1906022 (Migration)
[2025] ARTA 914
•25 February 2025
1906022 (MIGRATION) [2025] ARTA 914 (25 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1906022
Tribunal:General Member G Bartley
Place:Sydney
Date: 25 February 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 25 February 2025 at 1:03pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship before relationship ceased – validly married – financial, household and social aspects of relationship and nature of commitment – limited, contradictory and unreliable evidence not consistent with genuine relationship – sponsorship withdrawn and retracted twice – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – visa history, including unsuccessful protection visa application and period as unlawful non-citizen – judicially-determined claim of family violence – final ADVO issued – psychologist’s report obtained to support claim – new relationship – sole breadwinner and father figure to partner’s children, including one with developmental disorders – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359A, 375A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), (d)(ii), 820.221(d)(ii), (3), Schedule 3, criterion 3001CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Waensila v MIBP [2016] FCAFC 32Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
ISSUES
The first issue in this review is whether [the applicant] was in a genuine and continuing spouse relationship with [his sponsor] as defined in s 5F of the Migration Act 1958 (Cth) (the Act) prior to the relationship ceasing. The second issue is whether the applicant meets the requirements in Schedule 3 of the Migration Regulations 1994 (Cth) (the Regulations), or there are compelling reasons for not applying those criteria. The third issue is whether the applicant has experienced family violence committed by the sponsor.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Act.
The applicant applied for the visa on 29 June 2017 on the basis of his relationship with the 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 Regulations. The primary criteria must be satisfied by at least one applicant. Relevantly to this matter, the primary criteria include cl.820.211 and cl.820.221 which require that at the time of application and decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has experienced family violence committed by the sponsor. The applicant claims this occurred in his case.
The delegate refused to grant the visa on 4 March 2019 on the basis that the applicant did not meet cl.820.211(2)(a) and cl.820.211(2)(d)(ii) of the Regulations. The delegate was not satisfied that the applicant was the spouse of his sponsor, as defined in s 5F of the Act, at the time of application. Additionally, the delegate was not satisfied that there were compelling reasons for not applying the Schedule 3 criteria.
On 14 March 2019, the applicant applied to the AAT for review of the delegate’s decision.
The applicant’s representative advised the Tribunal registry on 30 July 2024 that the relationship between the applicant and the sponsor had broken down and that the applicant had been the victim of family violence committed by the sponsor.
The applicant appeared before a differently constituted Tribunal on 6 August 2024 by video conference to give evidence and present arguments. Two witnesses; [Mr A] and [Mr B], attended the hearing by video conference and gave oral evidence in support of the application.
On 22 October 2024, the matter was reconstituted to a different member.
The applicant appeared in person before the newly constituted Tribunal on 19 February 2025 to give oral evidence and present arguments.
The applicant was represented in relation to the review by his solicitor who attended both Tribunal hearings. The applicant’s barrister, Mr Nicholas Poynder, attended the first hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a [Age]-year-old citizen of India. He has not declared any previous marriages or de facto relationships. The applicant’s father is deceased. His mother and younger brother live in India. The applicant is employed on a full-time basis as [an occupation]. The applicant first travelled to Australia in March 2010 after being granted a Student visa (Subclass TU 572). He was granted a further Student visa and then applied for a Protection visa. The applicant’s Protection visa application was refused by the Department and the decision was subsequently affirmed by the Refugee Review Tribunal. The applicant’s Bridging visa ceased on 11 May 2016, and he remained in Australia as an unlawful non-citizen until he lodged the current application on 29 June 2017 and was granted a Bridging visa.
The sponsor is a [Age]-year-old Australian citizen by grant. She was born in [Country 1] and migrated to Australia in August 2019 after being granted a Partner (Provisional) visa (Subclass 309), sponsored by her first husband. The sponsor’s relationship with her first husband ended in divorce in 2012, and there were no children from that relationship. The sponsor’s parents and three of her siblings live in [Country 1]. One brother lives in [Country 2].
The applicant and the sponsor (the parties) stated in the application that they first met in December 2016 at a cafe in the Sydney CBD. They became engaged in April 2017 and were married at [Suburb 1] [in] June 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
Prior to the first hearing, the applicant’s representative submitted additional documents to the Tribunal to support the application, including but not limited to the following: a chronology of relevant events by the applicant’s representative, photographs, documents regarding a car accident on 1 November 2019, correspondence sent to the parties at mutual addresses, a life insurance policy in the parties’ joint names, joint bank account statements, an undated psychology report regarding the applicant by [Mrs C], various documents regarding the parties’ contact with NSW Police, a Final Apprehended Domestic Violence Order protecting the applicant from the sponsor, dated [May] 2021, a Court Order Notice, dated [May] 2021, a statutory declaration by the applicant, and a witness statutory declaration by [Mr B].
