1919916 (Migration)

[2024] AATA 761

1919916 (Migration) [2024] AATA 761 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Adrian Joel (MARN: 9357728)

CASE NUMBER:  1919916

MEMBER:Maxina Martellotta

DATE:1 February 2024

PLACE OF DECISION:  Perth

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

·cl 820.211(2)(c) of Schedule 2 to the Regulations;

·cl 820.221(4) of Schedule 2 to the Regulations.

Statement made on 01 February 2024 at 2:11pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous sponsorships resulting in grants of visas – compelling circumstances to waive requirement – sponsor’s long residence and no significant ties in birth country – long relationship and valid marriage – property and finances – sponsor’s previous family violence and mental health – elderly mother’s health – credible and corroborated evidence – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.20J(1)(a), (2), Schedule 2, cls 820.211(2)(c), 820.221(4)

CASES

Babicci v MIMIA [2004] FCA 1645; [2005] FCAFC 77

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth).

2. The applicant applied for the visa on 8 March 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221 because of the sponsorship limitations set out in reg 1.20J. Specifically, the delegate was not satisfied that the sponsor’s circumstances were sufficiently compelling to waive the limitation. The delegate identified that they were dealing with the ‘time of decision’ criteria and were not otherwise considering the ‘time of application’ requirements under cl 820.211(2).[1]

   [1]The delegate did not address the other criteria pertaining to the genuineness of the relationship.

4. The applicant appeared before the Tribunal on 23 January 2024 by Microsoft Teams to give evidence and present arguments. The Tribunal also received oral evidence from his sponsor, the sponsor’s daughter and the sponsor’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. In the Tribunal’s assessment, the oral evidence presented at hearing impressed as credible and was corroborated by other materials before the Tribunal. Other evidence considered by the Tribunal included materials provided by the applicant to the Tribunal (including a copy of the delegate’s decision) and materials in the Department file.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Consideration of claims and evidence

8. The issue in the present case is whether the sponsorship limitations apply and if so, whether there are compelling circumstances affecting the sponsor such that the limitation does not apply.[2]

   Are the sponsorship requirements met?

9. Clause 820.211 requires that, 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).

10. At the time of decision, cl 820.221(4) requires that (amongst other things) if cl.820.211(2)(c) requires the applicant to be sponsored,  the sponsorship must have been approved by the Minister and still be in force. For visa applications made on or after 18 November 2016, the sponsor must also have consented to the Department disclosing 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.

    Sponsorship limitations

11. 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.

12. Reg.1.20J(1) requires the Minister not approve the sponsorship of the applicant unless the Minister is satisfied that:

    (a)  not more than 1 other person has been granted a relevant permission as:

    (i) the spouse, de facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or

    (ii) a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and

    (b)  if another person has been granted a relevant permission in the circumstances referred to in paragraph (a)—not less than 5 years has passed since the date of making the application for that relevant permission; and

    (c) if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination—not less than 5 years has passed since the date of making the application for that relevant permission.

13. In this case, it is common ground and not in contention, that two other people have previously been granted relevant permission as the spouse, de facto partner or prospective spouse of the sponsor based on a sponsorship or nomination. The delegate’s record of decision and the sponsor confirmed in her evidence that she has two previous sponsorships ([Years]), which each resulted in the grant of a partner visa. The Tribunal is satisfied that for this reason the sponsorship limitation in reg 1.20J(1)(a) applies.

14. As noted, reg 1.20J(2) provides that despite the limitation, the Minister may approve the sponsorship if satisfied that there are compelling circumstances affecting the sponsor.

