1837201 (Migration)

1837201 (Migration) [2022] AATA 452 (18 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1837201
MEMBER:David Barker
DATE:18 January 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 18 January 2022 at 1:33pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – visa, relationship and residence history – legally married – sponsor’s child from extra-marital relationship – separation and cancellation of applicant’s dependant visa – application for protection visa refused and refusal affirmed – reconciliation and second child – shared responsibility for both children – inconsistent evidence of relationship and residence – sponsorship limit – application made within 5 years of grant of sponsor’s contributory parent visa – no compelling reasons for applicant not applying for contributory parent visa at same time as sponsor – cultural attitudes – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 116(1)(a), 359A
Migration Regulations 1994 (Cth), r 1.20KA(2), (3)(a), Schedule 2, cl 820.211(2)(c)
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 30 June 2017 on the basis of his relationship with his 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 (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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(c) because the delegate determined reg 1.20KA of the Migration Regulations 1994 (Cth) (the Regulations) was not met, due to the limitations associated with approving the sponsorship relating to partner and prospective marriage visa applicants by persons granted a permanent Contributory Parent category visa.
On 23 November 2021 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 13 December 2021 at 12 noon.
On 13 December 2021 at 9:30 am the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant’s wife (the sponsor) first arrived in Australia [in] February 2008 on a Subclass 573 Student visa. She was subsequently granted further Student visas in May 2008, September 2010, October 2011 and July 2013, with that latter Student visa ceasing on 29 September 2014. After this she held Bridging E visas until granted a Subclass 173 Contributory Parent (Temporary) visa on 11 August 2015. The sponsor departed Australia on that date and then returned to Australia on 2 September 2015. In relation to the Contributory Parent visa, the sponsor was in turn sponsored by [Mr A], on the basis of shared parentage of an Australian citizen child. The sponsor was granted the Subclass 143 Contributory Parent (Permanent) visa on 20 March 2017 and became an Australian citizen, by grant, [in] November 2020.
The applicant first arrived in Australia [in] February 2008 on a Subclass 573 Student visa granted as a dependant of the sponsor. He was granted subsequent Student visas, as a dependant of the sponsor, in May 2008, September 2010 and October 2011, with the latter visa valid to 17 April 2013.
A further Student visa application, identifying the sponsor as the primary visa applicant, with the applicant and [the child], born [2012], as dependant applicants, was lodged on 17 July 2013. The Student visa for the parties was granted, but in relation to the applicant it was subsequently cancelled under s 116(1)(a) on the basis that the circumstances which permitted the grant of the visa no longer exist because the applicant was no longer the spouse, or member of the family unit, of the sponsor. This followed on from the sponsor contacting the Department and informing them that her relationship with the applicant had broken down.
The applicant requested a review of this decision by the Migration Review Tribunal (MRT), which on 26 September 2013 set aside the decision under review and substituted a decision not to cancel the applicant’s Student visa.[1] The decision record regarding that matter noted that at hearing the applicant and the sponsor gave evidence that whilst they had experienced some relationship difficulty they did not stop living together at any time and that the applicant was at that time in September 2013 caring for their baby on a full-time basis. The Tribunal has listened to the recording of that hearing and verified the accuracy of the information outlined in the aforementioned MRT decision record.
[1] MRT Case Number [Number 1].
The applicant applied for a Subclass 866 Protection visa on 9 May 2014, with that application being refused on 28 January 2015. He applied for review of that decision by the Refugee Review Tribunal (RRT), and on 10 May 2016 the RRT affirmed the Protection visa refusal decision.[2] The applicant applied for a judicial review of the RRT decision, with that matter finally determined [in] August 2017 on ‘client withdrawal’ and Dismissal by the Court.[3]
[2] RRT Case Number [Number 2].
[3] Federal Court, FCC NSW [Number 3].
The application for the Partner visa which is the focus of the current review was lodged on 30 June 2017. The applicant provided documents to the Department in support of the application including, but not limited to, the following:
·Identity documents;
·documents regarding the parties’ marriage;
·birth certificate and other evidence regarding [the child];
·Semester 1 - [Suburb 1] Public School report regarding [the child];
- statements by the applicant and sponsor;
·witness support declarations and statements;
·psychology reports and medical evidence regarding the sponsor;
·photographs;
·financial records and tenancy records.
The decision record of the delegate, a copy of which was provided with the review application indicates that on 14 September 2018, the applicant was sent a letter requesting further information in relation to his Partner visa application, with a specific invitation to provide compelling reasons as to why he did not apply for the Contributory Parent visa at the same time as his sponsor. The delegate noted that on 4 October 2018, the applicant provided a submission in which he requested the sponsor limitation be waived due to compelling reasons.
On the basis of the information available to the delegate, they determined that the sponsor was granted a permanent Contributory Parent category visa, after 1 July 2009 and was in a spousal relationship with the applicant before the permanent Contributory Parent visa was granted. As five years had not passed since the grant of the sponsor’s permanent Contributory Parent category visa, she was affected by the reg 1.20KA limitation which prevented her from being a sponsoring partner as defined in cl 820.211(2)(c) of the Regulations. Further to this the delegate determined that there were no compelling reasons to explain why he did not apply for the Contributory Parent visa at the same time as his sponsor or to otherwise approve the sponsorship.