In making my decision, I have had regard to the documents in the Department and Tribunal files and the oral evidence at both hearings.
As discussed at the hearings, there is a certificate issued under s 375A of the Act on the Department file relating to the parties’ marriage celebrant and contact between the sponsor and the Department. The certificate is incomplete and unsigned. I agreed with the submissions from the applicant’s representative that the certificate is invalid. Consequently, I provided a copy of the material to the applicant’s representative at the second hearing and invited her to respond. The applicant’s representative submitted that the information provided by the sponsor to the Department supports the applicant’s case that the parties were living together as spouses in a genuine and continuing relationship prior to the breakdown of the relationship. As discussed at the hearing, I did not place any weight on the concerns outlined in the Department file regarding the parties’ marriage celebrant as I did not consider that information to be relevant to the issues to be determined. There was limited detail provided, including whether or not there was an investigation into the marriage celebrant and, if so, what the outcome was.
The applicant gave oral evidence at both hearings that he was involved in a car accident on 1 November 2019 and that the sponsor was present in the car when he had the accident. The applicant stated during the second hearing that the parties were going out to lunch, and he described the sponsor’s reaction in some detail, including that she started crying. In the chronology of relevant events submitted by the applicant’s representative to the Tribunal, the representative said that on 1 November 2019 the applicant was “…involved in a car accident in [Suburb 2] while [the sponsor] [was] present…” However, the sponsor’s movement records show that she was offshore on the date of the car accident. This information was put to the applicant at the second hearing in accordance with s 359A of the Act. At the request of the applicant’s representative, the Tribunal adjourned the proceedings briefly to enable the applicant to discuss the information and consider whether he wished to respond orally or in writing. After the adjournment, the applicant’s representative submitted that the applicant wished to provide an oral response at the hearing. The applicant said his evidence about the sponsor’s involvement in the car accident was due to his poor memory and the passage of time. He said there was a second incident involving a scratch on their car and he may have confused the two events. The applicant apologised for the error.
I do not consider that the applicant’s response adequately explained the discrepancy. Although the car accident occurred more than more than five years ago, I am not persuaded that the applicant could have forgotten who was present with him in the car, particularly given his evidence that it was a serious accident, he was at fault and the car was written off. The details of the collision, including who was present with him in the car, are likely to be memorable. I consider that the applicant’s oral evidence regarding the sponsor being present in the car at the time of the accident was fabricated to support his case. I have placed weight on that inconsistency.
I did not find the applicant to be a reliable witness. He embellished his evidence, for example whether the sponsor caused injuries to his arm during the assault on 4 April 2021. He also gave contrary accounts of the same event at the first and second hearings, for example whether or not he was present when the sponsor came to the parties’ home to collect her belongings following the breakdown of the relationship. Some of the applicant’s oral evidence that was contrary to the documents submitted to support the application, for example how he first met the sponsor and where they were when he proposed. The applicant’s account of the incident that resulted in the sponsor being charged with assault on 4 April 2021 was also contrary to some of the information in the report by NSW Police, for example where the sponsor struck the applicant with her mobile phone. The applicant told NSW Police on the day after the incident that the sponsor struck him on the left forearm. However, he gave oral evidence at the hearing that the sponsor struck him three to four times on his face and head, and also that she grabbed his arm and caused scratches, resulting in bleeding and scarring. I concluded that the applicant’s oral evidence cannot be relied upon unless corroborated by a more reliable source.
Two of the applicant’s friends gave oral evidence at the first hearing and attested to the genuineness of the parties’ relationship. They claimed to have frequent contact with the parties prior to the breakdown of the relationship. I have had regard to their evidence.
The applicant was offered additional time to submit further documents to support the application after the second hearing, but both the applicant and his representative declined this offer. The applicant’s representative said that there is no further evidence that the applicant can provide because he is currently on bail and the conditions of his bail prevent him from accessing past bank accounts or social media sites.
Was there a spouse relationship?
