1901805 (Migration)

[2021] AATA 1139

1901805 (Migration) [2021] AATA 1139 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1901805

MEMBER:Paul Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 February 2021 at 2:00 pm (WA time)

DATE OF WRITTEN RECORD:                9 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets criteria

· cl 820.211(2) of Schedule 2 to the Regulations.

·     Regulation 2.03A

· cl 820.221(1) of Schedule 2 to the Regulations

for a Subclass 820 (Partner) visa.

Statement made on 09 March 2021 at 9:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – partner of an Australian citizen – compelling reasons to waive Schedule 3 criteria – prohibited from being a sponsoring partner – child of the relationship – pooled financial resources – child’s medical conditions – decision under review remitted           

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, rr 1.09A, 1.15A, 2.03A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001

CASES
Bretag v MILGEA [1991] FCA 755

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.

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 January 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2.    At the hearing on 19 February 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3. The Tribunal remits the application for a partner temporary class UK visa, the direction that the applicant meets criteria in clause 820.211(2) of schedule 2 to the regulations, regulation 2.03A, and clause 820.221(1) of schedule 2 to the regulations, for a subclass 820 partner visa.

4. [The applicant] applied for the visa on 12 October 2017 on the basis of his relationship with his sponsor, [named]. At the time, class UK contained only one subclass, an 820 partner visa. The criteria for the grant of the visa is set out in part 820 of schedule 2 to the Migration Regulations. The primary criteria must be satisfied by [the applicant] as the only applicant.

5.    The delegate refused to grant the visa on the basis that [the applicant] did not satisfy clause 820.211(2)(a) or (d) because the delegate was not satisfied [the applicant] was the spouse or de facto partner of his sponsor or that [the applicant] satisfied the schedule 3 criteria. 

6.    [The applicant] appeared before the Tribunal today and gave evidence and presented arguments.  The Tribunal also heard oral evidence from his sponsor, [named].  [The applicant] was represented in relation to the review by his registered migration agent.

7.    The evidence before the Tribunal comprised the department’s files containing the visa application, sponsorship form and evidence received by the department in respect of the application.  From the department’s files, the parties claim to have first met in July of 2016 and commenced a de facto relationship in August 2016 when they committed to a shared life together to the exclusion of all others.  The visa application and sponsorship forms were lodged on 12 October 2017.

8.    [The applicant] gave the Tribunal a copy of the delegate’s decision record with his application for a review.  The delegate’s decision record summarised his immigration history.  [The applicant] arrived in Australia as a holder of a student visa [in] March 2015.  His student visa was cancelled on 26 September 2016 because he did not commence a course of study.  [The applicant] applied for a [permanent] visa on 5 October 2016 and was granted a bridging visa C in association with that application on 13 October 2016.

9.    [The applicant] lodged a partner visa application subject to this review on 12 October 2017.  The department refused [the applicant]’s [permanent] visa application on 21 December 2018.  [The applicant] applied to the Tribunal, which is differently constituted to the Tribunal today, for a review of the refusal of his [permanent] visa application and remained the holder of a bridging visa C pending the Tribunal’s decision in respect of the [permanent] visa review.

1. Prior to the hearing, the Tribunal received an outline of submissions prepared by [the applicant]’s representative, copies of joint accounts, a copy of [the applicant] and [the sponsor]’s marriage certificate, lease agreements and rental invoices, copies of utility and mobile phone bills and documents confirming the birth of their child and various family photos.  [The applicant] and [the sponsor] gave evidence at the hearing.  The Tribunal finds them both to be candid in their evidence and credible and honest witnesses.  The Tribunal accepts their oral evidence on that basis.  The Tribunal has considered their oral evidence together with the documentary evidence to reach the findings below.

2. The criteria for a subclass 820 visa are set out in part 820 of schedule 2 to the Migration Regulations. Relevantly, clauses 820.211(2)(a) and 820.211(2) require that at the time of the visa application and at the time of this decision [the applicant] is the spouse or de facto partner of an Australian citizen and that the sponsor is not prohibited from being a sponsoring partner under clause 820.211(2B). [The applicant] claims to have been the de facto partner of [the sponsor] at the time of the visa application and to have subsequently married and is now the spouse of [the sponsor] at the time of this decision.

3. De facto partner is defined in section 5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, their relationship is genuine and continuing and they live together or not separately and apart on a permanent basis and are not related by family.

4. Spouse is defined in section 5F of the Act and provides that a person is a spouse of another person where they are in a married relationship.  Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing and they must live together or not separately and apart on a permanent basis.

5. In forming an opinion about whether somebody is in a de facto partner or spouse relationship, the Tribunal is required to consider matters that are outlined in regulation 1.15A(3) and 1.109A(3).  These matters are the financial and social aspects of the relationship, the nature of the household and commitment the people share with each other.  Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in regulation 2.03A, that is, that they are both at least 18 years of age and have been in a de facto relationship for at least a period of 12 months prior to making the visa application.