In association with the current review, the applicant has provided further evidence in support of his claims, including, but not limited to, the following:
·Representative’s written submissions, 10 December 2021;
- Written statement of applicant’s wife, dated 9 December 2021;
·Psychology reports and medical evidence regarding the sponsor and [the child];
·[Bank 1] statement – account held by the applicant;
·Residential Tenancy Agreement;
·Birth certificates for [the child], born [2012] and [Child 2], born [Date];
·Copy of DNA test results pertaining to [the child];
·Statutory Declaration, [Mr B], 7 December 2021;
·Statutory Declaration of [Ms C], 6 December 2021;
·Article - 'That’s how love kills in India, literally', Samrat Sharma, 18 September 2021;
·Article precis - Nobes, G., Panagiotaki, G., & Russell Jonsson, K. (2019). Child homicides by stepfathers: A replication and reassessment of the British evidence. Journal of Experimental Psychology: General, 148(6), 1091–11, precis;
·Copy of a letter from the Student Integrity Officer DIAC to [the applicant], 2 October 2012, Folio 17 Notice of Intention to cancel TU572 visa of Applicant;
·16 family photographs, captioned: 'Family Where life begins and love never ends'.
Particulars of information put to the applicant pursuant to s 359A of the Act
There are discrepancies and inconsistencies in the evidence before the Tribunal about the history and nature of the applicant’s relationship with the sponsor. It is necessary for the Tribunal to determine the reliability of evidence put forward by the applicant in support of his claims in order for the evidence to be given due consideration. This is particularly the case where the applicant elected to not make himself available to test this evidence at hearing. Accordingly, the Tribunal put relevant discrepancies and inconsistencies to the applicant in accordance with s 359A of the Act.
The s 359A letter sent to the applicant explained why the information was relevant and the consequences that could flow from the Tribunal relying on the information. The applicant was provided an extension of time in which to comment or respond and provided the Tribunal with a response, on 7 January 2022.
The particulars of the information put to the applicant are as follows:
Issue 1
A review of the recording and transcript of when the applicant appeared before the MRT on 26 September 2013 shows that he gave oral evidence that he never stopped living together with the sponsor. The applicant said in response to a question about how long they have lived apart, “We are together, we were together” and “Actually we never separated”. The applicant’s wife gave oral evidence to the MRT on 26 September 2013 that was consistent with the evidence given by the applicant. She said that she and the applicant had not stopped living together for any period of time and that they were still, as at the time of that hearing on 26 September 2013, together.
The s 359A letter explained that this information is relevant because it is different to what the sponsor has claimed in a written statement, dated 9 December 2021, where she claimed she did break up the relationship with the applicant in mid-2012 and that the applicant moved out of her household around August 2012. The letter explained that the inconsistency in the evidence regarding this issue raises concern as to whether the applicant and the sponsor are a reliable source of information in support of their claims.
The s 359A letter noted that if the Tribunal prefers the evidence given to the MRT on 26 September 2013, it may find the applicant was in an ongoing marital relationship with the sponsor at the time she applied for the Subclass 143 Contributory Parent visa.
Issue 2
A review of the recording and transcript of when the applicant appeared before the RRT on 4 May 2016 shows that he gave oral evidence about the claimed separation from the sponsor which was different to evidence she and he previously gave to the MRT in September 2013.
In May 2016 the applicant told the RRT that he and the sponsor had separated within [a number of] months of the birth of the applicant’s wife’s [child] in [2012]. The applicant also gave oral evidence during the RRT hearing that he and the sponsor separated and stopped living together in June 2012. The applicant gave oral evidence at the RRT hearing in May 2016 that he and the sponsor had not lived together again at any stage since June 2012. The applicant gave oral evidence at the RRT hearing that he had no involvement with looking after [the child] after he separated from the sponsor in June 2012.
The s 359A letter explained that this information is relevant as the evidence he and the sponsor gave to the MRT in September 2013 claimed that as at that date they had at no stage separated or lived apart from each other.
The s 359A letter explained that in her written statement, dated 9 December 2021, the sponsor claimed that the applicant did not move out of the household he shared with her until around August 2012, which is two months later than when the applicant claimed during his hearing before the RRT. The s 359A letter noted that of further concern is that in his evidence to the RRT in May 2016 the applicant claimed that the sponsor moved out from where they were living after they separated, rather than, as she has more recently claimed, he moved out.
The s 359A letter also explained that this information is relevant because whereas in May 2016 in his evidence to the RRT, the applicant claimed to have no involvement with looking after [the child] after June 2012, both he and the sponsor gave evidence to the MRT in September 2013 that he frequently looked after [the child] and had done so since his birth. The applicant gave oral evidence to the MRT that as he was not at that time allowed to work, he was “living with the child at home”. In response to a question from the MRT Member to the sponsor about who was taking care of [the child], she gave oral evidence that “Currently my husband is doing that, because I am a student and I also work 20 hours”.
The s 359A letter explained that the inconsistencies in evidence provided by the applicant and the sponsor regarding this issue gives rise to concern as to whether they are truthful witnesses and whether information provided by them about their relationship history is reliable.
The s 359A letter noted that when he was asked, during the RRT hearing to explain inconsistencies in the evidence provided by him and the sponsor, the applicant claimed to have a poor memory. The s 359A letter put to the applicant that given the evidence he and the sponsor gave to the MRT in September 2013 was at a time much closer to the time of the claimed temporary marital separation, it is likely that his recall of events was more accurate at that time in 2013 than it may have been in 2016, or more recently. The s 359A letter put to the applicant that it is more likely therefore that the evidence he gave to the MRT in September 2013 is more reliable.