Clause 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the applicant claims that at the time of application, on 29 June 2017, until the cessation of the relationship, on 4 April 2021, he was the spouse of the sponsor, who is an Australian citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Were the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant’s representative provided a copy of the parties’ marriage certificate to the Department at the time of application. There is no evidence before me to cast doubt on the validity of the parties’ marriage at [Suburb 1] [in] June 2017, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Were the other requirements for a spouse relationship met?
The financial aspects of the relationship
The applicant gave oral evidence that he did not have work rights during the almost four-year period that he claims the parties lived together. He said his mother and brother sent him money from India and that he used that money to help meet his living expenses. The applicant said the sponsor was employed on a full-time basis at [Workplace 1] when they first met and during the early stages of their marriage. She had a break of six to eight months between jobs and was then employed by [Employer] at [Suburb 3]. The applicant said he paid most of the rent and utilities for the parties’ home, although the sponsor contributed to their joint expenses.
The parties provided the Department with a copy of their joint [bank] account statements for the period 11 September 2017 to 10 March 2018. The statements show regular deposits, mostly in cash, and expenditure on items such as fuel, groceries, fast food and hardware supplies. From January 2017, fortnightly rent payments were deducted from the account. It is not clear from the account statements who was making the deposits into the account or using it for purchases. The joint bank account statements show minimal savings and do not support the applicant’s claims of shared day-to-day expenditure. The applicant gave oral evidence during the second hearing that the parties had $20,000 in joint savings. That assertion is not supported by the documents submitted.
The Tribunal requested in the hearing invitation to the second hearing that the applicant provide additional bank statements. His representative submitted that they have made numerous attempts to obtain the bank statements but were unable to do so. This is because the applicant is currently facing criminal charges on an unrelated matter and a condition of his bail prevents him from accessing more than one bank account. The applicant’s representative confirmed that the criminal matters are unrelated to the current application. The applicant declined to provide further details and the Tribunal is unaware what those proceedings relate to. The applicant’s representative requested that the Tribunal issue a summons to obtain the requested bank statements. As discussed at the hearing, I was not persuaded that issuing a summons to various banks was warranted given it would likely result in extensive delays. I am mindful that the applicant lodged his application to the Tribunal more than five years ago and has had ample opportunity to submit further evidence to support his claims regarding the financial aspects of the parties’ relationship. As noted above, his representative declined an offer for further time to provide additional documents.
I accept that the parties opened a joint bank account. They also had a joint lease for a property at [Street 1], [Suburb 4]. I am satisfied that the parties were both legally obliged to pay the rent for that property. The applicant gave oral evidence that the lease for the third property that the parties lived in together at [Street 2], [Suburb 4] was in his sole name because it was signed in a rush and there was insufficient time to include the sponsor’s name. That was unconvincing given the applicant’s oral evidence that the sponsor was working full-time. It is uncontested that she is an Australian citizen. In contrast, the applicant was on a Bridging visa and did not have work rights when the lease for the [Street 2] property was signed. I do not accept the applicant’s explanation regarding why the sponsor’s name was left off the [Street 2] lease.
I accept that the applicant had a life insurance policy with [Insurance] and that the sponsor was included on the policy. The benefit amount was $500,000 for both the applicant and the sponsor. The applicant gave oral evidence at the first hearing that he cancelled the policy some years ago. I have had regard to the evidence of the life insurance policy.
It is uncontested that the parties did not own any joint assets or have joint liabilities. The applicant claimed that he contributed to the purchase price for two cars that the sponsor owned during the parties’ relationship. He also claimed that he contributed to the purchase price for furniture for the parties’ home. I am not prepared to accept the applicant’s oral evidence about those matters in the absence of any independent or reliable corroboration.
The evidence from witnesses, including the statutory declarations, does not provide any insight into the financial aspects of the parties’ relationship.
I am not satisfied on the available evidence that the parties pooled their financial resources or shared day-to-day household expenses at any time. The financial aspects of the parties’ relationship do not support a finding that they were in a genuine and continuing spouse relationship at the time of application.
The nature of the household
The applicant gave oral evidence that the sponsor moved into a unit he was renting at [Street 3], [Suburb 4] prior to their marriage. They later moved to [Street 1], [Suburb 4] together, and finally to [Street 2], [Suburb 4]. [Street 3] and [Street 2] had two bedrooms but [Street 1] had only one bedroom. It is uncontested that the sponsor’s name was on the lease for the [Street 1] property but not on the leases for either [Street 3] or [Street 2].