6. Clause 820.211(2)(c) requires the applicant to be sponsored by their spouse or de facto partner if the spouse or de facto partner has turned 18.  Additionally, the applicant must be the holder of a substantive visa at the time of the application or meet other requirements as required in clause 820.211(2)(d).

7. It follows the issues to be determined by the Tribunal are whether [the applicant] and [the sponsor] met the de facto criteria at the time of the visa application. Those criteria are whether the requirements for a de facto relationship were met and whether the additional criteria for a de facto relationship was met, those being, were they both over 18 and been in a relationship for more than 12 months.

8. Another issue for the Tribunal is whether the sponsor is prohibited from being a sponsoring partner and whether the applicant is sponsored and, lastly, whether [the applicant] held a substantive visa at the time of the application or whether there are compelling reasons to waive that criteria.  In order to meet the time of decision criteria, the Tribunal has to be satisfied that [the applicant] and [the sponsor] are validly married and the requirements of the spouse relationship is met and continue to be so at the time of the decision.

9. The Tribunal is satisfied that [the sponsor] is an Australian citizen.  The Tribunal considered the matters in regulation 1.09 and regulation 1.15 to decide if the requirements for a de facto and/or spouse relationship are met.  The Tribunal considered the financial aspects of [the applicant] and [the sponsor]’s relationship.  The Tribunal received a copy of the parties’ joint bank account ending in 4155 for the period from 31 December 2018 to 30 December 2020.  The account shows various payments for day-to-day expenses such as bills, groceries and entertainment.  [The applicant’s] income goes into that account and [the sponsor] is not presently employed.  The Tribunal also received copies of a joint savings account ending in 4120 that [the couple] use to save money essentially for the deposit on a house.  The Tribunal acknowledges that savings account has also been used to pay for expenses for their joint benefit, such as the visa application fee and for IVF treatment.

10. [The applicant] submits via his representative’s submission that they live a modest life and have limited resources.  They do not have any joint assets or liabilities or their joint or individual names.  There is no evidence before the Tribunal that [the couple] have joint ownership of assets, joint liabilities or any joint (indistinct) owed by each other to the other party.  [The couple] pooled their modest financial means by use of the joint account and share their day-to-day household expenses.  The financial aspects of [the applicant] and [the sponsor]’s relationship are indicative of a couple in a de facto or spousal relationship.

11. The Tribunal considered the nature of the applicant [the applicant] and [the sponsor]’s household.  [The applicant] and [the sponsor]’s son was born on [date] as evidenced by his birth certificate.  Their son was born with significant medical conditions that have prevented [the sponsor] from returning to work.  Both [the applicant] and [the sponsor] are responsible for the day-to-day care of their son and for his welfare.  [The couple] share the household chores, including cooking, cleaning and ironing.  [The sponsor] does most of the household chores because [the applicant] is required to work to support the family.  The Tribunal is satisfied the nature of [the couple]’s household is indicative of a couple in a spousal or de facto relationship.

12. The Tribunal considered the social aspects of [the couple]’s relationship.  The Tribunal received copies of newspaper articles, family photos, Centrelink documents and lease documents.  The delegate noted a number of statutory declarations from their friends and acquaintances confirmed that [the couple] represented themselves and were considered to be a couple.  [They] represent themselves as a couple to financial institutions, government agencies, their friends and acquaintances.  They are considered to be a de facto or spousal couple with each other by their families and friends.  The Tribunal is satisfied the social aspects of [the applicant] and [the sponsor]’s relationship is indicative of a couple in a de facto or spousal relationship.

13. The Tribunal considered the nature of [the couple]’s commitment to each other.  The Tribunal accepts [the couple] have been in a relationship with each other since the later part of 2016.  They have lived together as a de facto partner since their de facto relationship commenced in August 2016.  They love each other and support each other during their son’s extensive medical treatment.  [The applicant] continues to work full time to provide for his family and to meet the financial and emotional challenges they are both going through.  The Tribunal is satisfied the nature of [the applicant] and [the sponsor]’s commitment to each other is indicative of a couple in a de facto or spousal relationship.

14. The Tribunal has had regard to all the circumstances of [the applicant]’s and [the sponsor]’s relationship, including the matters at regulation 1.09A(3) and regulation 1.15A which it is required to have regard to.  The Tribunal is satisfied that [the applicant] and [the sponsor] were in a de facto relationship at the time of the visa application.  In this regard, the Tribunal may have and has had regard to later events and evidence in relation to the earlier point in time, as the later events tend logically to show the existence of the facts that existed at the time of their application, and the principle for that is contained in the Federal Court matter of Bretag v The Minister for Local Government and Ethnic Affairs from 1991.