The s 359A letter noted that in the alternative, the concern arises that he and the sponsor gave evidence to the MRT that was false and misleading. This would raise a general concern that information provided by them in support of the applicant’s claims is not reliable and that the applicant is willing to misrepresent his circumstances where he perceives that this may be to his advantage.
Issue 3
A review of the recording and transcript of the applicant’s hearing before the RRT in May 2016 indicates he gave evidence that he had arranged for DNA testing to establish the parentage of [the child] two months after his birth in [2012] and that the applicant found out that he was not his natural father a week after that. Whereas the DNA test results provided as evidence following the RRT hearing indicated the test was requested by the sponsor in April 2013, over a year after [the child]’s birth.
The s 359A letter explained that this information is relevant as it is a further example of the applicant providing evidence that is inconsistent with evidence from another source, in this case the DNA test result report.
The s 359A letter explained that it is also of concern that when he appeared before the MRT in September 2013, when the DNA test results were available, both the applicant and the sponsor referred to [the child] as their child. The s 359A letter explained that it is of concern that the applicant gave evidence to the RRT in May 2016 that he was unaware at that time who the natural father of [the child] was, whereas the DNA test results provided the name of the natural father, [Mr A], who is described in other evidence provided by the applicant as a member of the household in which he had been living with the sponsor at the time of the claimed separation.
The s 359A letter put to the applicant that the oral evidence he gave to the RRT that he did not, in May 2016, know who [the child]’s natural father was lacks plausibility and gives rise to further concern as to whether evidence provided by him in support of his claims is reliable. The s 359A letter then explained that if the Tribunal finds the sponsor for the Partner visa was his partner on or before she was granted the Contributory Parent visa and there are no compelling reasons as to why he had not applied for the visa when she did the Tribunal will affirm the decision under review.
The response received from the applicant on 7 January 2022 consisted of statements from the applicant and his spouse which provided the following information.
The applicant’s statement
Reference is made to your letter dated 15.12.2021 in which you have requested the comments to certain issues involved in visa application.
I would like to state that:
I married [the sponsor] on [date].8.2006.
It was a love marriage and not an arranged marriage.
It was against the wishes of my parents because I belong to a [particular] family and [always] marry in [particular] families.
In India and in our culture the position of husband is higher than wife however when we came to Australia we both encountered different culture and different values.
I tried to follow Indian culture and Indian values but did not work in the new environment of Australia.
My wife had different belief. She wanted to live as a free person.
She did not tolerate any criticism nor any subjugation.
I do not know if it was due to my behaviour or due to some other reason that she started new relationship. And had a child from that relationship.
She stopped spousal relationship with me.
Initially I could not believe what was happening but later on it was revealed that the child was not my child and that she did not want to continue relationship with me.
I realised my mistakes and I was also aware that when the news of my wife delivering a child fathered by another person will come out, it will spread like wildfire in India. The family and the community will not accept this and I will be held responsible. I was concerned of family and community backlash.
More than all this I still had feelings for my wife and I loved her after absorbing all this adverse facts I still wanted to live with my wife.
In September 2013, [the sponsor] allowed me to live with her but she didn’t start spousal relationship with me it did not work and we separated again.
Since our relationship was broken my wife didn’t include me in her parent visa application.
Finally we rejoined in June 2017 and started living together. During this time I had realised my position and [the sponsor] had realised her position
Throughout the period before rejoining I went through lots of confusion, doubts, stress and personality outbursts.
This is the reason that I was incoherent in my replies in the hearings of the Tribunal’s I could not relate to the questions asked and I could not give consistent replies I was utterly confused and nervous.
It’s not true that my wife or I tried to mislead to the Department of immigration to save immigration fees I was a victim of circumstances.
I will request you to kindly consider compelling circumstances in my application.
Statement of the sponsor
Reference is made to your letter dated 15.12.2021 in which you have requested the comments to certain issues involved in visa application.
I would like to confess that there are some inconsistencies in my replies in the hearing of Migration Review Tribunal.
This is due to my confusion and fear of consequences of my extra marital relationship. I was confused at that time. I did not know what I should do. I was a student and I was a mother of a child. I had financial difficulties and I had to survive and look after my child. On top of all this there was a fear of family and community backlash.
Although my relationship had broken down with my husband [the applicant]. But [the applicant] (around September 2013) was still making efforts to live together. But it did not work because I had an active relationship with [Mr A] (the father of my child)
however the following information is correct and true:
I started a relationship with [Mr A] in the beginning of 2011.
I came to know that I was pregnant from [Mr A] in May 2011.
I had a son born from this relationship on [date supplied] 2012.
Sometime in September 2012 I informed the Department that my relationship with [the applicant] had ceased
As a result of this information, [the applicant]’s dependent (student visa) was cancelled.
There were lots of scuffles between me and [the applicant] and between [the applicant] and [Mr A].
Sometime in late March 2017 I break my relationship with [Mr A].
My son is suffering from ADHD.
I have a daughter born on [Date].
I have suffered a lot in my life I want to live a stable life I want to raise my children to become good Australian citizens. It would not be possible to do all this being a single mother.
I would request you to consider compelling circumstances in my husband’s visa application.