15. According to the oral evidence and written submissions:

    a)The applicant has not been previously married or in a de facto relationship and has no children.

    b)The sponsor (born in [Year]) was granted Australian citizenship in [Year].

    c)The sponsor divorced from her first husband in [Year]. There is one child of that relationship who is now an adult.

    d)The sponsor divorced from her second husband in [Year]. There were no children from that marriage.

    e)The applicant and sponsor first met each other in 2014 through [an Activity] group.  At the time, the applicant was on a student visa.  Their relationship developed from friendship and the applicant and sponsor claim that they commenced living together as a de facto couple from around Christmas 2015.

    f)They registered their relationship in September 2016.

    g)On 8 March 2017 the applicant lodged his partner visa application claiming to have been in a de facto relationship with the sponsor.

    h)In January 2019 the applicant and sponsor were married.

    i)The applicant and sponsor do not have any dependent children.

    j)Since late 2015 they have lived together in the same house.

    k)In 2020 they purchased a four bedroom property.  Currently, due to the applicant’s visa status, the property and mortgage are solely in the sponsor’s name.  Should he be granted permanent residence then the intention is for the property to be registered in joint names. The applicant contributed towards the deposit from his personal savings. He contributes to the mortgage repayments.

    l)That property is rented out because it is not located close to the applicant and sponsor’s respective employment. Their aim is to one day reside in the property together with the sponsor’s mother.

    m)They live in a rental property. They reside in that property on their own. The tenancy is in their joint names.

    n)The applicant and sponsor operate two joint accounts and pool all their financial resources.  The applicant stated that he mainly pays for the rent and associated household expenses. Whatever money they have is pooled and from that joint pool their expenses are met. The rental income received from the property they have bought is jointly utilised to meet their expenses including the mortgage.

    o)The applicant stated he has recently started his own [business]; the sponsor gave evidence that she works as [an Occupation]. These occupations are their main source of income.

    p)The sponsor’s income was significantly impacted and reduced due to COVID-19, but she also has had mental health issues, which has meant that her income has radically reduced over the last few years.

    q)The applicant, as a result, is the person who is predominately contributing to their joint financial resources and as such it is his financial contributions that are currently mainly meeting their joint household expenses and liabilities.

16. The applicant stated that he was aware that the sponsor had been previously married, but it was only because of this process that he learnt of the circumstances in which those relationships ended; particularly, he became aware that the second marriage allegedly involved family violence and intimidation directed at the sponsor by her then husband.

17. The applicant and sponsor gave evidence that the sponsor’s mother is elderly and lives in her own home located about 30 minutes away. The sponsor said that she provides weekly support to her mother, which includes preparation of meals and otherwise being available to provide assistance as and when it is required.

18. The sponsor’s mother gave evidence confirming the above arrangements. She said that she is not currently receiving any home supports from any service providers. She is not sure why she has not been assessed as eligible to receive those supports. She gave evidence that her daughter had poor previous marriages but her current relationship is strong and stable. The applicant is an important part of their family.  She is concerned about her daughter’s wellbeing should she be required to choose between her home here in Australia and following her husband to South Korea.

19. The applicant said that if the sponsorship were not approved, the sponsor would experience significant detriment.  He said that she has lived in Australia for many years and apart from him, her only family are her elderly mother and her adult daughter.  His wife has struggled with her mental wellbeing for some years and if they were forced to separate, he is genuinely concerned for her ability to continue. It is not a viable option for her to return to South Korea as her daughter and mother live in Australia, she has no close family in that country, and it would be difficult for her to find employment.   The family in Australia have developed a very strong and deep bond, and if they were unable to be together, he very much doubts that the sponsor would be able to cope.

20. The sponsor provided the following evidence about the impact that refusal of her sponsorship would have upon her:

    a)She is an only child. Her biological father passed away when she was young. Her mother remarried and together with her mother and stepfather she immigrated to Australia in [Year] when she was about [Age] years of age.  She does not have any family relationships back in South Korea.

    b)She was quite young and inexperienced when she married her first husband. It was never a happy marriage, and her husband became indifferent and disinterested in her. She was subjected to constant humiliation. Her husband was unfaithful. The experience of that relationship had a profound impact on her sense of self-worth.

    c)The end of the marriage was traumatic, and she was struggling to raise their child as a single parent. This resulted in her daughter living with her ex-husband in South Korea for a time which had a significant impact on their relationship.

    d)Her second marriage was also very difficult.  In that marriage, she was subject to domestic violence and intimidation. This often took place in front of her daughter. It resulted in police attendance on occasions, and she ultimately took out a violence restraining order (VRO). She was also left with debts from that relationship and declared bankruptcy.