The applicant claimed that the parties shared household chores, such as cooking and cleaning, although the sponsor did the majority of the tasks. The applicant said he often went grocery shopping. He also claimed that he drove the sponsor to and from work each day. Although the sponsor owned a car and had a driver’s licence, the applicant said the sponsor preferred that he drive her to and from [Suburb 4] to [Workplace 1 Location], and later [Suburb 3]. The applicant’s account of driving the sponsor to and from work each day was unconvincing given the distances involved and the impracticality of the claimed arrangement.
It is uncontested that the parties did not have any joint responsibility for the care and support of children.
The applicant’s evidence regarding the parties’ living arrangements was supported by the two witnesses at the first hearing; [Mr A] and [Mr B]. Both said they visited the parties at their home and witnessed their relationship. [Mr A] and [Mr B] also provided statutory declarations to support the application and attested to the genuineness of the relationship. [Mr B] said in his statutory declaration, dated 26 July 2024, that he attended the parties’ wedding and was a witness. [Mr B] described the parties as happily married. He said:
“…I invited them several times to my home, and they were a happy and genuine couple. I observed them as husband and wife in my home and in their home. And I visited them at their home twice and they were happy and they were showing me their new furniture for their matrimonial home. Everything seemed great.
They were in genuine and continuing relationship till [the sponsor] (sic) confided in me in 2020 that they were having disagreements. I did witness a verbal argument between them, but I left them [to] their own privacy…”
[Mr A] provided statutory declarations to the Department, dated 27 June 2017 and 7 November 2018. [Mr A] said in the latter statutory declaration that “…sometimes we visit them and have dinner together...”
[Mr B] confirmed the information in his statutory declaration at the first hearing. [Mr A] gave oral evidence that he has been friends with the applicant for nine or ten years. He attended the parties’ wedding and was a witness. [Mr A] said he socialised with the parties, and they once drove to the city together to get ice cream. The parties called him to help resolve their arguments. On one occasion, [Mr A] was at the home when the police were present. [Mr A] said that prior to their arguments, the parties were good together. I have placed some weight on the evidence from [Mr B] and [Mr A].
The applicant was aware that the sponsor travelled overseas in 2019 to visit her family in [Country 1]. However, as discussed above, the applicant incorrectly claimed that the sponsor was present in the car with him on 1 November 2019 when he had a car accident. Nonetheless, I accept on the basis of the documents submitted to the Tribunal from the insurance company that the applicant was driving the sponsor’s car when he had the accident. I have placed some weight on that evidence because it demonstrates that the applicant had access to a car registered and insured in the sponsor’s name while she was overseas.
The report from NSW Police, dated [April] 2021, states that the applicant was at his home address with some guests at around 1 am on Sunday, 4th of April 2021, when he became aware of the accused “…loitering around outside the unit complex yelling…” The sponsor returned later that day and loitered around again trying to speak with the applicant. The report says that “…[p]olice attended the accused’s home…” and placed her under arrest and took her [Suburb 4] Police Station. The sponsor’s address on the Final ADVO is recorded as [Street 1], but the applicant’s address on the police report of the incident on 4 April 2021 is the [Street 2] property.
The report from NSW Police is persuasive evidence that the sponsor was not living with the applicant when she was arrested by police. While the report contains some redactions to protect the parties’ privacy, the key information remains. It is unclear why the sponsor would be “loitering around the unit complex” if she lived there and had a key to the parties’ apartment. Furthermore, the applicant gave conflicting accounts of what occurred on the evening of 4 April 2021. He gave oral evidence at the second hearing that the sponsor entered the [Street 2] apartment and began yelling once he saw his friends were present. According to the applicant, the sponsor followed him to an outdoor corridor and began assaulting him. This contradicts his report to NSW Police that the sponsor was in the common area when she began yelling at him.
There is some evidence to support the applicant’s claims regarding the parties’ joint living arrangements This includes but is not limited to statutory declarations and oral evidence from witnesses, the joint lease for the [Street 1] property, correspondence sent to mutual addresses, statements the sponsor made to the Department (discussed further below), and documents that show that the applicant was driving the sponsor’s car while she was overseas. However, there is persuasive evidence from independent and credible sources that the parties did not live together at [Street 2], including the NSW Police report and the Final ADVO. The report from the applicant’s psychologist also undermines his claims regarding the parties’ joint living arrangements from August 2020. I have concluded that the applicant’s oral evidence about the parties’ living arrangements was not truthful and cannot be relied upon. After having regard to the evidence before me, I am not satisfied that the parties lived together as spouses or established a joint household at [Suburb 4], or elsewhere, prior to 4 April 2021.