15. I have considered the matters in regulations 1.09A(3) and regulation 1.15A(3) and the Tribunal finds [the applicant] and [the sponsor] have a mutual commitment to a shared life to the exclusion of others, their relationship is genuine and continuing and they live together.  The Tribunal is also satisfied that [the applicant] and [the sponsor] are not related by family.  On the basis of the above findings, the Tribunal is satisfied that the requirements of section 5CB(a) to (d) and 5F(2)(b) to (d) are met.

16. If the parties are married, they may meet the requirements for a married relationship but not a de facto relationship.  The Tribunal received a copy of [the applicant]’s marriage certificate showing he and [the sponsor] married in March 2018.  There is nothing before the Tribunal to suggest that the marriage is not valid.  On the evidence, at the time of this decision, the parties are married to each other under a marriage that is valid for the purposes of Act as required by section 5F(2)(a) of the Act. 

17. On the basis of the earlier findings, the Tribunal is satisfied that the requirements of section 5CB and 5F(2) are met at the time the visa application was made and at the time of this decision.

18. In relation to the time of application requirements that a de facto relationship for a partner visa must also meet the criteria in regulation 2.03A, the Tribunal finds that both [the applicant] and [the sponsor] were at least 18 years old at the time of the application.  The Tribunal also accepts, taking into account the principles in the earlier mentioned matter of Bretag, that the facts of the case logically show the existence of [the applicant] and [the sponsor]’s relationship from August 2016.  The Tribunal is satisfied that the [applicant] and the [sponsor], were in a de facto relationship for at least 12 months before the date of their application.  For these reasons, the tribunal is satisfied that [the applicant] meets the additional criteria prescribed in regulation 2.03A.

19. There is no evidence before the Tribunal that the [sponsor] is prohibited by clause 820.211(2B) from being a sponsoring partner and [the applicant] meets the requirements of clause 820.2.11(2)(a).  [The sponsor] has completed the requisite sponsorship form and made the required undertakings and the Tribunal accepts that [the applicant] is sponsored and so meets clause 820.211(2)(c). 

20. The remaining issue before the Tribunal is whether [the applicant] meets the criteria in clause 820.211(2)(d), which is whether he satisfied the schedule 3 criteria or whether there are compelling reasons for not applying those criteria.  Having regard to the information held on the department’s file, the Tribunal finds [the applicant] last held a substantive visa when his student visa was cancelled on 26 September 2016.  This is the relevant day as defined in criterion 3001(2)(c)(i) of the schedule 3 criteria.

21. In order to satisfy criterion 3001 of the schedule 3 criteria, the application for the visa must have been lodged within 28 days of the day [the applicant] last held a substantive visa.  [The applicant]’s application for the partner visa was made on 12 October 2017.  The Tribunal finds the application was made more than 28 days after the relevant day, which is the day [the applicant] last held a substantive visa.  As the visa application was not made within 28 days of the relevant day, [the applicant] does not satisfy criterion 3001 of the schedule 3 criteria.

22. The Tribunal is required to consider if there are compelling reasons for not applying the schedule 3 criteria.  The expression “compelling reasons” is not defined.  Reasons that are compelling should force or drive the decision-maker irresistibly to make its decision.  The reasons or circumstances should be sufficiently powerful to lead the decision-maker to find that the criteria should not be applied.  Circumstances which constitute compelling reasons for not applying the schedule 3 criteria can arise at any time, including after the visa application is made, and there are a number of court precedents that support those comments.

23. The Tribunal accepts on the evidence of [the applicant] and [the sponsor] they have been in a long-term relationship since August 2016. Their relationship was initially a de facto relationship and they subsequently got married in March 2018.  Their son was born with extensive medical requirements and has Down syndrome.  He requires full-time care and support of both his parents.  [The applicant] and [the sponsor] share the care of their son, who requires daily massage and therapy.  Their son requires frequent attendance with medical specialists and can need medical attention at any time.  As their son requires full-time care, [the sponsor] is unable to resume employment and relies on [the applicant] for financial support, emotional support and physical support in the upbringing of their son.

24. The Tribunal finds the duration of [the applicant] and [the sponsor]’s relationship is long term and is a compelling reason for not applying the Schedule 3 criteria.  Additionally, if in any doubt, the impact financially and emotionally on both [the applicant] and [the sponsor] is a compelling reason for not applying the Schedule 3 criteria, and, perhaps most importantly, to deprive [the applicant]’s son of the care and support of his father for the time it might take for an application offshore to be made and approved is not reasonable in the Tribunal’s opinion, and is a compelling reason for not applying the Schedule 3 criteria.  The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria and accordingly [the applicant] meets the criteria at clause 820.211(2)(d)(ii).

25. For those reasons, [the applicant] meets the criteria in clause 820.211(2).  The Tribunal is satisfied that [the applicant] continues to meet the criteria in clause 820.211(2) at the time of this decision and, for that reason, meets the criteria in clause 820.221 at the time of this decision.

26. Given those findings, the appropriate course is to remit the application for the visa to the minister to consider the remaining criteria for a subclass 820 visa.  That is the end of my reasons. 

P. Maishman
Member