    e)In contrast, her relationship with the sponsor has been a supportive and loving one. She has experienced happiness, stability and support.

    f)Refusal of her sponsorship and the visa has had a devastating impact upon her mental health and wellbeing.  She has significant and strong ties to Australia. It is where she has lived for many years, and it is her home. She has established family, personal and work relationships. Her mother and daughter both live in Australia. They are Australian citizens.  Being forced to choose between leaving Australia to be with her husband or to remain in Australia is impossible.

    g)She has struggled for years with her mental wellbeing, which has been particularly impacted by the negative experiences of her two previous marriages. Her anxiety and depression have impacted her earning capacity as [an Occupation] as she has found herself, at times, too unwell to work.  She has become increasingly financially reliant upon the applicant, particularly when her income was significantly impacted by the COVID-19 pandemic.

    h)If she were required to relocate to South Korea, she and the applicant face an uncertain financial future. She could not easily find employment there. She holds concerns about her mother’s health and support needs as her mother ages. She wants to be present to provide support to her mother as well as maintain her relationship with her adult daughter.

    i)If she were to be separated from her husband, this would be very traumatic for her. She and he are in a loving, supportive relationship, unlike her previous marriages. She does not know what she would do.

21. In support of her evidence the sponsor provided copies of her application and final apprehended violence order ([Year]) issued against her second husband. The applicant also provided a psychological report prepared by a registered psychologist. That report, dated January 2024, provides the following information:

    a)The sponsor reported the onset of mental health issues as coinciding with her second marriage, in which she experienced physical and mental trauma.

    b)She has reported that her marriage to the applicant has significantly increased her mental wellbeing. The uncertainty of the visa application has resulted in significant anxiety and stress.

    c)DASS 21 results and an interview with the sponsor indicate that she is experiencing significant psychological distress due to anxiety, stress and depressive symptoms.

    d)In the report writer’s opinion, the sponsor’s symptoms are due to the considerable emotional, financial and physical abuse experienced in her second marriage and the reoccurrence of these symptoms have been triggered by the uncertainty of the applicant’s visa application. Further, the writer opines that separation would result in the sponsor experiencing a severe exacerbation of her symptoms.

22. The sponsor’s daughter provided evidence, which included the following:

    a)She is the sponsor’s only child.

    b)She was separated from her mother for a period when she lived in South Korea with her biological father. That was a difficult time for her  until she returned to live with her mother in [Year].

    c)Her mother’s second marriage was characterised by insults, violence or threats of violence and murder. She experienced this personally living with her mother and her then husband.

    d)She has observed her mother’s trauma from that marriage.

    e)Their family connections are in Australia, they consist of her mother, her grandmother and the applicant. It would have a significant impact on her mother and their family if the applicant were required to return to South Korea. If her mother relocated to South Korea, she would be without her family supports, but if she remained in Australia she would be without the support of the applicant.

    f)She holds significant concerns for her mother’s emotional wellbeing.

23. Regulation 1.20J is concerned with preventing serial sponsorship. It allows sponsorship approval in circumstances where a sponsor has successfully sponsored more than one partner, only 'if the Minister is satisfied that there are compelling circumstances affecting the sponsor'. In this provision the compelling circumstances must specifically affect the sponsor.

24. The expression ‘compelling circumstances’ is not defined in the legislation.  Whether there are compelling circumstances affecting the sponsor is a matter of fact and degree for the Tribunal to determine.  The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

25. Unlike other instances where compelling circumstances must be considered in the Regulations, in the context of reg 1.20J, those circumstances must affect the sponsor.  The legislative intention of this provision can be found in the Explanatory Statement, which indicates that the Minister can approve sponsorships or nominations if ‘compelling circumstances’ exist. These include, but are not limited to:

    ·The previous spouses, de facto partner or interdependent partner has died;

    ·The previous spouse, de facto partner or interdependent partner has abandoned the sponsor or nominator and there are children requiring care and support;

    ·The new relationship is long-standing; or

    ·There are dependent children of the new relationship.

26. Other considerations include:

    ·The nature of the hardship/detriment that would be suffered by the sponsor if the sponsorship were not approved; and

    ·The extent and importance of the ties the sponsor has to Australia, and the consequent hardship/detriment that would be suffered if the sponsorship were not approved and the sponsor were to feel compelled to leave Australia to maintain their relationship with the applicant.