I find that the evidence presented as to the nature of the household is not consistent with the applicant and his sponsor being in a genuine and continuing spouse relationship at any time.
The social aspects of the relationship
The parties were married in [Suburb 1] in June 2017, and I accept on the basis of the photographs submitted that a small number of guests attended the wedding and celebrated with the parties afterwards. While there were no family members at the wedding, I accept that this is because all family members live overseas. Some of the applicant’s close friends, including [Mr A] and [Mr B], attended the parties’ wedding. When asked whether any of the sponsor’s friends attended, the applicant claimed that the sponsor was close friends with [Mr B]’s wife. The applicant gave oral evidence at the hearing that the sponsor’s had two close friends; [Ms D] and [Ms E], but that the sponsor did not want to tell anyone about the wedding because it was arranged very quickly. Furthermore, the sponsor was reluctant to discuss her personal life with anyone. While I accept the sponsor was friends with [Mr B]’s wife, I consider it significant that the sponsor did not invite her close friends, [Ms D] or [Ms E], to the parties’ wedding given the importance of the occasion. The applicant claimed that [Ms D] and [Ms E] often visited the parties’ home on weekends. His explanation regarding why the sponsor’s two closest friends did not attend the parties’ wedding was unconvincing.
Both [Mr A] and [Mr B] claimed that they socialised with the parties at each other’s homes. [Mr B] gave oral evidence at the first hearing that the parties’ attended a small birthday gathering at his home in October 2020. I have had regard to that evidence.
The applicant gave oral evidence that the parties went on a short holiday to the Gold Coast and a day trip to the Blue Mountains together. He gave conflicting evidence about whether the trip to the Gold Coast was before or after the parties’ wedding. The Tribunal was not provided with any photographs or travel receipts to corroborate his claims about those trips, or the parties’ attendance at social events with others. The applicant said he has numerous photographs on social media, such as [social media], but is unable to access them due to the conditions of his bail. I am mindful that the application was lodged to the AAT in 2019 and the applicant is represented. In that context, it is unclear why the applicant’s representatives did not submit additional photographs to support the applicant’s claims regarding the social aspects of the parties’ relationship prior to the first hearing in August 2024. Even if the applicant cannot obtain that evidence from his own social media accounts, his friends would likely have access to photographs of the parties together at joint social gatherings. The applicant said in his statement to the Tribunal, dated 5 August 2024, that he held his birthday celebration at a restaurant in [Suburb 5] with many friends. The applicant said the parties were “…great as husband and wife and our relationship was strong…” One or more of the applicant’s friends would likely have taken photographs of the parties together at the event if it occurred as the applicant described.
[Mr F] provided a statutory declaration to the Department to support the application, dated 26 June 2017. He said he has known the applicant for three years but left blank how long he has known the sponsor. [Mr F] provided limited detail about his interactions with the sponsor, and it is not entirely clear whether he had ever met her in person, although the applicant claimed at the hearing that he had. [Mr F] said “…[t]there is nothing fake in be found in this relationship. This relationship is 100% genuine…” I did not find [Mr F’s] statutory declaration to be persuasive in the absence of clear information regarding how long he has known the sponsor and whether he has actually met her. I accept that the applicant told [Mr F] about the parties’ relationship.
After having regard to the evidence from [Mr A] and [Mr B], I accept that the parties attended some social events with a small group of the applicant’s friends and held themselves out to those friends as being married to each other. I am satisfied that the witnesses, including [Mr F], believed that the parties were in a genuine and continuing spouse relationship. In the context of the applicant’s claims that the parties lived together for approximately four years, the evidence submitted to corroborate the nature and extent of participation in joint social activities is limited.
The applicant saw a psychologist after the breakdown of the relationship. I am satisfied that he disclosed the relationship to the psychologist, although the psychologist’s report was evidently obtained to support his family violence claim.
There is limited evidence to suggest that the parties represented themselves to others more broadly in the community as being married to each other. I am not prepared to accept that they planned joint social activities. There is nothing in the report from NSW Police, dated [April] 2021, to suggest that the applicant advised the police that the parties were living together when they visited the [Street 2] property. On the contrary, the report indicates that the parties were living at different addresses when the applicant contacted the police about the assault.
The applicant gave oral evidence that he spoke with the sponsor’s parents in [Country 1] by telephone, and they were aware of and supported the relationship. The applicant said he also told his mother and brother that he was married. In the absence of any corroborating evidence, I am not prepared to accept that the parties’ families were aware of or supported the relationship.