On 10 January 2022 the Tribunal received a statutory declaration prepared by the sponsor which stated:
I lodged my SC173 Parent visa application on 26.7.2013 and my SC143 visa application on 21.1.2016.
I was granted my SC143 visa on 20 March 2017.
At the time of lodging my Parent visa applications and on the date of grant of my parent visa, I did not have spousal relationship with [the applicant].
In between these dates [the applicant] tried to reunite with me but it did not work and we remained separated.
It is incorrect to assume that I intentionally did not include his name in the Parent visa applications. If I had genuine and continuing relationship during the above periods, I would have included his name in the Parent visa applications.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevantly to this case, cl 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include cl 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).
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.
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.
Regulation 1.20KA of the Regulations sets a limit on the period before which a certain person can sponsor another person for a Partner visa. Regulation 1.20KA applies where a Subclass 143 Contributory Parent or Subclass 864 Contributory Aged Parent visa holder, who was granted that visa on or after 1 July 2009, seeks to sponsor another person after that date. If the person to be sponsored for a Partner or a Prospective Marriage visa was the proposed sponsor’s spouse or de facto partner on or before the day the Subclass 143 or 864 visa was granted, a period of 5 years must have passed since the date the sponsor’s visa was granted.
These requirements apply unless there are compelling circumstances affecting the applicant: reg 1.20KA(3). Specifically, the visa applicant must either have had compelling reasons (other than financial) for not applying at the same time as the proposed sponsor for, a Subclass 143 or 864 visa; or if the visa applicant withdrew such an application, compelling reasons (other than financial) for withdrawing the application.
The overall issue in the present case is whether the sponsorship is to be approved under reg 1.20KA. That involves consideration of the following issues:
a)Does the sponsorship limitation in reg 1.20KA apply?
b)If so, does the applicant have compelling reasons, other than reasons relating to his financial circumstances, for not applying for a Contributory Parent visa at the same time as the sponsor applied for her visa?
Does the sponsorship limitation in reg 1.20KA apply?
There are a number of issues which must be considered in determining whether or not the limitation in reg 1.20KA applies in the circumstances of this application.
Was the sponsor granted a specified visa on or after 1 July 2009?
The applicant applied for a Subclass 820 Provisional Partner visa on 30 June 2017 on the basis of his relationship with the sponsor, who is the holder of a Subclass 143 Contributory Parent visa granted on 20 March 2017. The Tribunal is satisfied that the sponsor was an Australian permanent resident at the time of the applicant’s Partner visa application. In these circumstances the Tribunal finds that the applicant was sponsored at the time of application by the sponsor in accordance with cl 820.211(c).
Did the sponsor seek approval to sponsor the relevant applicant on or after 1 July 2009?
Online form, Sponsorship for a Partner to migrate to Australia, completed by the applicant was lodged with the Department on 30 June 2017. The applicant is a ‘relevant applicant’ as defined in reg 1.20KA(4), being an applicant for a Partner (Provisional) (Class UF) visa. Accordingly, the Tribunal finds that the circumstances set out in reg 1.20KA(1)(b) exist.
Was the sponsor the spouse or de facto partner of the relevant applicant on or before the day the specified visa was granted to the sponsor?
At issue is whether the applicant and sponsor were in a spousal or de facto relationship on or before the day the sponsor was granted a Subclass 143 Contributory Parent visa, that is, 20 March 2017.
The applicant and sponsor married in India in August 2006. They have remained legally married since that time.
In association with the current review, the applicant and sponsor claim that they were separated at both the time the sponsor applied for the Subclass 173 Contributory Parent visa on 26 July 2013 and the Subclass 143 Contributory Parent visa on 21 January 2016; and as well, the date upon which she was granted the Subclass 143 Contributory Parent visa on 20 March 2017. For the reasons discussed below the Tribunal does not accept this claim.
The applicant and sponsor have provided inconsistent evidence to the Department and Tribunals as to whether there was a period in which they separated and if so, with regard to the period in which they lived separately and as to when they reconciled their relationship.
In the Sponsorship for a partner to migrate to Australia form lodged 30 June 2017, in association with the applicant’s Partner visa application it is reported the sponsor became the de facto partner of [Mr A] on 1 July 2011 and that this de facto relationship ended on 15 August 2011. However, elsewhere in forms associated with the applicant’s Partner visa application it is claimed that he and the sponsor were in a committed relationship to the exclusion of all others, from 14 August 2006 until they separated in late 2013.
The applicant and sponsor have now conceded that there are inconsistencies in evidence about their relationship circumstances which was previously provided to the Department, the MRT and the RRT. In a statement prepared by the applicant in response to the s 359A letter, he claims that he was incoherent in evidence he provided when appearing before the MRT in 2013 and again during his appearance before the RRT in 2016. He said that this was because he could not relate to the questions he was asked and could not give consistent replies. In a statement prepared by the sponsor she contends that the inconsistencies in evidence provided by her to the MRT in 2013 were due to confusion and fear of consequences from her extramarital relationship. The s 359A response contains statements and information from both the applicant and sponsor which they claim are correct and true. Information from their statements which appears relevant to the provisions of reg 1.20KA is the claim that they separated at some time following the birth of [the child]. In his statement the applicant claims that the sponsor allowed him to live with her, but not in a spousal relationship, in September 2013 but that this did not work and that they separated again, before ‘rejoining’[4] in June 2017. A further statutory declaration provided by the sponsor on 10 January 2022 makes declarations to the effect that the parties separated prior to 26 July 2013 and remained separated until after 20 March 2017.