1. In Nagaki v MIBP the Court identified particular circumstances which of themselves could not constitute compelling circumstances in the context of reg 1.20J:

   ·The genuineness of the relationship between the applicant and sponsor could not, in and of itself, constitute a compelling circumstance affecting a sponsor. The Court commented that, were it otherwise, every applicant who demonstrated that they were a spouse for the purposes of cl 820.211(2)(a) would fall within the exception in reg 1.20J(2).[3]

   ·An applicant’s entitlement to fast-track the process of obtaining a Partner (Residence) visa on the basis of being in a partner relationship for three years or longer within the definition of ‘long-term partner relationship’ in reg 1.03, cannot amount to a compelling circumstance affecting the sponsor for reg 1.20J(2). The definition of long-term partner relationship in reg 1.03 has no statutory relevance or application for the purposes of reg 1.20J(2).[4]

   [3] Nagaki v MIBP [2016] FCCA 1070 at [58].

   [4] Nagaki v MIBP [2016] FCCA 1070 at [69].

2. The Tribunal has taken into account all of the matters put forward by the sponsor and is satisfied that there are compelling circumstances for waiving the requirements of reg 1.20J.  In reaching this conclusion, the Tribunal makes the following findings of fact regarding the sponsor:

   a)She migrated to Australia in [Year].

   b)Her elderly mother and adult daughter both are Australian citizens who live in Australia. She does not have any significant family ties with South Korea.

   c)She has an established career as [an Occupation] in Australia.

   d)In recent years her earning capacity as [an Occupation] has diminished due to a combination of COVID-19 and health related issues.

   e)She was named as the protected person in a VRO issued in [Year].

   f)She has known the applicant since meeting in 2014, has lived with the applicant since December 2015, their relationship was registered in 2016  and they married in January 2019.

   g)She has been diagnosed as experiencing severe anxiety and depression.

3. The Tribunal accepts the sponsor’s evidence regarding the circumstances of her first two marriages which ended in divorce. In the Tribunal’s assessment, the sponsor acted in good faith in the sponsorship of her previous partners.  The Tribunal also accepts the evidence presented regarding the impact of current circumstances upon the sponsor’s mental health and wellbeing and the impact that separation from the applicant or separation from her elderly mother and daughter in Australia would have on her. The oral and written submissions on this aspect are supported and corroborated by the clinical conclusions provided by the registered psychologist. 

4. The Tribunal is also satisfied that there are compelling circumstances arising from the following:

   a)The increased financial reliance the sponsor has upon the applicant due to the reduction in her work capacity.

   b)The financial impact on the sponsor if she were to relocate to South Korea given that she has no significant ties with that country.

   c)The length of time the sponsor has lived and worked in Australia, and her family ties to this country which would be negatively impacted if she was required to move to South Korea.

   d)The length of the sponsor and applicant’s relationship.

5. The Tribunal is satisfied that compelling circumstances are established that affect the sponsor which justify the exercise of the waiver provision.

6. As noted, cl 820.211(2)(c) requires that the applicant is sponsored, if their spouse or de facto has turned 18, by the spouse or de facto partner.  For the purposes of cl 820.211(2)(c) the Tribunal is satisfied that the applicant is sponsored by their spouse, a person who has turned 18 years.[5] There was also no evidence that demonstrates that any of the other sponsorship limitations as referenced have application in this matter.[6] The Tribunal also notes that according to the signed Form 40, the sponsor consented to the Department disclosing to the applicant any relevant convictions. The Tribunal is satisfied that the requirement in cl 820.211(4)(b) is satisfied.

   [5] Materials on the Department file confirm the sponsor was born in 1971.

   [6] Regulations 1.20KA, 1.20KB and 1.20KC.

7. On the evidence before the Tribunal, the requirements of cl 820.211(2)(c) and cl 820.221(4) are met.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

9. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

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

   ·cl 820.221(4) of Schedule 2 to the Regulations.

   Maxina Martellotta
   Member

   
   

   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).