The social aspects of the relationship are not consistent with the applicant and the sponsor being in a genuine and continuing spouse relationship at any time.
The nature of the persons’ commitment to each other
I am satisfied that the parties were married in June 2017 and divorced in 2022. The applicant gave oral evidence that the parties lived together for around four years and that their relationship broke down in April 2021. Given the numerous discrepancies in the evidence outlined above, I am not prepared to accept that the parties ever lived together.
The sponsor advised the Department in August 2018 and January 2019 that the parties’ relationship had broken down and she wished to withdraw her sponsorship. On both occasions, the sponsor subsequently retracted her withdrawal. Copies of the relevant file notes regarding the withdrawals and retractions were provided to the applicant’s representative at the second hearing. As discussed above, I am satisfied that the non-disclosure certificate issued by the Department that purports to encompass those file notes is not valid.
On 21 August 2018, a Department officer attempted to contact the applicant but could not get through. The officer called the sponsor to verify the applicant’s number. The sponsor advised that she wanted to put the Partner visa application on hold and said there was conflict in the relationship. The sponsor said the parties were still together and sleeping in the same bedroom. The sponsor denied there was any violence. The officer said the application could not be put on hold. The sponsor then said that she wished to withdraw the sponsorship. In response, the officer sent a sponsorship withdrawal form to the sponsor.
On 12 September 2018, the sponsor sent an email to the Department and said:
“Hi there
Hope u doing well I think there is a misunderstanding i have never confirmed that this relationship is breaking down we me (sic) [the sponsor] and [the applicant] still living together and we are in relationship.
Thank you
[the sponsor]”
A Department officer telephoned the sponsor on 12 September 2018 and the applicant was reportedly present with her and spoke with the officer. The officer recorded in a file note that sponsor was very evasive, and the officer was not sure whether the male she spoke with was actually the applicant. The officer called again the following week and a male answered the phone and passed it to the sponsor. The sponsor was reluctant to speak and said she would call back. However, the sponsor did not request the number. Subsequent attempts to call the applicant were unsuccessful.
On 29 January 2019, the sponsor wrote to the Department and advised that she wished to withdraw her sponsorship. The next day, the sponsor said the following in an email to the Department:
“Hi dear
I’m sorry this email has been sent by mistake while I was drank (sic) last night I made a silly jok (sic) with my husband im really sorry we do still together I do want my application to be continued.”
The applicant’s representative submitted at the second hearing that the file notes confirm the parties were in a relationship, albeit a volatile one, and living together.
It is not clear from the file notes whether identity checks were conducted with the applicant when the Department officer reportedly spoke with him in September 2018. While it is possible that the parties were together when the Department officer called, there is insufficient evidence to reach a finding about this. I have nevertheless placed some weight on the emails from the sponsor and the file notes made by the Department officers regarding contact with the parties.
The applicant’s oral evidence regarding when and how the parties first met contradicted his statement to the Tribunal, dated 5 August 2024. In the statement, the applicant said the sponsor knew him from [Workplace 1] because she was employed there, and he was a regular visitor. The applicant said the sponsor contacted him via social media and they exchanged phone numbers and arranged to meet. The parties then met at the [Cafe] for a date on 23 December 2016. In contrast, the applicant gave oral evidence at the second hearing that he met the sponsor randomly at the [Cafe] in December 2016. He claimed that she happened to be at the cafe by chance and he struck up a conversation with her. When asked about this discrepancy during the hearing, the applicant said he did not consider the way the parties met to be important. I did not find the applicant’s explanation to be persuasive and consider that both versions given by the applicant regarding how the parties met are inherently implausible.
The applicant gave oral evidence at the hearing that he proposed to the sponsor at a restaurant in [Suburb 6] on Valentine’s Day in 2017. However, in his statement to the Tribunal, referred to above, the applicant said he proposed at [a] Restaurant in [Suburb 7] on 25 April 2017. When this was raised with him at the hearing, the applicant claimed that the event happened many years ago. I do not accept that such a significant event in the applicant’s life could be so easily forgotten. While he may not recall the specific date, it is implausible that the applicant would forget the venue of the proposal.