[4] The Tribunal has inferred by use of the term ‘rejoining’ the applicant means that there was a reconciliation in the parties’ relationship.
The Tribunal is not however persuaded the applicant has provided an adequate reason as to why the Tribunal should regard the information they have provided in the s 359A response to be true and correct. This is because the Tribunal is not persuaded the evidentiary concerns highlighted in the s 359A letter can be adequately explained by confusion, doubts, stress and personality outbursts affecting the applicant, or confusion and a fear of consequences from an extramarital relationship affecting the wife of the applicant. Rather, the Tribunal considers there to be a distinct lack of incoherency or confusion in evidence given by the parties when appearing before either the MRT or RRT. The Tribunal has formed the view that the applicant and sponsor have provided evidence which they perceived, depending on the particular visa-related circumstance the applicant was at that point in time facing, was in his best interests and advantageous to his claims. Examples, which are by no means exhaustive, of this include:
·Applying for a student visa, as a dependent member of the family unit of the sponsor, on 17 July 2013, a time the parties have elsewhere claimed the marital relationship had broken down and that they were living separately. Taken at face value this would suggest the applicant applied for this visa on the basis of information which was false and misleading;
·The applicant and sponsor subsequently claiming in September 2013 that they had at no stage lived separately and that there had been no breakdown in the marital relationship when seeking the restoration of the student visa, which was cancelled as a consequence of the claim the parties’ relationship had broken down. In the view of the Tribunal the parties, in relation to the review undertaken by the MRT, provided evidence which they perceived would assist the applicant in regaining a visa granted on the basis of a marital relationship they have elsewhere claimed was not at that time intact;
·At a later stage in May 2016 the applicant claiming the relationship with the sponsor had in fact broken down in 2012 and that he and the sponsor had not lived together again at any stage since June 2012. In the view of the Tribunal the applicant provided evidence to the RRT which, although contradicting claims he made before the MRT in 2013, he perceived would assist his protection claims;
·At yet a later stage in the s 359A response, the applicant claiming the parties lived separately, but under the same roof for a brief period around September 2013, coincidently corresponding to their appearance before the MRT, before again separating until reconciling in June 2017. With respect to claiming they were cohabiting for a period around September 2013, the Tribunal considers this to reflect an attempt by the applicant to explain evidentiary concern arising from responses given during the MRT hearing in September 2013 regarding the parties’ circumstances at that time;
·In the s 359A response the applicant claims that he and the sponsor ‘rejoined’ in June 2017. This in itself is inconsistent with claims he has previously made in his response to the natural justice letter sent to him by the Department, in which he claimed they had resumed their relationship some months earlier in April 2017.
- In the Sponsorship for a Partner to migrate to Australia form lodged 30 June 2017, in association with the applicant’s Partner visa application, it is reported the sponsor became the de facto partner of [Mr A] on 1 July 2011 and that this de facto relationship ended only six weeks later on 15 August 2011. However, in the forms associated with the applicant’s Partner visa application it is also claimed that the applicant and the sponsor were in a committed relationship to the exclusion of all others, from 14 August 2006 until they separated in late 2013.
- The Tribunal considers there to be an inherent contradiction in the claim to be in a committed relationship to the exclusion of all others for a period which encompasses the sponsor claiming to be in a de facto relationship with another person. There is also inconsistency with regard to when the parties claim they separated, with claims made by the parties ranging from June 2012 to late 2013. The Tribunal does not consider inconsistency with respect to such a significant event to be minor in nature.
- In contrast to the information provided in the Partner visa application forms, where it is claimed the relationship between the sponsor and [Mr A] ceased in August 2011, in the s 359A response it is claimed that it did not cease until March 2017.[5] The extent of the inconsistency in these claims could by no stretch be regarded as minor and in the view of the Tribunal reflects a further example of information being put forward which the applicant perceives to be advantageous to him. With the perceived advantage being that if the sponsor had remained in a de facto relationship with [Mr A] up until March 2017, it would support the contention the parties’ spousal relationship was intact on the dates which are relevant for consideration in relation to reg 1.20KA.
The Tribunal accepts that there was a breakdown in the marital relationship between the applicant and sponsor for a period of time following the birth of [the child], but is not satisfied evidence given by either the applicant or sponsor with regard to their relationship history, including the date of separation and reconciliation, can be regarded as reliable. In relation to the issue of their credibility, the Tribunal finds the applicant and sponsor are not witnesses of truth.
As a consequence of the Tribunal not having confidence that information given by the parties in association with the Partner visa application is reliable, with respect to their relationship history, the Tribunal has considered the extent to which other available evidence sheds light on their circumstances during periods relevant to the provisions of reg 1.20KA.
Insofar as evidence regarding the parties’ residential address history reflects usefully on their relationship circumstances at relevant times, the Tribunal has noted that a Tenant Trust Ledger with respect to a rental property in [Street 1, Suburb 1], NSW identifies the sponsor by name and encompasses rental payments over a period from 8 August 2013 to 13 September 2018. A residential tenancy agreement, presumably renewing the lease as it falls within the aforementioned period covered by the Tenant Trust Ledger, signed on 20 April 2017 indicates the [Street 1] property was leased in the name of the sponsor for the period of 25 May 2017 to 23 May 2018.
