of cl.820.221(4).

27. For the above reasons, and on the evidence before the Tribunal, the first name visa applicant meets the requirements of the requirements of cl.820.211(2)(c) and cl.820.221(4).

    Secondary visa applicant

28. Cl.820.311(a)(i) requires that a secondary visa applicant at the time of application is the dependent child of the person who was applied for a Partner visa. I am satisfied based on the birth certificate that the second named visa applicant is the biological child of the first name visa applicant. I am satisfied that at the time of application the second named visa applicant was living with her father, the first name visa applicant and relied on him for her care. I am satisfied that the first named visa applicant applied for a Partner visa in 2017. I am satisfied based on the oral and written evidence before me the secondary visa applicant is the dependent child within the meaning of r.1.03 of the first name visa applicant at the time of application and at the time of decision. I am therefore satisfied that at the time of application second named visa applicant is the dependent child of a person who had applied for a Partner visa, and she therefore meets the requirements of cl.820.311(a)(i).

29. I am satisfied that the second named visa applicant meets the requirements of cl.820.311(a) at the time of application.

30. 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

31. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(c) and cl.820.221(4) of Schedule 2 to the Regulations; and

    The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the second named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.311(a) of Schedule 2 to the Regulations.

    Margie Bourke
    Member