The applicant gave oral evidence that NSW Police attended the parties’ home in December 2017 and August 2020 after the sponsor falsely claimed that he had slapped and choked her. The applicant said an interim ADVO issued after the August 2020 incident was later dismissed. The Tribunal has not been provided with a copy of the interim ADVO. The applicant denied that he had ever assaulted the applicant. He said he presented to [Suburb 8] Police station in August 2020 because he was staying with a friend in [Suburb 9]. The applicant’s explanation regarding why he attended [Suburb 8] Police Station rather than [Suburb 4] or [Suburb 9] Police Stations was confusing and not plausible.
As discussed above, the applicant claimed that the sponsor was present with him when he had a car accident on 1 November 2019. However, the sponsor was offshore at the time. The applicant’s explanation did not adequately explain the discrepancy, in particular as he gave reasonably detailed oral evidence about her reaction following the accident. As noted elsewhere, I am nonetheless satisfied that the applicant was driving the sponsor’s car at the time of the accident.
The applicant demonstrated some knowledge of the sponsor’s family, including that one of her brothers lives in [Country 2]. The applicant could not recall the name of the sponsor’s mother. As discussed above, the applicant was aware of the sponsor’s two closest friends and claimed that they visited the parties’ home on weekends. I am not prepared to accept that assertion in the absence of any photographs or other independent evidence.
The applicant claimed that the parties intended to visit India and have a child together. The applicant’s account of the parties’ plans for the future was vague and unconvincing. I do not accept that the parties genuinely intended to start a family.
There is little independent evidence of any commitment to the relationship by either party. The statutory declarations and oral evidence provided by the applicant’s friends do not outweigh the other evidence before me regarding the nature of the parties’ relationship. I am not prepared to accept that the parties ever provided one another with emotional support or that they saw the relationship as long-term.
After having regard to all of the evidence before me, I concluded that the nature of the commitment the applicant and her sponsor showed to each other was not indicative of a genuine and continuing spouse relationship at any time.
Conclusions on spouse/de facto criteria
Given the above findings, I am not satisfied that the applicant and his sponsor ever had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship was genuine and continuing. I am not satisfied that the applicant and his sponsor have ever lived together or did not live separately and apart on a permanent basis. I therefore find that the applicant does not meet the definition of ‘spouse’ in s 5F(2)(b)-(d).
Consequently, I am not satisfied that the applicant met cl.820.211(2)(a) of the Regulations at the time of application.
Does the applicant meet the Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.
The applicant’s last substantive visa ceased on 13 December 2013, and he lodged the Partner visa application on 29 June 2017. Having regard to the definition of the relevant day in criterion 3001(2), I find that the applicant did not make the application within 28 days of the relevant day, which was 13 December 2013.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
The applicant said in his statement to the Tribunal, dated 5 August 2024, that he is living with his new partner and her two children. The applicant said he is the sole breadwinner of the household and is the father figure for the children. Furthermore, the children love him, and he loves them like they are his own children. The applicant said his new partner would not be able to survive without him if he had to leave Australia.
The applicant gave oral evidence at the second hearing that his new partner, [Ms D], receives a Centrelink carer payment in recognition of the care she is providing to her father. She also receives family tax benefit for her two children. In total, [Ms D]’s income is around $800 per week. The applicant said they pay rent of $620 per week. Both of [Ms D]’s children attend the local public school. The youngest child has recently been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD) and must attend specialist appointments, which cost $500 each. The applicant said the children’s father does not have contact with them or provide any financial support. The applicant gave oral evidence that [Ms D] is depressed because they have many problems at present. She is not receiving any treatment but has an appointment with a psychologist. The applicant said [Ms D] is also depressed because she wants a child. She is [Age] years old, and terminated a pregnancy around six months ago because they did not feel they could cope with any additional stress. The applicant said [Ms D] lived with her sister before she began living with the applicant.
I accept that the applicant has formed a relationship with [Ms D] and that they have been living together since February 2023. They had an Islamic religious wedding but have not yet registered their marriage. I am also satisfied that the applicant has formed a positive and supportive relationship with [Ms D]’s two children and that the youngest child had been diagnosed with ADHD and ODD. However, there is no medical, allied health or other independent evidence before me to suggest that either [Ms D] or her children’s physical and/or mental health would be adversely affected by a period of physical separation from the applicant. [Ms D] and her children could maintain a relationship with the applicant during the period that it takes to process a Partner visa offshore by telephone and/or video. I am not persuaded that providing emotional care and support is dependent upon living in the same household.