The [Street 1] residential address is identified in relation to:
·    an [electricity] account in the name of the sponsor, at the time the account was opened in July 2013 and also in a statement covering the March 2018 to June 2018 period;
·    a psychology report [dated] 10 September 2017, reports the parties and [the child] reside at the [Street 1] address;
·    a [Bank 1] account statement in the name of the applicant, covering the August 2018 period;
·    [internet] account in the applicant’s name covering the August 2018 period;
·    [Bank 2] account in joint names covering the May 2018 to July 2018 period;
·    prenatal test report and antenatal reports, dated August 2018;
·    the [Street 1] address was provided as the applicant’s address at the time of application for the Partner visa in June 2017 and at the time he lodged the review application in December 2018.
The birth certificate for [the child], issued in June 2013 provides an address for the sponsor at that time in [Street 2, Suburb 1], NSW. A DNA test report, dated 4 April 2013 is addressed to the sponsor at the address in [Street 2, Suburb 1].
A letter to the applicant from the Department, dated 2 October 2013, is addressed to a [Suburb 2], NSW address.
A [Bank 1] account statement in the applicant’s name, pertaining to the period 26 April 2014 to 16 May 2014 is addressed to the applicant at an address in [Street, Suburb 3], NSW.
The birth certificate for [Child 2], issued in [year], provides an address for both the applicant and the sponsor in [Street, Suburb 4], NSW.
A written statement from the applicant’s wife, dated 9 December 2021, states the parties lived at an address in [Suburb 2], NSW from July 2010 till January 2012 and then moved to an address in [Suburb 5], NSW until the applicant arranged for alternate accommodation for her in [Street 2, Suburb 1] in January 2013. She states she then moved to the [Street 1] address in October 2013.
In considering the evidence of residential address history in documents provided with the visa and review applications, the Tribunal notes that to a degree they appear to support the sponsor’s claims as to where she has resided. There is some variance with respect to when she had moved to the [Street 1] address, as third-party documents suggest she leased and opened utility accounts in relation to this property some months earlier than she has recently claimed. The move from the [Suburb 2] address, where she resided at the time it is claimed she became the de facto partner of [Mr A] in January 2012 in the view of the Tribunal is consistent with the information previously provided that it was a short-term relationship only, which ceased around August 2011, rather than as more recently claimed in March 2017.
The applicant’s claim he arranged for DNA testing to establish the parentage of [the child] a few months after his birth in 2012 is not, in the view of the Tribunal supported by credible third-party evidence. The Tribunal prefers the information provided by the DNA test results, which indicate the tests were assessed in March 2013 and the results provided by way of a letter dated 4 April 2013. The Tribunal does however note that the applicant has claimed he did not separate and live separately from the sponsor until after these results were known and considers this claim to be plausible. In the view of the Tribunal this therefore suggests that up until April 2013 the applicant and sponsor resided together at the [Street 2] address.
The Tribunal considered the contention the parties then separated, but the applicant temporarily moved back in with the sponsor in a context where they lived separately but under the same roof for a brief period from September 2013, before again deciding to live in different households. There is extremely limited probative third-party evidence which shows where the applicant was residing prior to the claimed reconciliation between the parties in June 2017. There is one document which shows the residential address used by the applicant in April 2014 which provides an alternative address for the applicant, namely a [Bank 1] account sent to an address in [Suburb 3], which does provide support to a contention the parties were living separately at that time.
In considering the overall evidence regarding the parties’ residential history, the Tribunal considers that there is some support to the claim that they lived separately for a period of time, most likely encompassing a period after September 2013 until at least April 2014. The Tribunal notes that this is not consistent with the sponsor’s recent claim that she was residing separately from the applicant when she lodged an application for the Subclass 173 Contributory Parent visa in July 2013, which in the view of the Tribunal raises further concern with regard to claims made by the parties in support of the applicant’s Partner visa application.

With respect to the situation on or before the sponsor applying for the Subclass 143 Contributory Parent visa on 21 January 2016, the Tribunal finds there is no reliable probative evidence which establishes where the applicant was at that time residing. In any event, in the circumstances, where the parties were married in 2006 and have not since that time divorced, they can remain in a spousal relationship provided they do not reside separately on a permanent basis and there is no suggestion the parties are not residing together at the present time.
A report from [a doctor] dated 12 September 2017, reports that based on his observations there is a very bonded father/son relationship between the applicant and [the child]. The psychology report [does] not indicate a specific period of marital separation was reported to him, but that what was reported to him was that the parties separated as a result of the extramarital affair of the applicant’s wife and parentage of [the child] was discovered by the applicant and that they mutually decided to reunite after a period of years. The psychologist noted comments from [the child] to the effect that ‘Daddy never leaves me’ and expressed the opinion that the applicant presented as the critical male caregiver to [the child] since the child’s birth. To the extent this reflects on the circumstances of the parties’ relationship, the Tribunal accepts this evidence and considers this to demonstrate the applicant and sponsor have shared responsibility for the care and support of [the child] for the majority of time since his birth.
There is a photo of the parties celebrating [the child]’s birthday together [in] 2017 and other photos of the parties together at events in which they appear relaxed and happy in each other’s company. In light of their being a lack of photographic evidence which would suggest otherwise, the Tribunal finds the available photographic evidence includes indicators that the applicant and sponsor planned and undertook social activities together. As to whether they presented on such occasions as a couple in a spousal relationship, given they remained at this time legally married the Tribunal considers this to be a reasonable conclusion to draw.