While I accept that the applicant is working and providing a financial contribution to the household, [Ms D] is receiving Centrelink income support payments and family tax benefit of around $800 per week. The applicant gave oral evidence that his family in India operates an import/export business. The applicant claimed his family sent money to him when he did not have work rights to support him in Australia. The applicant could potentially generate some income from the family business while offshore and continue to provide financial support to [Ms D]. I am not persuaded that requiring the applicant to lodge a Partner visa application offshore would cause financial hardship to [Ms D] or her children. [Ms D] could potentially move to less expensive accommodation or live with family members, as she has done in the past.
In relation to [Ms D]’s desire to have a child, I accept the applicant’s oral evidence that [Ms D] is currently [Age] years old. The applicant said [Ms D] terminated a pregnancy in 2024 because of the current stressors in their life. These stressor include the applicant’s visa status and criminal charges. There is no medical or other independent evidence to suggest that [Ms D] had any difficulty conceiving a child last year. On the contrary, the applicant’s evidence indicates that the pregnancy was unplanned. I am mindful of [Ms D]’s age but am not convinced that she would be unable to conceive a child after the applicant’s Partner visa was processed offshore.
I accept that the applicant and [Ms D] do not wish to live apart. However, [Ms D] could travel to India or a third country to spend time with the applicant for a short period to enable them to maintain physical contact.
I have had regard to the evidence submitted to support the claim of family violence, including that the sponsor was found guilty of assaulting the applicant and that a Final ADVO was granted for a period of two years from [May] 2021 to protect the applicant from the sponsor. I accept the submissions made by the applicant’s representative at the first hearing that the Final ADVO meets the requirements for a judicial claim of family violence.
The applicant told me on a number of occasions during the hearing that he remains traumatised by the sponsor’s conduct. The undated report by the applicant’s psychologist, [Mrs C], corroborates the applicant’s account of the impact of the sponsor’s conduct on his mental health. [Mrs C] said she assessed the applicant between 28 April and 9 June 2021, which was shortly after the sponsor assaulted the applicant. Some of the information the applicant provided to [Mrs C] is contrary to the claims he made to the Tribunal. For example, the applicant told [Mrs C] that he moved out of the parties’ home to his current address at [Street 2] after the sponsor assaulted him by scratching his arm in August 2020. In contrast, the applicant gave oral evidence at the hearing that the parties were living together at the [Street 2] property when the sponsor moved out and subsequently collected her belongings following the assault on 4 April 2021.
Some of the applicant’s oral evidence regarding the assault on 4 April 2021 contradicted his earlier account, including where the sponsor struck him with her phone (his arm rather than his face) and whether she was inside or outside of the [Street 2]apartment when she began raising her voice at him. The applicant also claimed that the sponsor grabbed his arm and scratched him with her fingernails during the incident, which drew blood and caused scarring. The applicant said the scarring requiring specialist treatment. However, that injury was not mentioned in the NSW Police report. On the contrary, the report expressly states that the applicant did not sustain any physical injuries as a result of the assault. The only reference to injury in the police report is temporary pain and redness to the applicant’s arm caused by the sponsor hitting him with her mobile phone. As discussed above, the Final ADVO states that the sponsor was living at [Street 1] rather than at the [Street 2] property, which contradicts the applicant’s evidence. It is uncontested that the applicant was assaulted by the sponsor on 4 April 2021. Nonetheless, the numerous discrepancies in the applicant’s account are troubling, and I am not convinced that they are explicable by the passage of time.
I have considered all of the above issues separately and cumulatively and am not satisfied that there are compelling reasons to not apply the Schedule 3 criteria. Consequently, the applicant does not meet cl.820.211(2)(d)(ii).
Overall conclusions
The applicant has claimed that he experienced family violence committed by the sponsoring spouse. As indicated above, in order to rely upon a claim that the applicant satisfies cl.820.221(3), the applicant must show that he would meet the requirements of cl.820.221(1), including the requirement of being the spouse of the sponsoring partner, except that the relationship has ceased. As the Tribunal has found that the applicant and the sponsor were never in a spousal relationship as defined in s 5F of the Act, the applicant does not meet cl.820.221(3) and it is not necessary to consider the claim of family violence.
There is no evidence before the Tribunal that the applicant meets any of the alternative sub criteria.
As the applicant does not meet the essential criteria for the visa, the Tribunal affirms the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Hearing dates: 6 August 2024 and 19 February 2025
Representatives for the Applicant: Ms Nuha Bayad and Mr Nicholas Poynder
ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being married to each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b)on 31 August 1994, the applicant was either:
(i) an illegal entrant; or
(ii) the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii) any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f)either:
(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
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