In relation to witness support declarations provided with the visa application, the Tribunal notes that those prepared in the May to July 2017 period either do not specify when the parties separated and reconciled,[6] or provide various imprecise dates such as the separation occurred ‘4–5 years ago’[7] thereby in 2012 or 2013, or ‘about 5 or 6 years ago’[8] thereby in 2011 or 2012. Of interest, a declaration prepared in May 2017[9] attests to the parties being in a genuine relationship following their reconciliation prior to the date on which the applicant has claimed the relationship resumed in June 2017 and only a month or so after the sponsor has claimed her relationship with [Mr A] ceased in March 2017. There is consistent reference in most of these declarations to a period in which the declarant had no contact with either the applicant, or the sponsor, following the parties separating, presumably reflecting who the declarant was primarily connected to, but that regular contact resumed in 2016. The exception to this is a second declaration from [Ms C], prepared on 6 December 2021, in which in contrast to the declaration prepared earlier to the time in question, she declares the parties separated in 2012 and reunited in 2017.
[6] Statutory declaration of [named person], dated 8 July 2021
[7] Statutory declaration of [Ms C], dated 5 September 2017
[8] Statutory declaration of [Mr B], Statutory declaration of [named person], dated 8 July 2017
[9] Statutory declaration of [named person], dated 24 May 2017
With respect to the witness support declarations, the Tribunal has not placed weight on the more recent declaration from [Ms C], as it considers the earlier declaration from her provides a more reliable reflection of the views she held at a time closer to the circumstances she has commented on. Insofar as they reflect on factors relevant to reg 1.20KA, the Tribunal finds the witness support declarations do not provide clear details as to the duration of the parties’ separation and that the majority of declarants attest to social contact with the applicant and sponsor taking place in the 2016 period. The Tribunal further finds that there is evidence of views held by the declarants that there was a healthy degree of companionship in the relationship between the applicant and sponsor.
On the basis of the available evidence which the Tribunal considers reliable, the Tribunal finds the applicant and sponsor were married [in] August 2006 and have remained so since that date. When the evidence which the Tribunal considers probative is considered as a whole, the Tribunal is not persuaded the parties’ spousal relationship at any stage ceased. The Tribunal accepts that during the marriage the sponsor had a brief relationship with another man, resulting in her falling pregnant and that some time following the birth of the child from that pregnancy, the parties separated for a period before reconciling. The Tribunal does not consider such a circumstance inevitably results in the cessation of a spousal relationship. The Tribunal accepts the applicant and sponsor experienced a period of relationship instability following on from the applicant finding out about his wife’s infidelity and the parentage of her first-born child. The Tribunal accepts that the parties resided separately for a period of time, but finds they have not during the course of their marriage resided separately and apart on a permanent basis. The Tribunal does not consider a period in which a couple experiencing relationship difficulty residing separately establishes their marriage had broken down. The Tribunal finds the applicant and sponsor have shared the responsibility for the care and support of the child born of the sponsor’s brief relationship with another man and of the parties’ child, born in [Year]. With respect to the financial aspects of their relationship, the Tribunal makes no findings due to insufficient documentary evidence in relation to this aspect during the period relevant to reg 1.20KA. In relation to the social aspects of their relationship, the Tribunal finds the applicant and sponsor have undertaken social activities together at times during their claimed period of separation, and with respect to the commitment aspect of their relationship, the Tribunal finds there is evidence of their providing support and companionship to each other over a period which encompasses 2016. The Tribunal is satisfied there is no evidence before it which is contrary to the aforementioned findings, with the exception of evidence provided by the applicant and sponsor, which the Tribunal considers unreliable.
The Tribunal has carefully considered the provisions of reg 1.20KA and finds that the applicant and sponsor were spouses on or before the day the sponsor was granted the specified visa, the Subclass 143 Contributory Parent visa. This is because the Tribunal is not satisfied the reliable evidence in the particular circumstance of this case establishes that the parties’ marriage and spousal relationship has at any stage ceased.
Has the 5-year limitation period passed?
The sponsor’s Subclass 143 Contributory Parent visa was granted on 20 March 2017. The Tribunal finds that the 5-year limitation period set out in reg 1.20KA(2) expires 20 March 2022. At the date of this decision, reg 1.20KA(2) prevents the sponsorship by the sponsor of the applicant from being approved.
Did the applicant have compelling reasons, other than reasons relating to his financial circumstances, for not applying for a Contributory Parent visa at the same time as the sponsor applied for her visa?
As the Tribunal has found that the sponsor is subject to sponsorship limitations, it is necessary to consider whether the applicant had compelling reasons other than financial reasons for not applying for the Subclass 143 Contributory Parent visa at the same time as the sponsor’s application.
The expression ‘compelling reasons’ is not defined in the legislation and has not been considered in the context of reg 1.20KA sponsorship limitations. However, judicial consideration of the expression ‘compelling circumstances’ in the context of the reg 1.20J sponsorship limitation indicates that whether there are compelling circumstances affecting the sponsor is a matter of fact and degree requiring the Tribunal to 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.
The applicant contends a compelling reason to not apply the limitation period is that he and the sponsor were separated and were not in a continuing committed relationship with each other when the sponsor applied for a Contributory Parent visa on 21 January 2016. He essentially claims if he was not in a committed relationship with the sponsor at the time she applied for the Contributory Parent visa, her capacity to sponsor him, now that they have reconciled, should be not be assessed as though they were in a relationship with each other in January 2016.
On the basis of the evidence which the Tribunal considers reliable, it is not satisfied the applicant was separated from the sponsor in January 2016 and does not accept that this provides a compelling reason for not applying for a Contributory Parent visa at the same time as the sponsor applied for her visa. Whilst the Tribunal acknowledges the somewhat unusual circumstances of this case, where the person who sponsored the applicant’s wife for her Contributory Parent visa was [Mr A], there is no suggestion this was on the basis of their being in a de facto or spousal relationship at the time of her application for the visa.[10]
[10] In relation to Contributory Parent visas, if the child has not turned 18 the sponsor may be the child’s cohabiting spouse, a relative or guardian of the child or his or her cohabiting spouse, or a community organisation
As to other reasons put forward by the applicant the Tribunal makes the following comment.
In documents provided to the Department, including by the parties and witness declarants, the applicant’s fear of returning to India as a consequence of the circumstance whereby his wife had a child with another man and the parties separated is emphasised. Articles referencing country information regarding India which the applicant contends are relevant to this factor have also been provided to the Department and Tribunal. The Tribunal has considered this information and the applicant’s claims with respect to this factor and is not satisfied that they provide a compelling reason for not applying for a Contributory Parent visa at the same time as the sponsor applied for her visa.
The submissions from the applicant’s representative, dated 10 December 2021, submit that the sponsor could not include the applicant on her Contributory Parent visa application because [her child] was not fathered by the applicant. Irrespective of cultural attitudes in the parties’ home country to such a circumstance the Tribunal does not accept this factor provides a compelling reason for the applicant not applying for the Contributory Parent visa at the same time as the sponsor applied for her visa. This is because the sponsorship of the sponsor for the Contributory Parent visa was not contingent on her being in a spousal or de facto relationship with [Mr A], it was enough that she had a parental connection to [the child]. There is no reliable evidence to establish the sponsor and [Mr A] were in a de facto or spousal relationship at the time the sponsor applied for the Contributory Parent visa and the Tribunal is not persuaded the applicant and sponsor were separated, or that their marital relationship had broken down at either the date on which she applied for the Subclass 173 Contributory Parent visa, or the Subclass 143 Contributory Parent visa. A consequence of these findings is that the Tribunal is satisfied that it was open to the applicant to apply for the visa as a member of the family unit of the sponsor, in a similar manner to which he had applied for a number of previous visas.
The Tribunal is also not persuaded the sponsor’s fear of consequence in her home country as a consequence of applying for a visa in circumstances where her extramarital affair may become known in her home country provides a compelling reason, as she applied for this type of visa. That is, any such potential consequence for her in her home country is not avoided by not including the applicant in her visa application.
The Tribunal has been provided with an article precis regarding research into child homicide and stepparents in the United Kingdom. The representative submits that the sponsor held a fear that the applicant may harm [the child], his stepchild and suggests the aforementioned article referring to research in the United Kingdom supports such a concern. The Tribunal does not accept this claim and notes that it is not apparent in any of the documentation associated with the visa application and review that the sponsor has expressed any such fears or concerns. To the contrary the close and abiding positive relationship between the applicant and [the child] is commented on repeatedly in declarations, statements and the available psychology reports. The Tribunal finds the representative’s submissions in relation to this factor are not based on any evidence that is before the Tribunal and the Tribunal has given no weight to this factor.
There is medical evidence that [the child] has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). The representative submits that the sponsor did not want to exacerbate [the child]’s condition by living with the applicant. The representative refers to medical evidence provided by a paediatrician and psychology reports in support of this contention. The Tribunal has reviewed the available evidence, including statements made by the parties and the health professional reports and finds the representative’s contention is not reflected in this evidence and the Tribunal places no weight on this claim.
As to whether the impact on the sponsor, [the child] and his younger [sibling], as a consequence of the applicant’s Partner visa application being refused provides a compelling reason, the Tribunal acknowledges there could be a significant impact from this outcome. However, this is not the question relevant to reg 1.20KA. As referred to above the waiver ground relevant to this matter is whether the applicant had compelling reasons, other than reasons relating to his financial circumstances, for not applying for a Contributory Parent visa at the same time as the sponsor applied for her visa.
Assessment of compelling reasons
The Tribunal has considered all of the reasons put forward by the applicant, his sponsor, other witnesses and his representatives and finds that they do not give rise, separately or cumulatively, to the applicant having compelling reasons, other than reasons related to his financial circumstances, for not applying for a Contributory Parent (Subclass 143) visa at the same time as the sponsor. The Tribunal is not satisfied that the conditions in reg 1.20KA(3)(a) are met and finds that reg 1.20KA(3)(b) does not apply. Accordingly, the Tribunal finds that reg 1.20KA(2) prevents the sponsor’s sponsorship from being approved at the time of this decision.
There is no evidence before the Tribunal that the applicant meets any of the alternate criteria.
On the evidence before the Tribunal the requirements of cl 820.211(2)(c) and cl 820.221 are not met.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
David Barker
Member

[2022] AATA 452

18 January 2022

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